Gundy v. United States: Revisiting the Nondelegation Doctrine, or Not?

The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine.  Instead, the Court upheld the federal government’s authority under the Sex Offender Registration and Notification Act (SORNA), a 2006 law requiring sex offenders to register with authorities in the state where they reside. A plurality of the Court held that the statute contains enough of an “intelligible principle” to guide the Attorney General’s decision-making regarding the statute’s application to past offenders to pass muster under the nondelegation doctrine.  It also decided that the statute was explicit enough in specifying its retroactive application to pre-SORNA offenders.  Justice Alito joined the Court’s four liberals, concurring in the judgment only.  He reasoned that “it would be freakish to single out the provision at issue here for special treatment” different from the Court’s approach since 1935. And he could not “say that the statute lacks a discernable standard that is adequate under” that prevailing approach. However, he also stated that he would be willing to join a Court majority in reconsidering that approach in a future case.  No such majority existed here, perhaps in part because Justice Kavanaugh did not participate in the case.

This teleforum will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and explore questions such as:

• Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems?
• Why didn’t the Court order new oral argument in the case with Justice Kavanaugh participating this time?
• Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General?
• Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived?

Featuring: 

Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance.

Listen here!