The Supreme Court is considering a challenge to a sex-offender registration law that could have wide-ranging consequences for the structure of the federal government. The eight-member court heard oral argument on the second day of its new term in Gundy v. United States. The court must decide whether the Sex Offender Registration and Notification Act (SORNA) is an unconstitutional delegation of Congress’ lawmaking power to the attorney general because it grants the authority to decide whether the law applies to sex offenders who were convicted before SORNA was passed.

SORNA makes it a federal crime for defendants who are convicted of state and federal sex offenses to fail to register as sex offenders. SORNA left open the question whether it applied to defendants who were convicted before it was enacted.  Rather than resolve the question itself, Congress gave the Attorney General the authority “to specify the applicability” of SORNA’s requirements to pre-act offenders. Shortly after SORNA was passed, the attorney general promulgated rules applying SORNA to all pre-act sex offenders.

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