Stephen Miller of Cozen O’Connor.

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.

The current challenge to SORNA began with Herman Gundy, who was convicted of a sex offense in Maryland in 2005, before SORNA was passed. Two months after Gundy was released from prison in 2012, he was arrested, charged and ultimately convicted of failing to register as a sex offender under SORNA.

Gundy argues that his conviction is unconstitutional because SORNA gives the attorney general unguided authority to make criminal laws in violation of the nondelegation doctrine. This doctrine is a principle that Congress cannot delegate the power to make laws to other branches because the Constitution assigned that power to Congress. Gundy argues that SORNA violates the nondelegation doctrine because it gives the attorney general the power to decide whether the law applies retroactively. This delegation is especially troubling in the criminal context, Gundy argues, because the attorney g eneral is essentially writing the law he is charged with enforcing.

The government maintains that SORNA is constitutional because it gives the attorney general only limited authority and sufficient guidance on how to exercise it. Under longstanding precedent, Congress may give agencies broad authority to make rules so long as it provides an “intelligible principle” to guide them. The government frames SORNA as merely a routine example of Congress giving an agency rulemaking power. It argues that, although the law is not explicit, SORNA as a whole provides an implicit guiding principle. Specifically, it argues that Congress intended for the attorney general to apply the law to as many pre-act offenders as was practically feasible.

The court’s resolution of this case could impact much more than SORNA. If the court sides with the government, the decision would more or less preserve things as they are. If, however, the court strikes down SORNA on nondelegation grounds, the decision could threaten administrative agencies charged with regulating wide sectors of the economy, such as the Environmental Protection Agency (EPA), U.S. Food and Drug Administration (FDA) and Consumer Financial Protection Bureau (CFPB). These agencies derive their authority from broad Congressional delegations similar to SORNA’s, and a ruling that SORNA’s delegation is unconstitutional could jeopardize the rest of the administrative state.

Even before the oral argument, at least some justices already expressed support for Gundy’s argument. Both Justice Ruth Bader Ginsburg, in a 2012 case addressing a different aspect of SORNA, and Justice Neil Gorsuch, while he served on the U.S. Court of Appeals for the Tenth Circuit, have previously expressed doubts that SORNA’s delegation of the retroactivity question was constitutional. Gorsuch’s position was particularly strong, writing in a case involving SORNA that “if the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.”

At oral argument, other justices seemed to express skepticism that SORNA is meaningfully different from permissible delegations to other agencies. For example, Justice Stephen Breyer noted that there are many cases where Congress’ only guidance to agencies is to make rules “in the public interest,” and challenged Gundy to clarify why those statutes did not also violate the nondelegation doctrine. Moreover, Chief Justice John Roberts asked how the law was different from a hypothetical law in which Congress required pre-act offenders to register but gave the attorney general broad authority to make exceptions.

Gorsuch reaffirmed his prior position, expressing concern that the broad delegation to the attorney general set this case apart from other cases. He described the attorney general as a “chief prosecutor” with a “conflict of interest” and “a blank check to … determine who he’s going to prosecute.” The government pushed back, emphasizing that it was Congress that had criminalized the failure to register, whereas the attorney general only made civil regulations for who is obligated to comply.

Gundy raises the strong possibility that the Supreme Court will reinvigorate the nondelegation doctrine—a legal theory that it has been treated more like a museum exhibit than a living legal doctrine in the past 80 years. The court has overturned only two laws as unconstitutional delegations, both in 1935. Since then, it has upheld broad delegations to agencies that form the backbone of the modern regulatory state. If the court revived the doctrine here, it would likely invite a flood of challenges to environmental and consumer protection regulations that could have far-reaching consequences beyond this lone criminal statute.

Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Andrew D. Linz also practices in the firm’s commercial litigation group. He clerked for Judge John R. Padova on the U.S. District Court for the Eastern District of Pennsylvania, received his J.D., summa cum laude, from the University of Pennsylvania Law School, and his A.B., cum laude, from Princeton University.