Reynolds v. United States

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

REYNOLDS v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 10–6549. Argued October 3, 2011—Decided January 23, 2012

The federal Sex Offender Registration and Notification Act (Act) re-

quires convicted sex offenders to provide state governments with, and

to update, information, e.g., names and current addresses, for state

and federal sex offender registries. It is a crime if a person who is

“required to register under [the Act]” and who “travels in interstate

. . . commerce” knowingly “fails to register or update a registration.”

18 U. S. C. §2250(a). The Act defines “sex offender” to include offend-

ers who were convicted before the Act’s effective date, 42 U. S. C.

§16911(1), and says that “the Attorney General shall have the au-

thority to specify the applicability of the [registration] requirements”

to pre-Act offenders, §16913(d). The Act, which seeks to make more

uniform and effective a patchwork of pre-Act federal and 50 state reg-

istration systems, became law in July 2006. In February 2007, the

Attorney General promulgated an Interim Rule specifying that the

Act applies to all pre-Act offenders. He has since promulgated fur-

ther rules, regulations, and specifications.

Petitioner Reynolds, a pre-Act offender, registered in Missouri in

2005 but moved to Pennsylvania in September 2007 without updat-

ing the Missouri registration or registering in Pennsylvania. He was

indicted for failing to meet the Act’s registration requirements be-

tween September 16 and October 16, 2007. He moved to dismiss the

indictment on the ground that the Act was not applicable to pre-Act

offenders during that time, arguing that the Attorney General’s Feb-

ruary 2007 Interim Rule was invalid because it violated the Constitu-

tion’s “nondelegation” doctrine and the Administrative Procedure

Act’s notice and comment requirements. The District Court rejected

on the merits of Reynolds’ legal attack on the Interim Rule, but the

Third Circuit rejected his argument without reaching the merits,

2 REYNOLDS v. UNITED STATES

Syllabus

concluding that the Act’s registration requirements applied to pre-Act

offenders even in the absence of a rule by the Attorney General.

Thus, it found, the Interim Rule’s validity made no legal difference in

the outcome.

Held: The Act does not require pre-Act offenders to register before the

Attorney General validly specifies that the Act’s registration provi-

sions apply to them. Pp. 6–13.

(a) This conclusion is supported by a natural reading of the Act’s

text, which consists of four statements. Statement One says that “[a]

sex offender shall register, and keep the registration current.”

Statement Two says that, generally, the offender must initially regis-

ter before completing his “sentence of imprisonment.” Statement

Three says that the sex offender must update a registration within

three business days of any change of “name, residence, employment,

or student status.” Statement Four says that “[t]he Attorney General

shall have the authority to specify the applicability of the require-

ments . . . to sex offenders convicted before the enactment of” the Act.

§16913. Read naturally, the Fourth Statement modifies the First. It

deals specifically with a subset (pre-Act offenders) of the First State-

ment’s broad general class (all sex offenders) and thus should control

the Act’s application to that subset. See Gozlon-Peretz v. United

States, 498 U. S. 395, 407. Also, by giving the Attorney General au-

thority to specify the Act’s “applicability,” not its “nonapplicability,”

the Fourth Statement is more naturally read to confer authority to

apply the Act, not authority to make exceptions. This reading effi-

ciently resolves what may have been Congress’ concern about the

practical problems of applying the new registration requirements to a

large number of pre-Act offenders, which could have been expensive

and might not have proved feasible to do immediately. It might have

thought that such concerns warranted different treatment for differ-

ent categories of pre-Act offenders. And it could have concluded that

it was efficient and desirable to ask the Justice Department, charged

with responsibility for implementation, to examine pre-Act offender

problems and to apply the new requirements accordingly. This read-

ing also takes Congress to have filled potential lacunae (created by

related Act provisions) in a manner consistent with basic criminal

law principles. The Second Statement, e.g., requires a sex offender to

register before completing his prison term, but says nothing about

when a pre-Act offender who has left prison is to register. An Attor-

ney General ruling could diminish such uncertainties, helping to

eliminate the kind of vagueness and uncertainty that criminal law

must seek to avoid. Pp. 6–9.

(b) The Government’s three principal contrary arguments—that

the Court’s reading conflicts with the Act’s purpose of establishing a

Cite as: 565 U. S. ____ (2012) 3

Syllabus

national registration system that includes pre-Act offenders; that the

Court’s reading could lead to an absurdly long implementation delay;

and that the Act should be read to apply the requirements immedi-

ately and on their own to all pre-Act offenders to avoid the possibility

that the Attorney General, who has, but is not required to use, “the

authority to specify” requirements, might take no action—are unper-

suasive. Some lower courts have read the Attorney General’s author-

ity to apply only to pre-Act sex offenders who are unable to comply

with the statute’s “initial registration” requirements, but that is not

what the Act says. Pp. 9–13.

(c) Because the Act’s registration requirements do not apply to pre-

Act offenders until the Attorney General so specifies, the question

whether the Attorney General’s Interim Rule is a valid specification

matters in this case. P. 13.

380 Fed. Appx. 125, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ.,

joined. SCALIA, J., filed a dissenting opinion, in which GINSBURG, J.,

joined.

Cite as: 565 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–6549

_________________

BILLY JOE REYNOLDS, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[January 23, 2012]

JUSTICE BREYER delivered the opinion of the Court.

The federal Sex Offender Registration and Notification

Act (Act), 120 Stat. 590, 42 U. S. C. §16901 et seq. (2006

ed. and Supp. III), requires those convicted of certain sex

crimes to provide state governments with (and to update)

information, such as names and current addresses, for

inclusion on state and federal sex offender registries.

§§16912(a), 16913–16914, 16919(a) (2006 ed.). The Act

makes it a crime for a person who is “required to regis-

ter” under the Act and who “travels in interstate or foreign

commerce” knowingly to “fai[l] to register or update a reg-

istration . . . .” 18 U. S. C. §2250(a). The question be-

fore us concerns the date on which this federal registra-

tion requirement took effect with respect to sex offenders

convicted before the Act became law.

The Act defines the term “sex offender” as including

these pre-Act offenders. 42 U. S. C. §16911(1); see Carr v.

United States, 560 U. S. ___, ___ (2010) (slip op., at 7). It

says that “[a] sex offender shall register.” §16913(a). And

it further says that “[t]he Attorney General shall have the

authority to specify the applicability of the [registration]

2 REYNOLDS v. UNITED STATES

Opinion of the Court

requirements . . . to sex offenders convicted before the

enactment of this chapter . . . .” §16913(d) (emphasis

added). In our view, these provisions, read together, mean

that the Act’s registration requirements do not apply to

pre-Act offenders until the Attorney General specifies that

they do apply. We reverse a Court of Appeals determina-

tion that, in effect, holds the contrary.

I

A

The new federal Act reflects Congress’ awareness that

pre-Act registration law consisted of a patchwork of fed-

eral and 50 individual state registration systems. See

73 Fed. Reg. 38045 (2008). The Act seeks to make those

systems more uniform and effective. It does so by repeal-

ing several earlier federal laws that also (but less effec-

tively) sought uniformity; by setting forth comprehensive

registration-system standards; by making federal funding

contingent on States’ bringing their systems into compli-

ance with those standards; by requiring both state and

federal sex offenders to register with relevant jurisdictions

(and to keep registration information current); and by

creating federal criminal sanctions applicable to those who

violate the Act’s registration requirements. 18 U. S. C.

§2250(a) (criminal provision); 42 U. S. C. §§16911(10),

16913–16916 (2006 ed. and Supp. III) (registration re-

quirements); §16925 (federal funding); §129, 120 Stat. 600

(repeal of earlier laws).

The Act’s criminal penalty applies to “[w]ho[m]ever . . .

is required to register under [the Act].” 18 U. S. C.

§2250(a). It says that such a person (a federal sex offender

or a nonfederal sex offender who travels in interstate

commerce) must not knowingly fail “to register or update

a registration as required by [the Act].” Ibid. (emphasis

added); see Appendix, infra, at 14.

The relevant registration requirements are set forth in

Cite as: 565 U. S. ____ (2012) 3

Opinion of the Court

an Act provision that states:

“Registry requirements for sex offenders

“(a) In general

“A sex offender [defined to include any offender who

was convicted of a sex offense] shall register, and keep

the registration current, in each jurisdiction where the

offender resides, where the offender is an employee,

and where the offender is a student. . . .

“(b) Initial registration

“The sex offender shall initially register [either] be-

fore completing a sentence of imprisonment with

respect to the offense giving rise to the registration re-

quirement; or [for those not sentenced to prison] not

later than 3 business days after being sentenced . . . .

“(c) Keeping the registration current

“A sex offender shall [update his registration with-

in] 3 business days after each change of name, resi-

dence, employment, or student status [by] appear[ing]

in person in at least 1 jurisdiction involved . . . and in-

form[ing] that jurisdiction of all [relevant] changes . . . .

“(d) Initial registration of sex offenders unable

to comply with subsection (b)

“The Attorney General shall have the authority to

specify the applicability of the [registration] require-

ments . . . to sex offenders convicted before the en-

actment of this chapter or its implementation in a

particular jurisdiction, and to prescribe rules for the

registration of any such sex offenders and for other

categories of sex offenders who are unable to comply

with subsection (b).” 42 U. S. C. §16913 (emphasis

added).

4 REYNOLDS v. UNITED STATES

Opinion of the Court

The new Act became law on July 27, 2006.

On February 28, 2007, the Attorney General promulgat-

ed an Interim Rule specifying that “[t]he requirements of

[the Act] apply to all sex offenders, including sex offenders

convicted of the offense for which registration is required

prior to the enactment of that Act.” 72 Fed. Reg. 8897

(codified at 28 CFR §72.3). Subsequently, the Attorney

General promulgated further rules, regulations, and speci-

fications. See 73 Fed. Reg. 38030 (2008); 75 Fed. Reg.

81849 (2010); 76 Fed. Reg. 1630 (2011). The present case

focuses upon the applicability of the Act’s registration

requirements to pre-Act offenders during the period be-

tween (1) July 27, 2006 (when the Act took effect) and

(2) the moment when the Attorney General promulgated

a valid rule specifying the registration requirements’ ap-

plicability, namely, February 28, 2007 (or a later date if

the February 28 specification was invalid).

B

Billy Joe Reynolds, the petitioner, is a pre-Act offender.

He was convicted of a Missouri sex offense in October

2001; he served four years in prison; he was released in

July 2005; he then registered as a Missouri sex offender;

but he moved to Pennsylvania in September 2007 without

updating his Missouri registration information (as Mis-

souri law required) and without registering in Pennsylva-

nia. A federal grand jury indicted him, charging him with,

between September 16 and October 16, 2007, having

“knowingly failed to register and update a registration as

required by [the Act].” App. 13; see 18 U. S. C. §2250(a).

In the Government’s view, Reynolds’ failure to update his

address information when he moved to Pennsylvania

violated the requirement that a “sex offender” update

registration information within “3 business days after

each change of . . . residence.” 42 U. S. C. §16913(c).

Reynolds moved to dismiss the indictment on the

Cite as: 565 U. S. ____ (2012) 5

Opinion of the Court

ground that in September and October 2007 the Act’s reg-

istration requirements had not yet become applicable to

pre-Act offenders. He conceded that the Act had become

law earlier (namely, in July 2006), and he conceded that

the Attorney General had already (in February 2007)

promulgated an Interim Rule specifying that the Act’s

registration requirements were applicable to pre-Act

offenders. But he claimed that the Interim Rule was

invalid because it violated both the Constitution’s “nondel-

egation” doctrine and the Administrative Procedure Act’s

(APA) requirement for “good cause” to promulgate a rule

without “notice and comment” (as the Attorney General

had done). See A. L. A. Schechter Poultry Corp. v. United

States, 295 U. S. 495, 529 (1935) (nondelegation doctrine);

5 U. S. C. §§553(b)(3)(B), (d)(3) (APA). Because the Inter-

im Rule is invalid, he added, the law must treat him like a

pre-Act offender who traveled interstate and violated the

Act’s registration requirements before the Attorney Gen-

eral specified their applicability.

The District Court rejected on the merits Reynolds’ legal

attack on the Interim Rule. But the Court of Appeals

rejected Reynolds’ argument without reaching those mer-

its. 380 Fed. Appx. 125 (2010). That court thought that

the Act’s registration requirements apply to pre-Act of-

fenders such as Reynolds (who was subject to a pre-

existing state-law registration requirement) from the date

of the new law’s enactment—even in the absence of any

rule or regulation by the Attorney General specifying that

the new registration requirements apply. That being so,

the validity of the Interim Rule could make no legal dif-

ference, for the Act required Reynolds to follow the

new federal registration requirements regardless of any

rulemaking.

The Courts of Appeals have reached different conclu-

sions about whether the Act’s registration requirements

apply to pre-Act offenders prior to the time that the Attor-

6 REYNOLDS v. UNITED STATES

Opinion of the Court

ney General specifies their applicability, i.e., from July

2006 until at least February 2007. Six Circuits have held

that the Act’s registration requirements do not apply to

pre-Act offenders unless and until the Attorney General so

specifies. United States v. Johnson, 632 F. 3d 912, 922–

927 (CA5 2011); United States v. Valverde, 628 F. 3d 1159,

1162–1164 (CA9 2010); United States v. Cain, 583 F. 3d

408, 414–419 (CA6 2009); United States v. Hatcher, 560 F.

3d 222, 226–229 (CA4 2009); United States v. Dixon, 551

F. 3d 578, 585 (CA7 2008); United States v. Madera, 528 F.

3d 852, 856–859 (CA11 2008) (per curiam). Five Circuits

have held that they apply from the date of the Act’s en-

actment, and prior to any such specification, at least with

respect to pre-Act offenders who had already registered

under state law. United States v. Fuller, 627 F. 3d 499,

506 (CA2 2010); United States v. DiTomasso, 621 F. 3d 17,

24 (CA1 2010); United States v. Shenandoah, 595 F. 3d

151, 163 (CA3 2010); United States v. Hinckley, 550 F. 3d

926, 932 (CA10 2008); United States v. May, 535 F. 3d 912,

918–919 (CA8 2008). In light of this split, we agreed to

consider the question.

II

A

The question before us is whether the Act requires

pre-Act offenders to register before the Attorney General

validly specifies that the Act’s registration provisions ap-

ply to them. We believe that it does not. For one thing,

a natural reading of the textual language supports our

conclusion. The text consists of four statements. See

supra, at 3. Statement One says that “[a] sex offender

shall register, and keep the registration current.” State-

ment Two says that a sex offender must initially register

before completing his “sentence of imprisonment” (or, if

the sentence does not involve imprisonment, within three

days of conviction). Statement Three says that the sex

Cite as: 565 U. S. ____ (2012) 7

Opinion of the Court

offender must update a registration within three business

days of any change of “name, residence, employment, or

student status.” Statement Four says that “[t]he Attorney

General shall have the authority to specify the applicabil-

ity of the requirements of this subchapter to sex offenders

convicted before the enactment of this chapter.”

Read naturally, the Fourth Statement modifies the First.

It specifically deals with a subset (pre-Act offenders) of

a broad general class (all sex offenders) to which the First

Statement applies. And it therefore should control the

Act’s application to that subset. See Gozlon-Peretz v.

United States, 498 U. S. 395, 407 (1991) (specific statutory

provision normally controls over one of more general

application); see also Bloate v. United States, 559 U. S.

___, ___ (2010) (slip op., at 10) (same).

At the same time, the Fourth Statement says that the

Attorney General has authority to specify the Act’s “ap-

plicability,” not its “nonapplicability.” And it consequently

is more naturally read as conferring the authority to apply

the Act, not the authority to make exceptions. That is

how we normally understand a term such as “authority to

specify” in the context of applying new rules to persons

already governed by pre-existing rules. If, for example,

the Major League Baseball Players Association and the

team owners agreed that the Commissioner of Baseball

“shall have the authority to specify the applicability” to

the major leagues of the more stringent minor league drug

testing policy, we should think that the minor league

policy would not apply unless and until the Commissioner

so specified.

For another thing, this reading of the Act efficiently

resolves what Congress may well have thought were prac-

tical problems arising when the Act sought to apply the

new registration requirements to pre-Act offenders. The

problems arise out of the fact that the Act seeks to make

more uniform a patchwork of pre-existing state systems.

8 REYNOLDS v. UNITED STATES

Opinion of the Court

Doing so could require newly registering or re-registering

“a large number” of pre-Act offenders. That effort could

prove expensive. And it might not prove feasible to do so

immediately. See 73 Fed. Reg. 38063 (recognizing these

problems). Congress’ concern about these problems is re-

flected in the Act’s providing the States with three years

to bring their systems into compliance with federal stand-

ards while permitting the Attorney General to extend that

3-year grace period to five years. 42 U. S. C. §16924.

These same considerations might have warranted dif-

ferent federal registration treatment of different catego-

ries of pre-Act offenders. Cf. 73 Fed. Reg. 38035–38036,

and 38046–38047 (final Department of Justice guidelines

allowing States to meet Act requirements without regis-

tering certain categories of pre-Act offenders); 76 Fed. Reg.

1635–1636 (supplemental guidelines allowing the same).

At least Congress might well have so thought. And conse-

quently, Congress might well have looked for a solution.

Asking the Department of Justice, charged with respon-

sibility for implementation, to examine these pre-Act

offender problems and to apply the new registration re-

quirements accordingly could have represented one effi-

cient and desirable solution (though we express no view

on Reynolds’ related constitutional claim). Cf. 42 U. S. C.

§§16912(b), 16914(a)(7), (b)(7), 16919, 16941, 16945

(granting the Attorney General authority to administer

various aspects of the Act). And that is just the solution

that the Act’s language says that Congress adopted.

Finally, our reading of the Act takes Congress to have

filled potential lacunae (created by related Act provisions)

in a manner consistent with basic background principles

of criminal law. The Second Statement, for example, says

that a sex offender must register before completing his

prison term, but the provision says nothing about when a

pre-Act offender who completed his prison term pre-Act

must register. Although a state pre-Act offender could not

Cite as: 565 U. S. ____ (2012) 9

Opinion of the Court

be prosecuted until he traveled interstate, there is no

interstate requirement for a federal pre-Act offender. And

to apply the Act to either of these pre-Act offenders from

the date of enactment would require reading into the

statute, silent on the point, some kind of unsaid equiva-

lent (e.g., registering or updating within a “reasonable

time” or “within three days of first post-Act travel in inter-

state commerce” or “as preexisting state law requires”).

Pre-Act offenders, aware of such complexities, lacunae,

and difficulties, might, on their own, reach different con-

clusions about whether, or how, the new registration

requirements applied to them. A ruling from the Attorney

General, however, could diminish or eliminate those un-

certainties, thereby helping to eliminate the very kind of

vagueness and uncertainty that criminal law must seek to

avoid. Cf., e.g., United States v. Lanier, 520 U. S. 259, 266

(1997) (noting that “the canon of strict construction of

criminal statutes, or rule of lenity, ensures fair warning by

so resolving ambiguity in a criminal statute as to apply it

only to conduct clearly covered”).

B

The Government makes three principal arguments to

the contrary. First, it says that our interpretation of the

Act conflicts with one basic statutory purpose, namely, the

“establish[ment of] a comprehensive national system for

the registration of [sex] offenders,” 42 U. S. C. §16901,

that includes offenders who committed their offenses

before the Act became law. The Act reflects that purpose

when it defines “sex offender” broadly to include any

“individual who was convicted of a sex offense.” §16911(1).

And we have recognized that purpose in stating that, in

general, the Act’s criminal provisions apply to any pre-Act

offender required to register under the Act who later

travels interstate and fails to register. See Carr, 560

U. S., at ___ (slip op., at 7).

10 REYNOLDS v. UNITED STATES

Opinion of the Court

The Act’s history also reveals that many of its support-

ers placed considerable importance upon the registration

of pre-Act offenders. See, e.g., H. R. Rep. No. 109–218, pt.

1, p. 24 (2005) (H. R. Rep.) (“[Twenty] percent of sexual

offenders are ‘lost,’ and there is a strong public interest

in finding them and having them register with current

information to mitigate the risks of additional crimes

against children”); 152 Cong. Rec. 15333 (2006) (statement

of Sen. Cantwell) (“Child sex offenders have exploited this

stunning lack of uniformity, and the consequences have

been tragic. Twenty percent of the Nation’s 560,000 sex

offenders are ‘lost’ because State offender registry pro-

grams are not coordinated well enough”); id., at 15338

(statement of Sen. Kyl) (“There currently are over 100,000

sex offenders in this country who are required to register

but are ‘off the system.’ They are not registered. The

penalties in this bill should be adequate to ensure that

these individuals register”); id., at 13050 (statement of

Sen. Frist) (“There are currently 550,000 registered sex

offenders in the U. S. and at least 100,000 of them are

missing from the system. Every day that we don’t have

this national sex offender registry, these missing sex

predators are out there somewhere”).

The difficulty with the Government’s argument, how-

ever, is that it overstates the need for instantaneous regis-

tration of pre-Act offenders. Our different reading, we

concede, involves implementation delay. But that delay

need not be long (the Attorney General issued his Interim

Rule 217 days after the effective date of the new law).

And that delay can be justified by the need to accommo-

date other Act-related interests. See supra, at 7–9.

Second, the Government suggests that our reading leads

to an absurd result. As it points out, the Fourth Statement

grants the Attorney General the “authority to specify”

the registration requirements’ applicability not only to

pre-Act offenders but also to those convicted prior to the

Cite as: 565 U. S. ____ (2012) 11

Opinion of the Court

“implementation” of the new Act “in a particular jurisdic-

tion.” Some jurisdictions might not implement the Act

for up to five years. See 42 U. S. C. §16924; see also Dept. of

Justice, Office of Justice Programs, Justice Department

Finds 24 Jurisdictions Have Substantially Implemented

SORNA Requirements (July 28, 2011) (stating that as

of July 28, 2011, 14 States had implemented the

Act’s requirements), http://www.ojp.usdoj.gov/newsroom/

pressreleases/2011/SMART_PR-072811.htm (all Internet

materials as visited Jan. 19, 2012, and available in Clerk

of Court’s case file). Yet, the Government concludes, it is

absurd to believe that Congress would have desired so

long a delay in the application of its new registration

requirements.

The problem with this argument, however, is that read-

ing the two categories similarly (a matter which we need

not decide) would not require a long delay in applying the

registration requirements to post-Act offenders who com-

mitted a crime in a jurisdiction that is slow to implement

the new requirements. At most, that reading would re-

quire the Attorney General to promulgate a rule applica-

ble to all preimplementation offenders. That rule could

specify that the Act’s preregistration provisions apply to

some or to all those offenders. And it could do so quickly,

well before a jurisdiction implements the Act’s require-

ments. Indeed, the Attorney General’s Interim Rule and

the Department of Justice’s final guidelines, both issued

before any jurisdiction implemented the Act’s require-

ments, state that the Act’s requirements apply to “all sex

offenders,” including all preimplementation offenders. See

72 Fed. Reg. 8897 (codified at 28 CFR §72.3); 73 Fed. Reg.

38036; cf. Dept. of Justice, Office of Justice Programs,

Justice Department Announces First Two Jurisdictions

to Implement Sex Offender Registration and Notifica-

tion Act (Sept. 23, 2009), http://www.ojp.usdoj.gov/newsroom/

pressreleases/2009/SMART09154.htm.

12 REYNOLDS v. UNITED STATES

Opinion of the Court

Third, the Government argues against our interpreta-

tion on the ground that the Act says only that the At-

torney General “shall have the authority to specify the

applicability” of the Act’s registration requirements to pre-

Act offenders; it does not say that he “shall specify” or

otherwise require him to do so. The Act’s language, the

Government continues, consequently gives the Attorney

General the power not to specify anything; that power is

inconsistent with Congress’ intent to ensure the speedy

registration of thousands of “lost” pre-Act offenders, supra,

at 10; and we can avoid this result only by reading the

Act’s registration requirements as applying immedi-

ately and on their own to all pre-Act offenders (though

the Attorney General would have the power to make

exceptions).

This argument bases too much upon too little. There is

no reason to believe that Congress feared that the Attor-

ney General would refuse to apply the new requirements

to pre-Act offenders. See, e.g., H. R. Rep., at 23–24; Pro-

tecting Our Nation’s Children from Sexual Predators and

Violent Criminals: What Needs To Be Done? Hearing

before the Subcommittee on Crime, Terrorism, and Home-

land Security of the House Committee on the Judiciary,

109th Cong., 1st Sess., 4–13 (2005); Office of the Press

Sec’y, The White House, President Signs H. R. 4472,

the Adam Walsh Child Protection and Safety Act of 2006

(July 27, 2006), http://georgewbush-whitehouse.archives.gov/

news/releases/2006/07/20060727-6.html. And there was no

need for a mandatory requirement to avoid that unrealistic

possibility. There is consequently no need to read the

language unnaturally as giving the Attorney General the

authority only to make exceptions from an implicit (un-

stated) rule that would otherwise apply the new registra-

tion requirements to all pre-Act offenders across the board

and immediately.

Finally, we note that some lower courts have read the

Cite as: 565 U. S. ____ (2012) 13

Opinion of the Court

Attorney General’s specification authority as applying

only to those pre-Act sex offenders unable to comply with

the statute’s “initial registration” requirements. See 42

U. S. C. §16913(b). That, however, is not what the statute

says. Rather, its Fourth Statement, §16913(d), says that

the Attorney General has the authority (1) to specify the

applicability of the registration requirements to pre-Act

(and preimplementation) offenders, “and ” (2) to prescribe

rules for their registration, “and ” (3) to prescribe registra-

tion rules for other categories of sex offenders who are

unable to comply with the initial registration require-

ments. See supra, at 3. The word “and” means that the

Attorney General’s authority extends beyond those pre-Act

“sex offenders who are unable to comply” with the initial

registration requirements.

III

For these reasons, we conclude that the Act’s registra-

tion requirements do not apply to pre-Act offenders until

the Attorney General so specifies. Whether the Attorney

General’s Interim Rule sets forth a valid specification

consequently matters in the case before us. And we re-

verse the Third Circuit’s judgment to the contrary. We

remand the case for further proceedings consistent with

this opinion.

So ordered.

14 REYNOLDS v. UNITED STATES

Opinion of the Court

Appendix to opinion of the Court

APPENDIX

18 U. S. C. §2250(a)

“IN GENERAL.—Whoever—

“(1) is required to register under the Sex Offender

Registration and Notification Act;

“(2)(A) is a sex offender as defined for the purposes

of the Sex Offender Registration and Notification Act

by reason of a conviction under Federal law (including

the Uniform Code of Military Justice), the law of the

District of Columbia, Indian tribal law, or the law of

any territory or possession of the United States; or

“(B) travels in interstate or foreign commerce, or

enters or leaves, or resides in, Indian country; and

“(3) knowingly fails to register or update a registra-

tion as required by the Sex Offender Registration and

Notification Act;

“shall be fined under this title or imprisoned not more

than 10 years, or both.”

42 U. S. C. §16913

“Registry requirements for sex offenders

“(a) In general

“A sex offender shall register, and keep the registra-

tion current, in each jurisdiction where the offender

resides, where the offender is an employee, and where

the offender is a student. For initial registration pur-

poses only, a sex offender shall also register in the

jurisdiction in which convicted if such jurisdiction is

different from the jurisdiction of residence.

“(b) Initial registration

“The sex offender shall initially register—(1) before

completing a sentence of imprisonment with respect to

Cite as: 565 U. S. ____ (2012) 15

Opinion of the Court

Appendix to opinion of the Court

the offense giving rise to the registration requirement;

or (2) not later than 3 business days after being sen-

tenced for that offense, if the sex offender is not sen-

tenced to a term of imprisonment.

“(c) Keeping the registration current

“A sex offender shall, not later than 3 business days

after each change of name, residence, employment, or

student status, appear in person in at least 1 jurisdic-

tion involved pursuant to subsection (a) and inform

that jurisdiction of all changes in the information re-

quired for that offender in the sex offender registry.

That jurisdiction shall immediately provide that in-

formation to all other jurisdictions in which the of-

fender is required to register.

“(d) Initial registration of sex offenders unable

to comply with subsection (b)

“The Attorney General shall have the authority to

specify the applicability of the requirements of this

subchapter to sex offenders convicted before the en-

actment of this chapter or its implementation in a

particular jurisdiction, and to prescribe rules for the

registration of any such sex offenders and for other

categories of sex offenders who are unable to comply

with subsection (b).

“(e) State penalty for failure to comply

“Each jurisdiction, other than a Federally recog-

nized Indian tribe, shall provide a criminal penalty

that includes a maximum term of imprisonment that

is greater than 1 year for the failure of a sex offender

to comply with the requirements of this subchapter.”

Cite as: 565 U. S. ____ (2012) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–6549

_________________

BILLY JOE REYNOLDS, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[January 23, 2012]

JUSTICE SCALIA, with whom JUSTICE GINSBURG joins,

dissenting.

In my view, the registration requirements of the Sex

Offender Registration and Notification Act (Act), 120 Stat.

590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III),

apply of their own force, without action by the Attorney

General. The Act’s statement that “[t]he Attorney General

shall have the authority to specify the applicability of

the [registration] requirements” to pre-Act sex offenders,

§16913(d), is best understood as conferring on the Attor-

ney General an authority to make exceptions to the oth-

erwise applicable registration requirements.

To begin with, I do not share the Court’s belief that

to “specify the applicability” more naturally means, in the

present context, to “make applicable” rather than to “make

inapplicable.” See ante, at 7. The example the Court

gives, the Commissioner of Baseball’s “ ‘authority to spec-

ify the applicability’ ” of more stringent minor-league drug

testing policies to the major leagues, ibid., is entirely

inapt, because it deals with a policy that on its face is

otherwise not applicable. Since the major leagues are not

covered by the policies, the Commissioner’s “ ‘authority to

specify [their] applicability’ ” can mean nothing else but the

authority to render them applicable. What we have here,

however, is a statute that states in unqualified terms that

2 REYNOLDS v. UNITED STATES

SCALIA, J., dissenting

“a sex offender shall register,” §16913(a)—and that the

Court rightly believes was meant to cover pre-Act offend-

ers.* The issue is whether “specify the applicability”

means that no pre-Act offenders need register unless the

Attorney General says so, or rather that the Attorney

General may excuse the unqualified requirement for pre-

Act offenders. In that context, it seems to me that the

latter meaning is more natural. One specifies the applica-

bility of an application that already exists by describing or

revising its contours.

I think it preferable to give “specify” this meaning not

only because here it is more natural, but also because

the alternative is to read the statute as leaving it up to the

Attorney General whether the registration requirement

would ever apply to pre-Act offenders, even though regis-

tration of pre-Act offenders was (as the Court acknowl-

edges) what the statute sought to achieve. For the statute

does not instruct the Attorney General to specify; it merely

gives him “authority” to do so. In this respect, the provi-

sion at issue here stands in marked contrast to other

provisions of the Act which clearly impose duties on the

Attorney General. See, e.g., §16912(b) (“The Attorney

General shall issue guidelines and regulations to interpret

and implement this subchapter”); §16917(b) (“The Attor-

ney General shall prescribe rules for the notification of

[certain] sex offenders”); §16919(a) (“The Attorney General

shall maintain a national database”); §16926(a) (“The

Attorney General shall establish and implement a Sex

Offender Management Assistance program”).

——————

* The Court reaches this conclusion based on an inquiry into legisla-

tive history. See ante, at 9–10. That inquiry is quite superf luous,

however since the text of the Act itself makes clear that Congress

sought to “establis[h] a comprehensive national system for the registra-

tion of [sex offenders],” 42 U. S. C. §16901, with “sex offender” defined

broadly to “mea[n] an individual who was convicted of a sex offense,”

§16911(1) (emphasis added).

Cite as: 565 U. S. ____ (2012) 3

SCALIA, J., dissenting

The Court’s response to this—that “there was no need

for a mandatory requirement to avoid [the] unrealistic

possibility” that the Attorney General would not specify,

ante, at 12—seems to me a fine answer to the question

“What mandatory requirements must a poorly drafted

statute contain in order to be workable?” It is an inade-

quate answer, however, to the question that is relevant

here: “Would Congress have written the provision this way

if it wanted pre-Act offenders covered and did not think

they were covered absent specification by the Attorney Gen-

eral?” Intelligently drafted statutes make mandatory

those executive acts essential to their functioning, whether

or not those acts would likely occur anyway. It would have

taken little effort (in fact, less effort) for Congress to write

“the Attorney General shall specify the applicability”

instead of “the Attorney General shall have authority to

specify the applicability.” The latter formulation confers

discretion, and it is simply implausible that the Attorney

General was given discretion to determine whether cover-

age of pre-Act offenders (one of the purposes of the Act)

should exist.

Indeed, it is not entirely clear to me that Congress

can constitutionally leave it to the Attorney General to

decide—with no statutory standard whatever governing his

discretion—whether a criminal statute will or will not

apply to certain individuals. That seems to me sailing

close to the wind with regard to the principle that legisla-

tive powers are nondelegable, see Whitman v. American

Trucking Assns., Inc., 531 U. S. 457, 472–476 (2001);

Loving v. United States, 517 U. S. 748, 776–777 (1996)

(SCALIA, J., concurring in part and concurring in judg-

ment), and “[i]t is our settled policy to avoid an interpreta-

tion of a federal statute that engenders constitutional

issues if a reasonable alternative interpretation poses

no constitutional question.” Gomez v. United States, 490

U. S. 858, 864 (1989). Construing the Act to give the

4 REYNOLDS v. UNITED STATES

SCALIA, J., dissenting

Attorney General the power to reduce congressionally

imposed requirements fits that bill, because such a power

is little more than a formalized version of the time-

honored practice of prosecutorial discretion.

The Court points out that there might have been need

for “different federal registration treatment of different

categories of pre-Act offenders,” ante, at 8, and that absent

a “ruling from the Attorney General” pre-Act offenders

would be uncertain “about whether, or how, the new regis-

tration requirements applied to them,” ante, at 9. But

attending to those details would certainly come within the

Attorney General’s authority to “specify” application of the

Act—and so would the temporary suspension of registra-

tion requirements pending the Attorney General’s reso-

lution of those details. And of course the uncertainty of

where to register could form the basis for the Attorney

General’s exercise of his discretion not to prosecute in

individual cases. Neither problem, it seems to me, justi-

fies the extraordinary interpretation that this Act does not

apply to pre-Act offenders unless and until the Attorney

General, in his discretion, says so.

For these reasons, I respectfully dissent.