Petitioners Brief — Herman Avery Gundy, Petitioner v. United States

Supreme Court briefMay 25, 2018

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No. 17-6086

IN THE

HERMAN AVERY GUNDY,

Petitioner,

UNITED STATES,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR PETITIONER

Jeffrey L. Fisher

David T. Goldberg

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Sarah Baumgartel

Counsel of Record

FEDERAL DEFENDERS OF

NEW YORK, INC.

Yuanchung Lee

Barry D. Leiwant

Edward S. Zas

52 Duane Street, 10th Fl.

New York, NY 10007

(212) 417-8772

sarah_baumgartel@fd.org

QUESTION PRESENTED

Whether the Sex Offender Registration and

Notification Act’s delegation to the Attorney General

in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d))

violates the constitutional nondelegation doctrine.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

BRIEF FOR PETITIONER ......................................... 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS................................... 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE..................................... 3

A. Legal background............................................ 3

B. Factual and procedural background ............ 13

SUMMARY OF ARGUMENT ................................... 15

ARGUMENT .............................................................. 17

I. The Constitution prohibits Congress from

delegating its legislative powers, particularly

in the criminal context ........................................ 17

II. Section 20913(d) of SORNA violates the

nondelegation doctrine ........................................ 23

A. Section 20913(d) impermissibly delegates

quintessentially “legislative” powers ........... 23

B. SORNA’s delegation to the Attorney

General fails the intelligible principle test .. 25

iii

1. To state an intelligible principle, a

statute must provide sufficiently clear

guidance on fundamental policy

questions ................................................ 26

2. Given the character and significance

of the power conferred by Section

20913(d), and the absence of

guidance, this delegation is

unconstitutional ..................................... 30

3. Section 20913(d) is unconstitutional

under any formulation of the

intelligible principle test ........................ 41

4. The courts of appeals have not

persuasively identified an intelligible

principle in Section 20913(d) ................. 43

CONCLUSION .......................................................... 51

APPENDIX (Relevant statutory provisions) ............ 1a

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v.

United States,

295 U.S. 495 (1935) ........................... 16, 34, 35, 44

Abramski v. United States,

134 S. Ct. 2259 (2014) ......................................... 21

Bank Markazi v. Peterson,

136 S. Ct. 1310 (2016) ......................................... 19

Barenblatt v. United States,

360 U.S. 109 (1959) ............................................. 29

Bilski v. Kappos,

561 U.S. 593 (2010) ............................................. 29

Bond v. United States,

134 S. Ct. 2077 (2014) ......................................... 40

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ....................................... 29, 38

Bowsher v. Synar,

478 U.S. 714 (1986) ....................................... 18, 40

California v. ARC Am. Corp.,

490 U.S. 93 (1989) ............................................... 30

Carr v. United States,

560 U.S. 438 (2010) ......................................passim

Chevron U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

467 U.S. 837 (1984) ............................................. 21

Clinton v. City of New York,

524 U.S. 417 (1998) ............................................. 17

Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017) ................................... 38

Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S. Ct. 1225 (2015) ................................... 19, 25

Doe v. Dep’t of Pub. Safety & Corr. Servs.,

62 A.3d 123 (Md. 2013) ....................................... 38

Doe v. State,

111 A.3d 1077 (N.H. 2015) .................................. 38

Doe v. State,

189 P.3d 999 (Ala. 2008) ..................................... 38

Does v. Snyder,

834 F.3d 696 (6th Cir. 2016) ............................... 38

Fahey v. Mallonee,

332 U.S. 245 (1947) ............................................ 34

Field v. Clark,

143 U.S. 649 (1892) ....................................... 25, 36

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ............................................. 19

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000) ............................................. 19

Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................................. 20

Greene v. McElroy,

360 U.S. 474 (1959) ....................................... 28, 38

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................. 30

Indus. Union Dep’t AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607 (1980) ............................................. 27

INS v. Chadha,

462 U.S. 919 (1983) ............................................. 17

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ......................................passim

Kent v. Dulles,

357 U.S. 116 (1958) ............................................. 28

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) ....................................... 20, 29

Loving v. United States,

517 U.S. 748 (1996) ....................................... 18, 22

Millard v. Rankin,

265 F. Supp. 3d 1211 (D. Colo. 2017) ................. 38

Mistretta v. United States,

488 U.S. 361 (1989) ................................. 18, 22, 26

Nichols v. United States,

136 S. Ct. 1113 (2016) ................................... 45, 48

Oil States Energy Servs., L.L.C. v. Greene’s

Energy Grp., L.L.C.,

138 S. Ct. 1365 (2018) ......................................... 22

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ......................................passim

Reynolds v. United States,

565 U.S. 432 (2012) ......................................passim

Rodriguez v. United States,

480 U.S. 522 (1987) ............................................. 49

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ................................... 21, 22

Smith v. Doe,

538 U.S. 84 (2003) ..................................... 4, 37, 38

Smith v. Goguen,

415 U.S. 566 (1974) ............................................. 20

Starkey v. Okla. Dep’t of Corr.,

305 P.3d 1004 (Okla. 2013) ................................. 38

State v. Letalien,

985 A.2d 4 (Me. 2009).......................................... 38

vii

Touby v. United States,

500 U.S. 160 (1991) ....................................... 35, 36

United States v. Ambert,

561 F.3d 1202 (11th Cir. 2009) ..................... 44, 45

United States v. Apel,

134 S. Ct. 1144 (2014) ......................................... 21

United States v. Brewer,

766 F.3d 884 (8th Cir. 2014) ................................. 8

United States v. Brown,

381 U.S. 437 (1965) ............................................. 20

United States v. Cooper,

750 F.3d 263 (3d Cir. 2014) ........................... 44, 45

United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304 (1936) ............................................. 22

United States v. Evans,

333 U.S. 483 (1948) ............................................. 20

United States v. Fuller,

627 F.3d 499 (2d Cir. 2010) ........................... 12, 43

United States v. Goodwin,

717 F.3d 511 (7th Cir. 2013) ............................... 45

United States v. Grimaud,

220 U.S. 506 (1911) ....................................... 22, 23

United States v. Guzman,

591 F.3d 83 (2d Cir. 2010)............................. 14, 15

United States v. Kebodeaux,

570 U.S. 387 (2013) ............................................ 40

United States v. Kozminski,

487 U.S. 931 (1988) ............................................. 20

United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921) ............................................... 21

viii

United States v. Lopez,

514 U.S. 549 (1995) ............................................... 3

United States v. Nichols,

775 F.3d 1225 (10th Cir. 2014) ........................... 45

United States v. Nichols,

784 F.3d 666 (10th Cir. 2014) ....................... 45, 50

United States v. Paul,

718 Fed. Appx. 360 (6th Cir. 2017) ..................... 39

United States v. Pendleton,

636 F.3d 78 (3d Cir. 2011)................................... 40

United States v. Robel,

389 U.S. 258 (1967) ............................................. 29

United States v. Shreveport Grain & Elevator Co.,

287 U.S. 77 (1932) ............................................... 27

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ............................... 20

Wallace v. State,

905 N.E.2d 371 (Ind. 2009) ................................. 38

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ............. 21, 22, 25, 28

Weaver v. Graham,

450 U.S. 24 (1981) ............................................... 20

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ......................................passim

Yakus v. United States,

321 U.S. 414 (1944) ........................... 22, 27, 41, 42

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................. 18

Constitutional Provisions

U.S. Const. art. I, § 1 ......................................... 1, 2, 17

U.S. Const. art. I, § 7 ................................................. 17

U.S. Const. art. I, § 8, cl. 3, Commerce Clause ........... 3

U.S. Const. art. I, § 9, cl. 3, Bill of Attainder

Clause ............................................................ 19, 20

U.S. Const. art. I, § 9, cl. 3, Ex Post Facto

Clause ...................................................... 20, 37, 38

U.S. Const. amend. VIII ............................................ 38

U.S. Const. amend. XIV............................................. 38

Statutes

Clean Air Act, 42 U.S.C. § 7401 et seq. ..................... 41

Comprehensive Criminal Control Act of 1984,

Pub. L. No. 98–473, S. 1762, 98 Stat. 1976 ........ 49

Controlled Substances Act, Pub. L. No. 91–513,

84 Stat. 1236 (1971) ............................................ 36

21 U.S.C. § 811(c)(4)-(6) ...................................... 36

21 U.S.C. § 811(h)................................................ 36

21 U.S.C. § 812(b) ................................................ 36

Department of Justice Appropriations Act of

1998, Pub. L. No. 105–119, Title I, § 115(c)(1),

111 Stat. 2440, 2467 .............................................. 4

Jacob Wetterling Crimes Against Children and

Sexually Violent Offender Registration Act,

Pub. L. No. 103–322, § 170101, 108 Stat.

2038 (1994) .................................................... 3, 4, 6

42 U.S.C. § 14071 .................................................. 3

Line Item Veto Act of 1996, Pub. L. No. 104–130,

§ 2, 110 Stat. 1200 ............................................... 17

Md. Crim. Law § 3-306 .............................................. 13

Megan’s Law, Pub. L. No. 104–145, 110 Stat.

1345 (1996) ............................................................ 4

Pam Lychner Sexual Offender Tracking and

Identification Act of 1996, Pub. L. No.

104–236, § 10(a), 110 Stat. 3093, 3098 ................. 4

Sex Offender Registration and Notification Act,

Pub. L. No. 109-248, 120 Stat. 590 (2006) ..passim

18 U.S.C. § 2250 ...........................................passim

34 U.S.C. § 20901 .........................................passim

34 U.S.C. § 20911 .............................................. 2, 5

34 U.S.C. § 20913 .........................................passim

34 U.S.C. § 20914 .................................................. 5

34 U.S.C. § 20915 ...................................... 5, 33, 49

34 U.S.C. § 20916 ............................................ 5, 46

34 U.S.C. § 20918 .................................................. 5

34 U.S.C. § 20921 ............................................ 5, 47

34 U.S.C. § 20925 ............................................ 5, 47

34 U.S.C. § 20926 .................................................. 6

34 U.S.C. § 20941 ............................................ 5, 47

28 U.S.C. § 1254(1) ...................................................... 1

Regulations

28 C.F.R. § 72.3 ..................................................... 8, 39

61 Fed. Reg. 15110 (Apr. 4, 1996) ............................... 4

62 Fed. Reg. 39009 (July 21, 1997) ............................. 4

72 Fed. Reg. 8894 (Feb. 28, 2007) ......................... 8, 39

73 Fed. Reg. 38030 (July 2, 2008) ......................passim

75 Fed. Reg. 81849 (Dec. 29, 2010) ............... 10, 33, 39

76 Fed. Reg. 1630 (Jan. 11, 2011) ......................... 9. 32

Legislative Materials

151 Cong. Rec. H20,175 (daily ed. Sept. 14, 2005)

(statement of Rep. Harris) .................................... 7

151 Cong. Rec. H20,193 (daily ed. Sept. 14, 2005)

(statement of Rep. Emanuel) ................................ 7

H.R. 4472, 109th Cong. § 111(3) (Mar. 8, 2006) ......... 7

S. 1086, 109th Cong. § 104(a)(8) (May 4, 2006) .......... 7

Other Authorities

The Federalist No. 47 (James Madison)

(Clinton Rossiter ed., 1961) ................................ 18

The Federalist No. 75 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ................................ 22

Logan, Wayne A., The Adam Walsh Act and

the Failed Promise of Administrative

Federalism, 78 Geo. Wash. L. Rev. 993

(2010) ............................................................... 6, 11

Madison, James, Madison’s Report on the

Virginia Resolutions (1800), in 4 The

Debates in the Several State Conventions

on the Adoption of the Federal Constitution

560 (J. Elliot ed., 1836) ....................................... 48

Madison, James, The Report of 1800, in 14 The

Papers of James Madison (Robert A.

Rutland et al. eds., 1983) .................................... 20

McPherson, Lori, The Sex Offender Registration

and Notification Act (SORNA) at 10 Years:

History, Implementation, and the Future,

64 Drake L. Rev. 741 (2016) ................................. 3

Sunstein, Cass R., Nondelegation Canons,

67 U. Chi. L. Rev. 315 (2000) .............................. 28

xii

Tribe, Laurence H., American Constitutional

Law (3d ed. 2000) .................................... 27, 28, 40

U.S. Department of Justice, Office of Sex

Offender Sentencing, Monitoring,

Apprehending, Registering, and Tracking,

SORNA Implementation Status,

www.smart.gov/sorna-map.htm.......................... 12

Wechsler, Herbert, The Political Safeguards of

Federalism, 54 Colum. L. Rev. 543 (1954) ......... 19

Yung, Corey R., One of These Laws Is Not Like

the Others: Why the Federal Sex Offender

Registration and Notification Act Raises

New Constitutional Questions, 46 Harv. J.

Legis. 369 (2009) ........................................... 37, 38

BRIEF FOR PETITIONER

Petitioner Herman Avery Gundy respectfully

requests that this Court reverse the judgment of the

United States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The summary order of the United States Court of

Appeals for the Second Circuit, J.A. 13, affirming

petitioner’s conviction, is reported at 695 Fed. Appx.

639. The district court’s decision rejecting petitioner’s

nondelegation claim, J.A. 89-90, is unreported. A prior

decision by the Second Circuit, J.A. 19, reversing the

pretrial dismissal of the indictment on grounds not at

issue here, is reported at 804 F.3d 140. The district

court’s decision to dismiss the indictment, J.A. 60, is

unreported but can be found at 2013 WL 2247147.

JURISDICTION

The Second Circuit entered its judgment affirming

petitioner’s conviction on June 22, 2017. Petitioner

filed a timely petition for a writ of certiorari on

September 20, 2017, which this Court granted, limited

to Question 4, on March 5, 2018. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article I, § 1, of the Constitution of the United

States provides: “All legislative Powers herein granted

shall be vested in a Congress of the United States,

which shall consist of a Senate and House of

Representatives.”

Relevant portions of the Sex Offender Registration

and Notification Act are reproduced in the Appendix

to this brief.

INTRODUCTION

The nondelegation doctrine, rooted in Article I, § 1,

of the Constitution, prohibits Congress from

transferring its legislative powers to another branch

of government. This case concerns whether Congress

violated that doctrine by giving the Attorney General

unguided discretion to criminalize the conduct of

hundreds of thousands of individuals.

The Sex Offender Registration and Notification

Act (“SORNA” or “the Act”) requires that any person

convicted of a “sex offense”—including a local crime—

or is a student. 34 U.S.C. §§ 20911(5), 20913(a). 1

SORNA also makes it a federal felony, punishable by

up to ten years in prison, for someone who “is required

to register under [SORNA],” to “travel[] in interstate

or foreign commerce,” and thereafter “knowingly fail[]

to register or update a registration as required” by

SORNA. 18 U.S.C. § 2250(a).

Congress did not decide whether, when, or how

SORNA’s registration requirements, and its related

criminal penalties, apply to the more than 500,000

people convicted of a sex offense before the law’s July

27, 2006 enactment. Instead, Congress delegated to

the Attorney General the power to decide all issues

concerning SORNA’s retrospective application to these

so-called pre-Act offenders. As a result, “the Act’s

registration requirements [did] not apply to pre-Act

offenders until the Attorney General so specifie[d].”

Reynolds v. United States, 565 U.S. 432, 445 (2012).

The Act was originally codified at 42 U.S.C. § 16901 et seq.

and is now codified at 34 U.S.C. § 20901 et seq. This brief cites to

the Act as currently codified.

The question in this case, expressly reserved in

Reynolds, 565 U.S. at 441, is whether this delegation

violates the constitutional separation of powers, as

embodied in the nondelegation doctrine. It does. The

delegation here is far more expansive and

unconstrained than any the Court has upheld.

In United States v. Lopez, 514 U.S. 549 (1995), the

Court recognized a limit on Congress’s power under

the Commerce Clause because of a realization that the

Government’s theory knew no bounds. Id. at 566-67.

The same is true here. If the nondelegation doctrine

means anything, it must mean that Congress cannot

grant the Attorney General—the nation’s top

prosecutor—unguided discretion to compel the

registration of individuals and to determine the reach

of related criminal laws.

STATEMENT OF THE CASE

A. Legal background

1. Pre-SORNA

background.

Sex

offender

registration schemes originated with, and continue to

be operated principally by, state governments acting

pursuant to their police powers. Until the 1990s, sex

offender registration systems were exclusively the

product of state initiatives. See, e.g., Lori McPherson,

The Sex Offender Registration and Notification Act

(SORNA) at 10 Years: History, Implementation, and

the Future, 64 Drake L. Rev. 741, 746-49 (2016).

Congress entered the registration picture in 1994,

when it enacted the Jacob Wetterling Crimes Against

Children and Sexually Violent Offender Registration

Act (“Wetterling Act”), Pub. L. No. 103–322, § 170101,

108 Stat. 2038 (1994) (codified as amended at 42

U.S.C. § 14071). The statute threatened to withhold

federal funds from states if they failed to adopt certain

congressionally prescribed registration requirements

within three years. Id. § 170101(f).

The Wetterling Act applied only prospectively—

that is, only to those convicted of qualifying offenses

after the law’s implementation. See Wetterling Act

§ 170101(a)(1), 108 Stat. at 2038; Final Guidelines for

the Jacob Wetterling Crimes Against Children and

Sexually Violent Offender Registration Act, 61 Fed.

Reg. 15110, 15112 (Apr. 4, 1996) (“The [Wetterling]

Act does not require states to attempt to identify and

impose registration requirements on offenders who

were convicted of offenses . . . prior to the

establishment of a conforming registration system.”).

By 1996, every state had implemented a sex

offender registry. Smith v. Doe, 538 U.S. 84, 89-90

(2003). Nonetheless, Congress continued to enact laws

requiring states to change their registration schemes

or lose certain federal funds. Like the Wetterling Act,

these laws operated prospectively, usually with an

effective date one year in the future. 2

2. SORNA’s registration requirements. In 2006,

Congress enacted SORNA as part of the Adam Walsh

Child Protection and Safety Act. SORNA’s declared

purpose is “to protect the public” by “establish[ing] a

comprehensive national system for the registration” of

2 See, e.g., Megan’s Law, Pub. L. No. 104-145, 110 Stat. 1345, 1345

(1996) and 62 Fed. Reg. 39009, 39019 (July 21, 1997) (requiring

states to release registry information to public for certain sex

offenders convicted after program established); Pam Lychner

Sexual Offender Tracking and Identification Act of 1996, Pub. L.

No. 104–236, § 10(a), 110 Stat. 3093, 3098 (effective one year after

enactment); Department of Justice Appropriations Act of 1998,

Pub. L. No. 105–119, Tit. I, § 115(c)(1), 111 Stat. 2440, 2467

(additional registration requirements delayed for one year).

“sex offenders and offenders against children.” 34

U.S.C. § 20901.

The Act established new federal mechanisms to

support state registration schemes and to foster

information sharing among jurisdictions. See, e.g., 34

U.S.C. § 20921 (creating National Sex Offender

Registry, which compiles state registration data); id.

§ 20925 (requiring development of software to enable

jurisdictions to establish uniform registries and

Internet sites); id. § 20941 (providing federal law

enforcement

resources

assist

states

apprehending missing state sex offenders).

The Act also set new, more onerous baseline

registration requirements for state systems. SORNA

enlarged the class of offenses that subject a person to

registration, 34 U.S.C. § 20911(5)(A), and for the first

time mandated that juvenile offenders as young as 14

burdensome registration obligations on individuals,

compelling them to register in multiple jurisdictions,

id. § 20913(a); to report periodically in person,

id. § 20918; and to provide additional information,

including school and employment locations, DNA,

finger and palm prints, vehicle descriptions, and

Internet identifiers, id. §§ 20914, 20916.

SORNA also created a three-tier system for

classifying sex offenders based on the offense of

conviction (rather than based on individualized risk

assessments, which many states had previously used).

See 34 U.S.C. §§ 20911, 20915 (requiring tier I

offenders, the lowest tier, to register for 15 years; tier

II offenders for 25 years; and tier III offenders for life).

SORNA provides no mechanism for offenders to

challenge their tier classification.

As with prior federal legislation, Congress

required states to comply with SORNA’s provisions in

order to receive certain federal funds. Congress gave

the states until July 2009 to implement the law,

subject to two potential one-year extensions by the

Attorney General. 34 U.S.C. § 20926(a)-(b). Based on

this timetable, SORNA phased out prior federal

registry laws, including the Wetterling Act. See

SORNA § 129, 120 Stat. 590, 600-01 (2006).

3. SORNA’s

criminal

penalties.

SORNA

created—and demanded that states create—

substantial criminal penalties for individuals who fail

to comply with its registration requirements. First, the

Act mandated that states “provide a criminal penalty

that includes a maximum term that is greater than 1

year for the failure of a sex offender to comply with”

SORNA’s requirements. 34 U.S.C. § 20913(e).

Second, the Act made the failure to register under

SORNA a federal crime in certain circumstances. The

Act states in relevant part that whoever (1) “is

required to register under” SORNA; (2) “travels in

interstate or foreign commerce”; and (3) “knowingly

fails to register or update a registration as required

by” SORNA is guilty of a federal crime punishable by

up to ten years in prison. 18 U.S.C. § 2250(a).

4. SORNA’s legislative history and delegation to

the Attorney General. Because SORNA placed the bulk

of its administrative burden on states, the question of

its retroactive application to pre-Act offenders was a

“controversial issue with major policy significance and

practical ramifications for states.” Wayne A. Logan,

The Adam Walsh Act and the Failed Promise of

Administrative Federalism, 78 Geo. Wash. L. Rev. 993,

999-1000 (2010). Legislators estimated that this group

of pre-Act offenders included more than 500,000

people. See 151 Cong. Rec. H20,175 (daily ed. Sept. 14,

2005) (statement of Rep. Harris); 151 Cong. Rec.

H20,193 (daily ed. Sept. 14, 2005) (statement of Rep.

Emanuel).

A House of Representatives bill would have made

the law applicable to pre-Act offenders. See H.R. 4472,

109th Cong. § 111(3) (as passed by House Mar. 8, 2006)

(defining sex offender to include persons convicted

“before or after the enactment” of the Act); id. § 113(d)

(stating Attorney General “shall prescribe rules for the

registration of sex offenders convicted before the

enactment” of the Act). A Senate bill, however, left the

question of the Act’s retroactive application to the

Attorney General. See S. 1086, 109th Cong. § 104(a)(8)

(as passed by Senate, May 4, 2006).

Congress ultimately declined to resolve the issue,

enacting a final version similar to the Senate bill:

“Congress elected not to decide for itself whether the

Act’s registration requirements—and thus § 2250(a)’s

criminal penalties—would apply to persons who had

been convicted of qualifying sex offenses before

SORNA took effect. Instead, Congress delegated to the

Attorney General the authority to decide that

question.” Carr v. United States, 560 U.S. 438, 466

(2010) (Alito, J., dissenting).

The final law states, in relevant part: “The

Attorney General shall have the authority to specify

the applicability of the requirements of this

subchapter to sex offenders convicted before the

enactment of this chapter . . . and to prescribe rules for

the registration of any such sex offenders . . . .” 34

U.S.C. § 20913(d).

This grant of authority is entirely permissive: it

“does not require [the Attorney General] to act at all.”

U.S. Br. 23, Reynolds v. United States, 565 U.S. 432

(2012) (No. 10-6549). Or “he could . . . wait several

years before acting.” Id. at 24. Section 20913(d) further

allows the Attorney General to “change his mind at

any given time or over the course of different

administrations.” Id.

The Attorney General was thus given the power to

decide what Congress declined to resolve: whether

SORNA would apply to pre-Act offenders at all; which

pre-Act offenders would be required to register; and

how SORNA’s various provisions would be applied to

these individuals.

5. The Attorneys General’s retroactivity decisions.

When SORNA was first passed, then-Attorney

General Alberto R. Gonzales took no action. Reynolds

v. United States, 565 U.S. 432, 443 (2012). About six

months later, he issued an Interim Rule stating that

SORNA requires registration of “all sex offenders,

including sex offenders convicted of the offense for

which registration is required prior to the enactment

of that Act.” 28 C.F.R. § 72.3; Applicability of the Sex

Offender Registration and Notification Act, 72 Fed.

Reg. 8894 (Feb. 28, 2007). 3

In 2008, Attorney General Michael B. Mukasey

promulgated the SMART Guidelines. See The

The Attorney General did not comply with the

Administrative Procedure Act’s (APA’s) notice and comment

procedures before issuing this rule, instead invoking the APA’s

“good cause” exception. See United States v. Brewer, 766 F.3d 884,

889 (8th Cir. 2014). The circuits “are divided over whether the

Attorney General’s justifications for extending SORNA to all preAct offenders without adhering to the requirements of the APA

were sufficient.” Id. (laying out split).

National Guidelines for Sex Offender Registration and

Notification, 73 Fed. Reg. 38030 (July 2, 2008). These

Guidelines stated that SORNA required states to

Specifically, SORNA required registration of pre-Act

offenders: (i) then “incarcerated or under [probation or

parole] supervision, either for the predicate sex offense

or for some other crime”; (ii) “already registered or

subject to a pre-existing sex offender registration

requirement under the jurisdiction’s law”; or (iii) who

later “reenter the jurisdiction’s justice system because

of conviction for some other crime (whether or not a

sex offense).” Id. at 38046.

In 2011, Attorney General Eric H. Holder, Jr.

issued supplemental rules making further changes:

SORNA no longer required states to register all preAct offenders who reenter the system—only those

convicted of a new felony offense. See Supplemental

Guidelines for Sex Offender Registration and

Notification, 76 Fed. Reg. 1630, 1639 (Jan. 11, 2011).

Attorneys General have also taken different

positions as to how SORNA applies to pre-Act

offenders. For example, in the 2008 SMART

Guidelines, Attorney General Mukasey addressed

SORNA’s durational requirements and determined

that, as a default, pre-Act offenders received no credit

for time previously spent in the community before

SORNA was enacted. See The National Guidelines for

Sex Offender Registration and Notification, 73 Fed.

Reg. at 38036. However, states were permitted to

adopt a different rule to “reduce[]” the “retroactive

application” of SORNA. See id. The Attorney General

used the following example:

SORNA § 115 requires registration for 25

years for a [tier II] sex offender . . . . A sex

offender

who

was

released

from

imprisonment for such an offense in 1980 is

already more than 25 years out from the time

of release. In such cases, a jurisdiction may

credit the sex offender with the time

elapsed . . . and does not have to require the

sex offender to register . . . .

Id. at 38047 (emphasis added); see also id. at 38036

(stating jurisdictions had “option” to credit prior time,

although “SORNA’s requirements apply to all sex

offenders, regardless of when they were convicted”).

In the 2010 Final Rule, Attorney General Holder

took the opposite position: he opined that SORNA

credited pre-Act offenders with their entire prior

period in the community, regardless of what a local

jurisdiction might decide. The Attorney General used

the same example of a tier II offender convicted in

1980, who was now freed from SORNA’s requirements:

[I]f a person was released from imprisonment

in 1980 for a sex offense that places him in tier

II, his SORNA registration period based on

that offense ended in 2005—whether or not he

was ever actually registered for the offense—

and he is subject to no present registration

requirement based on SORNA . . . .

Applicability of the Sex Offender Registration and

Notification Act, 75 Fed. Reg. 81849, 81851 (Dec. 29,

2010).

6. States’ objections and resistance to SORNA.

Following the 2007 Interim Rule, several states

submitted comments to the Attorney General

objecting to SORNA’s retroactivity, expressing

concerns over its fairness to past offenders (especially

juveniles) and noting the adverse impact that

registering pre-Act offenders would have on state

resources. “Almost all [the comments received]

objected to the retroactive application” of SORNA. See

Logan, supra, at 1002.

For example, the National Conference of State

Legislatures told the Attorney General that his

retroactivity decision would infringe upon “state

sovereignty over the treatment of sex offenders as laid

out in each state’s respective sex offender registry

provisions.” Id. As the heads of six New York State

agencies stated in a joint letter: “When each state first

created its sex offender registry, it made a choice about

how the registration requirements would be applied to

previously convicted offenders. The decision on

retroactive applicability raises substantial practical

and policy concerns that are more appropriately

addressed by the individual states.” Id. at 1003

(quoting Letter from Denise O’Donnell et al.).

Other states similarly objected to “the increased

burden associated with retroactivity.” Id. at 1004 n.65

(citing e-mails from officials in Michigan, California,

and Idaho). 4

4 States also expressed more global concerns over the

Attorney General’s proposals. See, e.g., Logan, supra, at 1004

(noting that Virginia objected that the “proposed regulations

would be extremely cumbersome to implement and cause

Virginia to devote significant resources to the collection of

information which would be of limited use”); id. (quoting the

National Conference of State Legislatures’ objections that the

Attorney General’s proposed guidelines are a “one-size-fits all

approach” that “compound the burdensome, preemptive scheme

of the underlying law they seek to clarify”).

As of May 2018, the Attorney General has

determined that only 18 states (and four territories)

have substantially implemented SORNA. See Dep’t of

Justice, Office of Sex Offender Sentencing,

Monitoring,

Apprehending,

Registering,

and

Tracking,

SORNA

Implementation

Status,

www.smart.gov/sorna-map.htm. Four of the five most

populous states—California, Texas, New York, and

Illinois—have not implemented the law. See id.

7. Challenges to SORNA’s retroactivity and

delegation provision. In the roughly 12 years since it

was passed, SORNA has spawned a host of legal

challenges. Among other issues, the courts of appeals

divided on whether SORNA applied to pre-Act

offenders of its own force or only after the Attorney

General exercised his authority under Section

20913(d). See Reynolds, 565 U.S. at 438-39.

Some judges observed that, if SORNA did not

apply to pre-Act offenders of its own force, the statute

would raise a serious nondelegation issue. For

example, in her concurring opinion in United States v.

Fuller, Judge Raggi wrote that she “fail[ed] to see what

guidance [SORNA] provide[s] to the Attorney General

in exercising legislative authority to decide whether or

not SORNA’s registration requirements should apply

to prior offenders at all.” 627 F.3d 499, 511 (2d Cir.

2010) (Raggi, J., concurring). This would be especially

problematic because it would give the Attorney

General, “the very officer charged with executive

power to enforce the criminal laws, the legislative

power unilaterally to pronounce the scope of a law

with criminal consequences.” Id. at 511-12.

In Reynolds, 565 U.S. at 439, the Court

nevertheless held that “the textual language” of

SORNA dictated that it did not apply of its own force

to pre-Act offenders; instead Congress left the issue to

the Attorney General. The Court reserved the question

of whether this delegation is unconstitutional. Id. at

441. In dissent, Justice Scalia, joined by Justice

Ginsburg, wrote that “it is not entirely clear . . . 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 . . . sailing close to the wind

with regard to the principle that legislative powers are

nondelegable . . . .” Id. at 450 (Scalia, J., dissenting).

B. Factual and procedural background

1. In 2005, before SORNA was enacted, petitioner

Herman Avery Gundy entered an Alford plea in

Maryland to Sexual Offense in the Second Degree, in

violation of Maryland Criminal Law § 3-306, for the

sexual assault of a minor. J.A. 25, 60. He was

sentenced to 20 years in prison, with ten years

suspended, and five years of probation. Id. At that

time, Maryland had its own sex offender registration

system, and petitioner’s conviction obligated him to

2. In November 2010, petitioner completed the

custodial portion of this state sentence and was

transferred to the custody of the Federal Bureau of

Prisons to serve a related federal sentence. J.A. 26.

The Bureau of Prisons transferred petitioner from

Maryland to a prison in Pennsylvania. Id. Then, in

July 2012, it transferred him from Pennsylvania to a

halfway house in New York for completion of his

sentence. Id. Petitioner was released from this

halfway house on August 27, 2012, and remained in

New York. Id. 27. He was arrested in New York in

connection with this case in October 2012. Id. 62.

3. By indictment dated January 7, 2013, in the

United States District Court for the Southern District

of New York, the Government charged petitioner with

violating SORNA’s federal criminal provision, 18

U.S.C. § 2250(a). J.A. 45. The indictment alleged that

petitioner: (1) was “an individual required to register”

under SORNA based on the 2005 Maryland sex

offense, (2) traveled in interstate commerce, and

(3) “thereafter resided in New York without

registering” as required under SORNA. Id.

Petitioner moved to dismiss the indictment. J.A. 3.

Because his sex offense conviction predated SORNA,

he argued, among other things, that the Act could not

constitutionally apply to him: the nondelegation

doctrine prohibited Congress from outsourcing to the

Attorney General the fundamentally legislative

decision about whether SORNA applies to pre-Act

offenders. Id. 90.

The district court dismissed the indictment on

unrelated grounds, J.A. 60, but the Second Circuit

reversed and remanded, id. 20.

4. On remand, the district court rejected

petitioner’s nondelegation argument, declaring itself

bound by the Second Circuit’s decision in United

States v. Guzman, 591 F.3d 83, 92 (2d Cir. 2010).

J.A. 90. In Guzman, the Second Circuit acknowledged

that “Congress needs to provide the delegated

authority’s recipient an ‘intelligible principle’ to guide

it.” Id. 108 (quoting J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928)). The Second Circuit

nonetheless held that Section 20913(d) satisfied the

nondelegation doctrine because it gave the Attorney

General the power to determine SORNA’s application

“only with respect to the limited class of offenders who

were convicted of covered sex offenses prior to

SORNA’s enactment.” J.A. 108-09. The Second Circuit

also suggested that the existence of a detailed

statutory regime to govern post-Act offenders supplies

an intelligible principle for deciding whether SORNA

should apply to pre-Act offenders. See id. 108.

Petitioner and the Government proceeded to a

bench trial on stipulated facts, at which petitioner was

found guilty. J.A. 16. The district court sentenced him

to time served and five years of supervised release. Id.

5. Petitioner

renewed

his

nondelegation

argument on appeal. The Second Circuit rejected this

argument and affirmed. J.A. 17-18. In a singlesentence footnote, the court stated that the argument

was foreclosed by its decision in Guzman. Id. 18 n.2.

SUMMARY OF ARGUMENT

This case concerns one of the Constitution’s basic

structural constraints on the exercise of coercive

governmental power, in a context where that power

impacts individual liberty in the most profound way.

The nondelegation doctrine bars Congress from

abdicating its legislative function and transferring

lawmaking power to another branch. Yet Section

20913(d) of SORNA grants the Attorney General

undirected discretion to decide whether the more than

500,000 people convicted of sex offenses before July

2006 are subject to onerous federal registration

requirements and the attendant criminal penalties for

failing to register. By permitting the Attorney General

to make these decisions, and to define the reach of

criminal laws, the statute grants the Attorney General

what can only be characterized as “legislative” powers.

The statute is thus unconstitutional under any

formulation of the nondelegation doctrine. Under the

original understanding of that doctrine, it is

unconstitutional because it transfers to the Attorney

General the authority to make generally applicable

rules of private conduct, backed by criminal sanctions.

Under more permissive conceptions of Congress’s

delegation power, Section 20913(d) is unconstitutional

because it transfers rulemaking authority without

setting forth a sufficiently intelligible principle—i.e.,

without doing the “legislative” work. The intelligible

principle must include, at minimum, standards or

criteria to guide and restrain the exercise of the

delegated power.

But Section 20913(d) is standardless. It includes

no directives to the Attorney General as to whether he

should make any pre-Act offenders register; which

offenders should be required to register; or even what

he must (or must not) consider in deciding these

questions. As the Government itself has stated, the

delegation allows the Attorney General to take no

action; to wait years before acting; and, if he acts, to

simply reverse course at any time. His discretion is

plenary. Like the statutes the Court invalidated in

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935),

and A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935), Section 20913(d) fails to provide

the requisite guidance to the Executive.

Moreover, as the Court has recognized, the

amount of guidance required depends on the character

and importance of the delegated power. Delegations of

significant power require more guidance than

delegations relating to minor issues. This principle

confirms the absence of sufficient guidance here:

Section 20913(d) grants the Attorney General

authority to make policy decisions that bear directly

on individual liberty (by determining the reach of

registration requirements and criminal penalties for

half a million people); disturb settled expectations of

law (by deciding if SORNA imposes new registration

obligations based on conduct that occurred sometimes

decades earlier); and infringe states’ sovereign

interests (by regulating purely intrastate conduct and

dictating to states, as a condition of federal funding,

how they must regulate and criminalize conduct

within their own borders). Yet the statute gives the

Attorney General no meaningful guidance as to how to

exercise these vast powers. For all of these reasons,

the statute is unconstitutional.

ARGUMENT

The Constitution prohibits Congress from

delegating its legislative powers,

particularly in the criminal context.

1. The Constitution establishes a tripartite system

of government that separates power among the three

federal branches. Article I dictates that “[a]ll

legislative Powers herein granted shall be vested in a

Congress of the United States.” U.S. Const. art. I, § 1.

It prescribes that laws be made according to “a single,

finely wrought and exhaustively considered,

procedure,” including bicameralism and presentment.

INS v. Chadha, 462 U.S. 919, 951 (1983); see also

Clinton v. City of New York, 524 U.S. 417, 445 (1998)

(invalidating Line Item Veto Act because President

cannot change or “effect the repeal of laws, for his own

policy reasons, without observing the procedures set

out in Article I, § 7”).

The nondelegation doctrine protects the

constitutional separation of powers and lawmaking

procedure by prohibiting Congress from delegating its

legislative powers and thereby circumventing this

carefully crafted scheme. See, e.g., Mistretta v. United

States, 488 U.S. 361, 371-72 (1989); J.W. Hampton,

Jr., & Co. v. United States, 276 U.S. 394, 405-06

(1928). The doctrine protects individual liberty,

promotes democratic accountability, and preserves

federalism.

a. Individual liberty. The nondelegation doctrine,

like the separation of powers more generally, “diffuses

power the better to secure liberty.” Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)

(Jackson, J., concurring). The Framers understood

that ‘‘[t]he accumulation of all powers, legislative,

executive, and judiciary, in the same hands . . . may

justly be pronounced the very definition of tyranny.’’

The Federalist No. 47, at 301 (James Madison)

(Clinton Rossiter ed., 1961); see also Bowsher v. Synar,

478 U.S. 714, 722 (1986) (“Even a cursory examination

of the Constitution reveals the influence of

Montesquieu’s thesis that checks and balances were

the foundation of a structure of government that

would protect liberty.”).

b. Deliberative lawmaking and democratic

accountability. The nondelegation doctrine also fosters

a particular form of lawmaking and democratic

accountability. “Article I’s precise rules of

representation, member qualifications, bicameralism,

and voting procedure make Congress the branch most

capable of responsive and deliberate lawmaking.”

Loving v. United States, 517 U.S. 748, 757-58 (1996).

Both deliberation and responsiveness are key: the

Constitution’s specific, structured lawmaking process

promotes the regularity and stability that the rule of

law requires, while Congress’s representative nature

ensures broad participation in lawmaking.

Moreover, prohibiting Congress from delegating

its lawmaking function ensures that citizens can

readily identify the source of laws, thereby preventing

government actors from “wield[ing] power without

owning up to the consequences.” Dep’t of Transp. v.

Ass’n of Am. R.R., 135 S. Ct. 1225, 1234 (2015) (Alito,

J., concurring).

c. States’ interests. Finally, the nondelegation

doctrine helps preserve state sovereignty. Within our

constitutional framework, states maintain their

sovereign interests, in part, through their

representatives’ participation in the federal

legislature, particularly the Senate. See Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 550-51

(1985). “[T]he structural safeguards inherent in the

normal operation of the legislative process operate to

defend state interests from undue infringement.”

Geier v. Am. Honda Motor Co., 529 U.S. 861, 907

(2000) (Stevens, J., dissenting); see generally Herbert

Wechsler, The Political Safeguards of Federalism, 54

Colum. L. Rev. 543 (1954).

2. Because of its focus on protecting individual

liberty, the nondelegation doctrine is enforced most

rigorously in the criminal context. 5 The Framers

Several specific constitutional provisions safeguard the

separation of powers in the criminal context. While Congress may

single out parties to a civil suit, Bank Markazi v. Peterson, 136

S. Ct. 1310, 1327 (2016), the Bill of Attainder Clause, U.S. Const.

art. I, § 9, prevents Congress from singling out persons for

criminal punishment. This protection is “an implementation of

the separation of powers, a general safeguard against legislative

exercise of the judicial function, or more simply—trial by

recognized that, with “criminal subjects,” Congress

should “leave as little as possible to the discretion of

those who are to apply and to execute the law.” James

Madison, The Report of 1800, in 14 The Papers of

James Madison 266, 307, 324 (Robert A. Rutland et al.

eds., 1983). As a result, the Court has made clear that

“defining crimes” is a “legislative” function, United

States v. Evans, 333 U.S. 483, 486 (1948), and that

Congress cannot delegate “the inherently legislative

task” of determining what conduct “should be

punished as crimes.” United States v. Kozminski, 487

U.S. 931, 949 (1988); see also United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“It is the

legislature . . . which is to define a crime, and ordain

its punishment.”).

This special prohibition on congressional

delegation of criminal lawmaking power is reflected in

the Court’s void-for-vagueness doctrine. Vague

criminal statutes are prohibited both because

individuals are entitled to sufficient notice as to what

constitutes a crime and to prevent legislatures from

“abdicat[ing] their responsibilities for setting the

standards of the criminal law.” Smith v. Goguen, 415

U.S. 566, 574-75 (1974); see also Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972) (vague laws

“impermissibly delegate[] basic policy matters to

legislature.” United States v. Brown, 381 U.S. 437, 442 (1965).

Similarly, while Congress may impose retroactive civil liability,

Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994), the Ex

Post Facto Clause, U.S. Const. art. I, § 9, circumscribes the ability

of Congress to criminalize behavior retrospectively. In this way,

the Clause “upholds the separation of powers by confining the

legislature to penal decisions with prospective effect and the

judiciary and executive to applications of existing penal law.”

Weaver v. Graham, 450 U.S. 24, 29 n.10 (1981).

policemen”); United States v. L. Cohen Grocery Co.,

255 U.S. 81, 89 (1921) (invalidating vague criminal

statute as delegation to define crimes). “In that sense,

the [void-for-vagueness] doctrine is a corollary of the

separation of powers—requiring that Congress, rather

than the executive or judicial branch, define what

conduct is sanctionable and what is not.” Sessions v.

Dimaya, 138 S. Ct. 1204, 1212 (2018).

Because the Constitution forbids the legislature

from transferring the power to define crimes, the

Court has also withheld deference under Chevron

U.S.A., Inc. v. Natural Resource Defense Council, Inc.,

467 U.S. 837 (1984), for agencies’ interpretations of

criminal statutes. Chevron deference is premised on

the theory that statutory ambiguity is an implicit

delegation from Congress to the agency to resolve the

ambiguity. Id. at 844. The Court’s refusal to grant

Chevron deference in the criminal context reflects the

Court’s repeated admonition that Congress, not the

Executive, must specify the terms of criminal laws.

See, e.g., Abramski v. United States, 134 S. Ct. 2259,

2274 (2014) (rejecting agency interpretation of

criminal statute as irrelevant because “criminal laws

are for courts, not for the Government, to construe”);

United States v. Apel, 134 S. Ct. 1144, 1151 (2014)

(“[W]e have never held that the Government’s reading

of a criminal statute is entitled to any deference.”).

3. While concerns about the separation of powers

reach their apex in the criminal context, they are

reduced when considering shared, or non-Article I,

powers. “It will not be contended that Congress can

delegate . . . powers which are strictly and exclusively

legislative.” Wayman v. Southard, 23 U.S. (10 Wheat.)

1, 42-43 (1825). But Congress “may certainly,” id. at

43, transfer “non-legislative powers which Congress

could exercise” itself, United States v. Grimaud, 220

U.S. 506, 517 (1911); accord Dimaya, 138 S. Ct. at

1248 (Thomas, J., dissenting) (“Congress does not

‘delegate’ when it merely authorizes the Executive

Branch to exercise a power that it already has.”).

Thus, for example, Congress has broad authority

to assign to the President matters within the

Executive Branch’s traditional domain, including

matters relating to foreign affairs and the military.

See, e.g., United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304, 319-320 (1936); Loving v. United States,

517 U.S. 748, 772-73 (1996). Congress and the

Executive have also historically shared the authority

to grant patents or to administer other public

franchises and public lands. See, e.g., Oil States

Energy Servs., L.L.C. v. Greene’s Energy Grp., L.L.C.,

138 S. Ct. 1365, 1373-74 (2018). Congressional

assignments in these contexts do not violate the

nondelegation doctrine because they are not

delegations of exclusively “legislative” powers.

4. The Court has not “exactly drawn” the line

separating “legislative” from executive or judicial

powers, see Wayman, 23 U.S. (10 Wheat.) at 42-43, but

one thing is clear: the power to enact generally

applicable, binding rules of private conduct is

“legislative.” See Yakus v. United States, 321 U.S. 414,

424 (1944); see also The Federalist No. 75, at 450

(Alexander Hamilton) (Clinton Rossiter ed., 1961)

(“The essence of the legislative authority is to enact

laws, or, in other words, to prescribe rules for the

regulation of the society.”). As the Court stated in

Yakus, “[t]he essentials of the legislative function are

the determination of the legislative policy and its . . .

promulgation as a defined and binding rule of

conduct.” 321 U.S. at 424; see also Mistretta, 488 U.S.

at 396 (upholding delegation where Congress did not

transfer the authority to make rules that “bind or

regulate the primary conduct of the public”); Grimaud,

220 U.S. at 516 (congressional grant of power to

Executive to regulate national forests conferred

“administrative functions” rather than “legislative

power,” because the forestry regulations “do not

declare general rules with reference to rights of

persons and property, nor do they create or regulate

obligations and liabilities”).

II. Section 20913(d) of SORNA violates the

nondelegation doctrine.

Section 20913(d) violates the Constitution under

any formulation of the nondelegation doctrine. First,

the delegation is invalid under an originalist

understanding of the nondelegation doctrine because

the statute transfers to the Attorney General what can

only be described as legislative authority. Second, the

statute is unconstitutional because it fails to provide a

sufficiently intelligible principle to cabin and direct

the Attorney General’s exercise of the delegated

powers. The significance and character of those

powers call for substantial, meaningful congressional

guidance in the statute, but Section 20913(d) provides

the Executive no guidance whatsoever.

A. Section 20913(d) impermissibly

delegates quintessentially “legislative”

powers.

1. Section 20913(d) of SORNA grants the Attorney

General quintessentially legislative powers: it allows

him to prescribe rules, backed by criminal sanctions,

governing the conduct of roughly half a million private

individuals, including petitioner.

This delegation grants the Attorney General

authority to decide if individuals like petitioner must

submit to government registration and to set the

terms and duration of that registration. It affects the

substantive liberty interests of these individuals in the

most profound way.

SORNA also empowers the Attorney General to

determine the reach of both federal and state criminal

laws. First, by allowing the Attorney General to decide

which, if any, pre-Act offenders are “required to

Attorney General the authority to define, and

determine the scope of, the elements of SORNA’s new

federal criminal offense. See 18 U.S.C. § 2250(a) (first

element of offense is being “required to register under

the Sex Offender Registration and Notification Act”

and third element is “knowingly fail[ing] to register or

update a registration as required by [SORNA]”); see

also Carr v. United States, 560 U.S. 438, 446-47 (2010)

(holding that first element is triggered only by a

requirement to register under SORNA, not by the

underlying sex offense conviction). The Attorney

General is thus empowered to decide unilaterally

whether a pre-Act offender’s conduct—failing to

Second, the Act effectively allows the Attorney

General to determine the scope of new state crimes. As

a condition of federal funding, SORNA commands

states to adopt felony penalties for offenders who fail

to register as required under the Act. See 34 U.S.C.

§ 20913(e). Because Section 20913(d) gives the

Attorney General the authority to decide which preAct state offenders, if any, must register under

SORNA, the statute effectively empowers the

Attorney General to determine the reach of these new

state criminal laws.

The exercise of these broad powers over

individuals is lawmaking in the most basic sense.

Accordingly, the statute confers on the Attorney

General powers that can only be described as

“legislative.”

2. Under an originalist interpretation of the

Constitution, the legislative nature of these delegated

powers ends the inquiry and requires this Court to

invalidate the delegation. See, e.g., Dep’t of Transp. v.

Ass’n of Am. R.R., 135 S. Ct. 1225, 1246 (2015)

(Thomas,

J.,

concurring)

(“[T]he

original

understanding of the federal legislative power . . .

require[s] that the Federal Government create

generally applicable rules of private conduct only

through the constitutionally prescribed legislative

process.”); Wayman v. Southard, 23 U.S. (10 Wheat.)

1, 42-43 (1825) (“It will not be contended that Congress

can delegate . . . powers which are strictly and

exclusively legislative. . . . [Those powers] must be

entirely regulated by the legislature itself.”); Field v.

Clark, 143 U.S. 649, 692 (1892) (“That congress cannot

delegate legislative power to the president is a

principle universally recognized as vital to the

integrity and maintenance of the system of

government ordained by the Constitution.”).

B. SORNA’s delegation to the Attorney

General fails the intelligible principle

test.

In addition to violating originalist constitutional

principles governing delegations of power, Section

20913(d) fails the Court’s prevailing “intelligible

principle” test.

1. To state an intelligible principle, a

statute must provide sufficiently clear

guidance on fundamental policy

questions.

a. While affirming that Congress cannot delegate

its legislative powers, the Court has recognized that

“separation-of-powers principle[s] . . . do not prevent

Congress from obtaining the assistance of its

coordinate Branches.” Mistretta v. United States, 488

U.S. 361, 372 (1989). The Court’s modern

jurisprudence has been “driven by a practical

understanding that in our increasingly complex

society, replete with ever changing and more technical

problems, Congress simply cannot do its job absent an

ability to delegate power under broad general

directives.” Id.

The Court developed the “intelligible principle”

test to evaluate such congressional delegations of

power. Under this test, if “Congress shall lay down by

legislative act an intelligible principle to which the

person or body [to whom power is delegated] is

directed to conform, such legislative action is not a

forbidden delegation of legislative power.” J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394,

409 (1928).

When Congress lays down a sufficiently clear

guiding principle, the Court has construed the powers

delegated not to be “legislative,” even if they involve

some degree of discretion, because Congress itself has

made all of the fundamental policy decisions—i.e., it

has done the “legislative” work. See J.W. Hampton,

Jr., & Co., 276 U.S. at 407. As the Court explained in

J.W. Hampton, Jr. & Co., when Congress delegates

pursuant to an “intelligible principle” it “is not an

exact statement” to claim that the Executive is

exercising “legislative power” because such “power has

already been exercised legislatively by the body vested

with that power.” Id.; accord Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001); United

States v. Shreveport Grain & Elevator Co., 287 U.S. 77,

85 (1932) (“[T]he legislative power of Congress cannot

be delegated . . . . But Congress may declare its will,

and, after fixing a primary standard, devolve . . . the

‘power to fill up the details’ . . . .”).

b. In addition to being clear enough to guide the

Executive, this intelligible principle must enable

courts to determine whether the delegate has acted

within the bounds of the delegated authority and in

accordance with Congress’s expressed will. See, e.g.,

Yakus v. United States, 321 U.S. 414, 423, 425 (1944)

(courts must be able to see “in an appropriate

proceeding” that there is a “substantial basis” for the

executive action and that the “will of Congress has

been obeyed”); Indus. Union Dep’t AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607, 686 (1980) (Rehnquist,

J., concurring) (intelligible principle requirement

“ensures that courts . . . reviewing the exercise of

delegated legislative discretion will be able to test that

exercise against ascertainable standards”).

The intelligible principle requirement thus

preserves “both sets of constitutional checks—judicial

and political—on the exercise of coercive authority in

a ‘government of laws.’” Laurence H. Tribe, American

Constitutional Law 985 (3d ed. 2000). It permits a

court to police delegations to ensure the delegate does

not exceed Congress’s grant of authority and follows

Congress’s will. And by requiring Congress to provide

adequate guidance in the first instance, the intelligible

principle test ensures that Congress itself makes the

critical legislative policy decisions.

c. Under the intelligible principle test, the amount

of required congressional guidance depends on the

“extent and character” of the power conferred. See

J.W. Hampton, Jr., & Co., 276 U.S. at 406; see also

Whitman, 531 U.S. at 475 (“[T]he degree of agency

discretion that is acceptable varies according to the

scope of the power congressionally conferred.”).

Congress itself must regulate certain “important

subjects,” but may more freely delegate to the

executive in areas of “less interest.” Wayman, 23 U.S.

(10 Wheat.) at 43. Thus, while Congress “must provide

substantial guidance on setting air standards that

affect the entire national economy,” far less guidance

is necessary when the Executive determines relatively

minor matters, like the definition of “country

elevators.” Whitman, 531 U.S. at 475.

Congress must speak with particular clarity when

it confers powers that “touch[] constitutionally

sensitive areas.” Tribe, supra, at 987. “[A]ction . . . in

areas of doubtful constitutionality[] requires careful

and purposeful consideration by those responsible for

enacting and implementing our laws.” Greene v.

McElroy, 360 U.S. 474, 507 (1959); see also Kent v.

Dulles, 357 U.S. 116, 129 (1958) (“If . . . ‘liberty’ is to

be regulated, it must be pursuant to the law-making

functions of the Congress.”); Cass R. Sunstein,

Nondelegation Canons, 67 U. Chi. L. Rev. 315, 317

(2000) (noting that the nondelegation doctrine’s “most

convincing claim” is “that certain highly sensitive

decisions should be made by Congress”).

When transferring powers that touch upon these

areas, Congress must provide sufficiently clear

directives to show that it deliberated and made the

required “legislative judgment.” United States v.

Robel, 389 U.S. 258, 275 (1967) (Brennan, J.,

concurring) (“The area of permissible indefiniteness

[of a delegation] narrows, however, when the

regulation invokes criminal sanctions and potentially

affects fundamental rights”); see also Bilski v. Kappos,

561 U.S. 593, 649 (2010) (Stevens, J., concurring)

(“[A]t the ‘fringes of congressional power,’ ‘more is

required of legislatures than a vague delegation to be

filled in later[.]’”) (quoting Barenblatt v. United States,

360 U.S. 109, 139-40 (1959) (Black, J., dissenting)).

This principle is of course manifest in the

requirement that Congress—not the Executive—

decide the scope of criminal laws, as discussed above

in Section I.2.

It is also reflected in the need for Congress to

speak with specificity regarding whether a law should

apply retroactively—another sensitive, significant

decision that requires legislative deliberation and

accountability. Retroactivity “is not favored in the

law,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

208 (1988), because retroactive statutes “sweep away

settled

expectations”

“without

individualized

consideration,” and impede rule-of-law values.

Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994).

The Court thus looks for Congress to clearly state that

a law is retroactive, or clearly authorize the Executive

to order retroactivity. See, e.g., Bowen, 488 U.S. at 20715 (invaliding retroactive rule because delegation did

not clearly require retroactivity). This ensures that

“Congress itself has determined that the benefits of

retroactivity outweigh the potential for disruption or

unfairness.” Landgraf, 511 U.S. at 268.

Congress must also provide clear guidance for

laws that impinge upon state sovereignty or otherwise

disturb the traditional federal-state balance of power.

See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 464 (1991)

(requiring plain statement so that court can be

“absolutely certain” Congress intended to interfere

with state selection of judges). This is a corollary to the

general presumption against federal preemption in

areas traditionally regulated by the states. See, e.g.,

California v. ARC Am. Corp., 490 U.S. 93, 101 (1989).

Given the character and significance

of the power conferred by Section

20913(d), and the absence of guidance,

this delegation is unconstitutional.

In light of the need for Congress to provide more

“substantial guidance” when delegating in important

areas, Whitman, 531 U.S. at 475, Section 20913(d) is

unconstitutional. The delegation here gives the

Attorney General the power to define the reach of both

federal and state criminal laws. It empowers the

Attorney General to decide whether the Act applies

retroactively, allowing him to impose requirements

that upset individuals’ settled expectations and, in

some cases, disturb final court judgments issued

under pre-SORNA laws. It also purports to allow the

Attorney General to regulate the purely intrastate

conduct of pre-Act offenders, infringing a traditional

area of state sovereignty.

In other words, the delegation involves exactly the

sort of significant and constitutionally sensitive

decisions that require careful legislative deliberation

and especially clear legislative guidance. But this

statute provides the Attorney General with no

guidance with respect to pre-Act offenders.

a. Section 20913(d) states in relevant part: “The

Attorney General shall have the authority to specify

the applicability of the requirements of this

subchapter [SORNA] to sex offenders convicted before

the enactment of this chapter . . . and to prescribe rules

for the registration of any such sex offenders . . . .” 34

U.S.C. § 20913(d).

SORNA does not tell an Attorney General

whether, when, or how she should expand the statute

to cover pre-Act offenders. Nor does the statute

identify any criteria an Attorney General should (or

should not) consider in making her decisions. Should

she require the registration of all offenders even if

their convictions are 15, 20, or 30 years old? Should

she consider factors other than the age of conviction in

making this decision? Should she consider the

logistical and financial burdens on states that must

The Government itself has acknowledged the

astounding breadth of this delegation. In Reynolds,

the Government explained that, pursuant to

Section 20913(d), an Attorney General “could do

nothing at all” with respect to applying SORNA to preAct offenders. U.S. Br. 2, Reynolds v. United States,

565 U.S. 432 (2012) (No. 10-6549). He could wait

several years before acting. Id. Even once he took some

position, he “could change his mind at any given time

or over the course of different administrations.” Id.

And the Attorney General could require pre-Act

offenders to “comply with some but not all of the

registration requirements.” Id.; see also Tr. of Oral

Arg. 31, Reynolds v. United States, 565 U.S. 432 (2012)

(No. 10-6549) (Government describing delegation as

“quite broad” and “plenary”).

Reynolds,

the

Court

accepted

this

understanding of the statute. It held that Section

20913(d) must be read “as conferring the authority to

apply” SORNA to pre-Act offenders and that the

“registration requirements do not apply until the

Attorney General so specifies.” Reynolds, 565 U.S. at

440, 445. The Court also acknowledged that the

statute contemplates the possibility of “different

federal registration treatment of different categories

of pre-Act offenders.” Id. at 440-41.

Nor are these descriptions of the unconstrained

nature of this delegation merely hypothetical. The

various actions of Attorneys General under Section

20913(d) reveal the sort of unguided policy making—

and policy reversals—that are the hallmark of the

exercise of unfettered discretion.

In 2006, the Attorney General took no position as

to which pre-Act offenders, if any, were required to

Then, in February 2007, he issued the Interim Rule

stating that all pre-Act offenders were required to

Offender Registration and Notification Act, 72 Fed.

8849, 8897 (Feb. 28, 2007). But in 2008, a different

Attorney General reversed course—stating in the

SMART Guidelines that SORNA required states to

Guidelines for Sex Offender Registration and

Notification, 73 Fed. Reg. 38030, 38046 (July 2, 2008).

Then, in 2011, the law changed again: another

Attorney General issued supplemental guidelines

altering which pre-Act offenders SORNA required to

Offender Registration and Notification, 76 Fed. Reg.

1630, 1635 (Jan. 11, 2011).

The Attorneys General’s policies as to how

SORNA applies to pre-Act offenders have also

changed. SORNA sets durational registration

requirements for post-Act offenders, based on the

offense of conviction. See 34 U.S.C. § 20915 (setting

terms between 15 years and life). One question for

many pre-Act offenders is how these durational

requirements apply to them. For instance, if someone

has been released since 1980, and would only be

required to register for 25 years under SORNA, does

SORNA require her registration for another 25 years

starting from its 2006 enactment—or has she already

completed her term?

The lack of statutory guidance on this question is

apparent from the Attorneys General’s changing

policies. In 2008, the Attorney General decided that

the default was to give no credit for the time offenders

previously resided in the community. See The

National Guidelines for Sex Offender Registration and

Notification, 73 Fed. Reg. 38030, 38036, 38047 (July 2,

2008). But then, in 2010, this policy changed: the

Attorney General stated he would fully credit prior

time in the community, meaning that if a person had

already been in the community for the relevant period

set forth in Section 20915, SORNA did not require her

to register at all. See Applicability of the Sex Offender

Registration and Notification Act, 75 Fed. Reg. 81849,

81851 (Dec. 21, 2010).

The point is not that the Attorneys General’s

various pronouncements regarding pre-Act offenders

represent good or bad policy. Nor is it that these

repeated policy reversals are necessarily arbitrary.

The point is that the Constitution requires Congress—

not the Attorney General—to make these sorts of

fundamental legislative choices and for Congress’s

choices to be reflected in the guidance it provides in

any delegation. That the Attorneys General have

taken such different positions underscores that

Section 20913(d) provides no guidance at all.

b. The lack of guidance attending this delegation

makes Section 20913(d) akin to the statutes the Court

invalidated in Panama Refining Co. v. Ryan, 293 U.S.

388 (1935), and A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935). Both cases

involved laws backed by criminal sanctions, and that

fact, coupled with the overall significance of the

delegated authority, weighed in the Court’s holdings

that Congress had not sufficiently constrained

Executive power in its delegations. See Fahey v.

Mallonee, 332 U.S. 245, 249 (1947) (distinguishing

Panama Refining and Schechter Poultry because they

“dealt with delegation of a power to make federal

crimes of acts that never had been such before”).

In Panama Refining, 293 U.S. at 406, the Court

struck down a statutory provision “authoriz[ing] [the

President] to prohibit the transportation in interstate

and foreign commerce of petroleum” products

produced in excess of state production quotas, socalled “hot oil.” The Court noted that whether oil could

be transported in interstate commerce was “obviously

[a question] of legislative policy.” Id. at 415. It

therefore looked to the statute to see whether

Congress had properly “set up a standard for the

President’s action; [or] . . . required any finding by the

President in the exercise of the authority to enact the

prohibition.” Id.

The statute did not do so. It did not state “whether

or in what circumstances or under what conditions”

the President was to ban hot oil, nor provide any

criteria to govern his decision. Panama Refining, 293

U.S. at 415. The statute instead endowed the

President with “unlimited authority to determine the

policy and to lay down the prohibition, or not to lay it

down, as he may see fit,” unguided by any “standard

or rule.” Id. at 415, 418. Thus, “[i]nstead of performing

its lawmaking function,” Congress had “transfer[red]

that function to the President.” Id. at 430.

Similarly, in Schechter Poultry, 295 U.S. at 529,

the Court struck down a statute authorizing the

President to adopt a code of industrial conduct that

fostered “fair competition.” The Court held that “[i]n

view of the scope of that broad declaration, and of the

nature of the few restrictions that are imposed, the

discretion of the President in approving or prescribing

codes . . . is virtually unfettered.” Id. at 541-42. It

invalidated Congress’s attempt to “abdicate or

transfer to others the essential legislative functions

with which it is vested.” Id. at 529.

As in those cases, Section 20913(d) delegates

power to the Executive with no standards to guide

him. It does not require the Attorney General to make

any factual findings before acting. It gives him the

power to lay down registration requirements for preAct offenders, or not, as he may see fit.

c. The dearth of guidance in Section 20913(d)

stands in marked contrast to statutes where the Court

has upheld congressional delegations to the Executive

in the criminal lawmaking context.

In Touby v. United States, 500 U.S. 160, 168-69

(1991), for example, the Court ruled that Congress had

provided sufficient guidance in permitting the

Attorney General to temporarily schedule, and

thereby criminalize the possession or distribution of,

new drugs under the Controlled Substances Act (CSA).

Before exercising this power, Congress required the

Attorney General to find that scheduling a new drug

was “necessary to avoid an imminent hazard to the

public safety.” Id. at 163 (citing 21 U.S.C. § 811(h)). In

making that determination, Congress further required

the Attorney General to consider three factors: the

drug’s “history and current patterns of abuse”; “[t]he

scope, duration and significance of abuse”; and

“[w]hat, if any, risk there is to the public health.” Id.

at 166 (citing 21 U.S.C. §§ 811(c)(4)-(6), 811(h)(3)).

Congress also made clear that the Attorney General

needed to make a panoply of other specific findings. Id.

at 166-67 (citing § 202(b), 21 U.S.C. § 812(b)).

The Court determined that even if “greater

congressional specificity [regarding a delegation] is

required in the criminal context,” the detailed

directives in the CSA satisfied these requirements

because they “meaningfully constrain[ed]” the

Attorney General’s discretion. Touby, 500 U.S. at 166.

Indeed, the statute at issue in Touby resembles some

of the earliest delegations approved by the Court,

which conditioned executive action on the making of

specific factual findings. See, e.g., Field v. Clark, 143

U.S. 649, 693 (1892) (holding President was not

“making laws” where delegation required him to act if

he found a particular fact).

Those delegations are completely unlike Section

20913(d), which does not require the Attorney General

to make any factual findings before applying SORNA

to pre-Act offenders. It does not tell him the factors to

consider in his decision. It does not constrain his

discretion at all.

d. The fact that SORNA grants the Attorney

General unguided discretion to decide the scope of

criminal laws is one important reason for the Court to

strike down the delegation. But it is not the only

reason. SORNA’s delegation touches on other

constitutionally sensitive areas, permitting the

Attorney General to impose new legal obligations

based on past conduct and to intrude on traditional

areas of state sovereignty. This underscores the need

for substantial and especially clear legislative

guidance to accompany the delegation. Because that

guidance is utterly lacking, these are additional

reasons for the Court to hold Section 20913(d)

unconstitutional.

1. Retroactivity. The delegation in Section

20913(d) allows the Attorney General to apply

SORNA’s registration requirements to persons based

on conduct that occurred before—sometimes decades

before—the statute’s enactment. It empowers the

Attorney General, not Congress, to decide whether

and how the Act applies to these individuals.

Assuming Congress can delegate to the Attorney

General the power to impose these more burdensome

federal registration requirements on pre-Act

offenders, Congress must provide particularly clear

guidance as to whether and under what conditions the

requirements should be imposed retroactively. 6 Yet

This Court has not yet determined whether SORNA

violates the ex post facto prohibition, see Carr v. United States,

560 U.S. 438, 442 (2010), though it upheld Alaska’s registration

system against an ex post facto challenge, Smith v. Doe, 538 U.S.

84, 105-06 (2003). SORNA is significantly more onerous than the

registration system sanctioned in Smith. See, e.g., Corey Rayburn

Yung, One of These Laws Is Not Like the Others: Why the Federal

the delegation here provides no “express terms,”

Bowen, 488 U.S. at 209—indeed, no terms at all—to

guide the Attorney General’s retroactivity decision.

2. State sovereignty. The delegation here also

demands unambiguous congressional guidance

because it allows the Attorney General to make rules

that infringe state sovereign interests.

Sex Offender Registration and Notification Act Raises New

Constitutional Questions, 46 Harv. J. Legis. 369, 386 (2009)

(noting that the “differences between SORNA and the Alaska

statute are so significant” that “§ 2250(a) should be struck down

on the grounds reviewed in Smith”).

At a minimum, action in this area of “doubtful

constitutionality” demands purposeful consideration by Congress

itself. See Greene v. McElroy, 360 U.S. 474, 507 (1959). Several

state supreme courts have distinguished Smith to hold that

retroactive application of their state registration and notification

laws violate state (or federal) ex post facto prohibitions. See

Commonwealth v. Muniz, 164 A.3d 1189, 1218, 1222-23 (Pa.

2017) (Pennsylvania registration scheme violates both state and

federal constitutions); State v. Letalien, 985 A.2d 4, 26 (Me. 2009)

(same regarding Maine scheme); Doe v. State, 111 A.3d 1077,

1100 (N.H. 2015) (New Hampshire scheme violates state

constitution); Starkey v. Okla. Dep’t of Corrections, 305 P.3d 1004,

1030 (Okla. 2013) (same regarding Oklahoma scheme); Doe v.

Dep’t of Pub. Safety & Corr. Servs., 62 A.3d 123, 143 (Md. 2013)

(same regarding Maryland scheme); Wallace v. State, 905 N.E.2d

371, 384 (Ind. 2009) (same regarding Indiana scheme); Doe v.

State, 189 P.3d 999, 1019 (Ala. 2008) (application of Alaskan

registration scheme to pre-Act offenders violates state

constitution, despite ruling in Smith). The Sixth Circuit has held

that retroactive application of Michigan’s registration law

violates the federal ex post facto prohibition. Does v. Snyder, 834

F.3d 696, 705-06 (6th Cir. 2016); cf. Millard v. Rankin, 265

F. Supp. 3d 1211, 1232-34 (D. Colo. 2017) (enforcement of

Colorado’s registration law against those with old convictions

violates Eighth and Fourteenth Amendments).

SORNA contemplates that states will retain

primary responsibility for registering and monitoring

state sex offenders. See Carr v. United States, 560 U.S.

438, 452 (2010). The retroactive application of

SORNA’s more expansive registration requirements

posed significant logistical burdens on states. See

supra at 11-12. It also ran contrary to states’ policy

choices about how to regulate affairs within their own

borders. See id.

Even if states decline to implement SORNA, the

Attorney General has stated that SORNA requires

pre-Act state sex offenders to register as required by

the Act. See 28 C.F.R. § 72.3; Applicability of the Sex

Offender Registration and Notification Act, 72 Fed.

Reg. 8894, 8895 (Feb. 28, 2007) (“SORNA directly

imposes registration obligations on sex offenders as a

matter of federal law . . . .”); id. (“In contrast to

SORNA’s provision of a three-year grace period for

jurisdictions to implement its requirements, SORNA’s

direct federal law registration requirements for sex

offenders are not subject to any deferral . . . .”);

Applicability of the Sex Offender Registration and

Notification Act, 75 Fed. Reg. 81849, 81850 (Dec. 29,

2010) (same); The National Guidelines for Sex

Offender Registration and Notification, 73 Fed. Reg.

38030, 38031 (July 2, 2008) (same).

In other words, even if a state has not

implemented SORNA and even if state registration

laws (or court judgments) do not require a state sex

offender to register, SORNA imposes a freestanding

federal registration requirement on these individuals.

See, e.g., United States v. Paul, 718 Fed. Appx. 360,

363 (6th Cir. 2017) (upholding a Section 2250

conviction of a pre-Act state sex offender whose state

judgment exempted him from state registration

because “SORNA imposes a distinct federal duty that

[the defendant’s] Tennessee judgment could not and

did not release”); United States v. Pendleton, 636

F.3d 78, 83, 85-86 (3d Cir. 2011) (upholding a Section

2250 conviction based on defendant’s failure to update

registration when he moved to Delaware, even though

he was not required to register under Delaware law).

This is a significant intrusion on state sovereign

interests and the traditional authority of states to

regulate conduct within their own borders. Even

assuming Congress has the power to encroach upon

state interests in this fashion, 7 these are the sorts of

policies that must be debated and made in Congress—

where the states are represented and can participate

more meaningfully in policymaking. Congress may not

delegate constitutionally delicate policymaking power

to another entity absent clear, meaningful guidance

indicating that Congress itself has deliberated on the

Congress has no general police power to regulate purely

intrastate, non-economic activity, including intrastate criminal

activity. See, e.g., Bond v. United States, 134 S. Ct. 2077, 2086

(2014); United States v. Kebodeaux, 570 U.S. 387, 402-03 (2013)

(Roberts, C.J., concurring). Thus, Congress likely lacks authority

to require state sex offenders to register under SORNA, as

Section 20913 requires. Unlike SORNA’s federal criminal

provision (18 U.S.C. § 2250), the registration provision contains

no reference to interstate commerce or other basis for the exercise

of federal power. If Congress itself lacks the power to require

state sex offenders to register under SORNA, this would

invalidate the delegation to the Attorney General in Section

20913(d). See, e.g., Bowsher v. Synar, 478 U.S. 714, 726 (1986)

(“Congress cannot grant to an officer under its control what it

does not possess.”); Tribe, supra, at 980-81 (“Because Congress

can give away only what is its to give, the most obvious limits on

legislative delegation are those on all legislation: the

constitutional prohibition on federal legislative action [] not

affirmatively authorized by the Constitution . . . .”).

costs and benefits of different policies, and considered

the effects on the states. Section 20913(d) lacks such

guidance.

Section 20913(d) is unconstitutional

under any formulation of the

intelligible principle test.

a. Even if the Court puts aside the particular

subject matter of this delegation, Section 20913(d)

would still be unconstitutional. Under the most

permissive formulation of the intelligible principle

test, the Court has required that Congress provide

clear guidance on fundamental policy questions. To do

this, Congress must specify, at a minimum, its

legislative objective and criteria or standards to guide

and cabin the exercise of the delegated power, or

otherwise “prescribe[] the method of achieving that

objective.” Yakus v. United States, 321 U.S. 414, 423

(1944).

For example, in Whitman v. American Trucking

Associations, 531 U.S. 457 (2001), a section of the

Clean Air Act directed the Environmental Protection

Agency to promulgate ambient air quality standards

“the attainment and maintenance of which . . . are

requisite to protect the public health.” Id. at 465

(quoting 42 U.S.C. § 7409(a)). The statute directed the

EPA to use “technical ‘criteria’ documents,” reflecting

the latest scientific knowledge, “to identify the

maximum airborne concentration of a pollutant that

the public health can tolerate, decrease the

concentration” for an “adequate” margin of safety, and

set the standard there. Id. at 465, 473.

The Court held that the terms of that delegation—

both the specific policy objective and the clearly

articulated standards to guide the decision-maker—

adequately constrained the EPA’s discretion. Id. at

465-68. The act defined a sufficiently specific goal (air

quality standards “requisite” to “protect the public

health” with an “adequate margin of safety”). Id. And

the statute told the EPA what to consider, and what

not to consider, to achieve that goal. Id. The statute

was specific enough for the Court to rule that the

delegation gave the EPA no authority to consider cost

in setting air quality standards. Id. at 465-72.

b. Here, in contrast, SORNA contains no goal

specifically relating to the delegation; no criteria to

constrain the Attorney General’s exercise of the

delegated power; and no standards by which a court

can evaluate any executive action. Section 20913(d)

instead grants the Attorney General plenary power to

determine SORNA’s applicability to pre-Act

offenders—to require them to register, or not, as she

sees fit, and to change her policy for any reason and at

any time.

One way to see the difference between Section

20913(d) and valid delegations, like that upheld in

Whitman, is to consider the absence of standards for a

court to apply in reviewing the Attorney General’s

actions. In Whitman, the Court could look to the

statute to determine if the EPA was complying with

Congress’s will and to see which actions were within

the terms of the delegation. See Whitman, 531 U.S. at

465-75; see also Yakus, 321 U.S. at 423, 425

(explaining that intelligible principle allows reviewing

courts to determine whether there is a “substantial

basis” for executive action and whether the “will of

Congress has been obeyed”).

A court is unable to conduct a similar analysis

with respect to Section 20913(d). Because the

provision states no policy objective and lists no criteria

or standards for the agent to consider, it is impossible

to determine whether the Attorneys General’s various

actions—doing nothing, requiring all pre-Act offenders

to register, requiring only certain pre-Act offenders to

This proves the absence of an intelligible principle

guiding this delegation.

The courts of appeals have not

persuasively identified an intelligible

principle in Section 20913(d).

a. Nor have the courts of appeals considering this

delegation persuasively identified any principle

limiting the Attorney General’s discretion. As a

preliminary matter, the Second Circuit downplayed

the need for legislative guidance by claiming that

Congress gave the Attorney General “only” the

authority to “determine whether or not SORNA

applies” to pre-Act offenders and, if so, to decide “how

they might comply” with the statute. J.A. 109. Because

pre-Act offenders constitute “a limited class of

individuals,” the Second Circuit concluded, the

authority Section 20913(d) confers is “highly

circumscribed.” J.A. 108.

This analysis is flawed. First, “[a] delegation of

authority to determine the potential criminal exposure

of half a million people cannot be deemed narrow.”

United States v. Fuller, 627 F.3d 499, 511 (2d Cir.

2010) (Raggi, J., concurring); see also id. at 505 & n.2

(majority opinion) (describing “sole authority to

determine SORNA’s criminal reach” as an “expansive

and profound power” and “awesome authority”).

Second, the Second Circuit’s approach confuses the

need for meaningful statutory guidance with the

question of how many people a delegation affects.

Congress cannot cede its lawmaking power to another

branch just because that power concerns a discrete

group. If that were the case, Congress could assign to

the Attorney General the power to issue binding rules

of conduct for the entire population of Wyoming,

because the roughly half-million people who live there

constitute only a “limited class of individuals.”

Similarly, under the Second Circuit’s logic,

Congress would have been free to make the delegation

in Panama Refining, because the rules concerned only

the trafficking of “hot oil.” Yet the Court there held

that, even though “the act to be performed [by the

Executive was] definite and single,” the delegation

was still invalid because “the necessity, time, and

occasion of the performance ha[d] been left in the end

to the discretion of the delegate.” Schechter Poultry,

295 U.S. at 551 (Cardozo, J., concurring) (describing

Panama Refining).

b. The question is not whether a class of more than

500,000 people is “limited,” but whether Congress

provided a sufficiently intelligible principle to ensure

that the Attorney General is executing Congress’s will,

not her own. On that question, the Second Circuit and

other courts of appeals have suggested that the mere

existence of a detailed statutory regime to govern postAct offenders supplies an intelligible principle for

deciding whether SORNA should apply to pre-Act

offenders. See J.A. 108; see also United States v.

Cooper, 750 F.3d 263, 272 (3d Cir. 2014); United States

v. Ambert, 561 F.3d 1202, 1214 (11th Cir. 2009).

This is wrong because the Attorney General was

given plenary authority to decide whether SORNA’s

requirements even apply to pre-Act offenders. And if

the Attorney General decides to compel pre-Act

offenders to register, there is no statutory directive

that she apply the same terms to pre-Act offenders as

to post-Act offenders (or even apply the same terms to

all pre-Act offenders). See Reynolds v. United States,

565 U.S. 432, 440 (2012) (delegation appears to permit

“different federal registration treatment of different

categories of pre-Act offenders”). Accordingly, rather

than cabining the Attorney General’s discretion,

Congress’s explicit guidance for post-Act offenders

starkly exposes the Attorney General’s wholly

unchecked power to devise a pre-Act regime and

prosecute anyone who violates it. See United States v.

Nichols, 784 F.3d 666, 675 (10th Cir. 2014) (Gorsuch,

J., dissenting from denial of reh’g en banc).

c. Courts of appeals besides the Second Circuit

have also sought an intelligible principle in SORNA’s

prefatory declaration of purpose, which states that the

Act seeks to establish a “comprehensive national

system for the registration of [sex] offenders” in order

“to protect the public,” 34 U.S.C. § 20901. See, e.g.,

United States v. Nichols, 775 F.3d 1225, 1231-32 (10th

Cir. 2014), rev’d on other grounds, 136 S. Ct. 1113

(2016); Cooper, 750 F.3d at 271-72; United States v.

Goodwin, 717 F.3d 511, 516-17 (7th Cir. 2013);

Ambert, 561 F.3d at 1213-14.

According to these courts, this declaration of

purpose shows that Congress meant to “provide the

broadest possible protection to the public” and that the

Attorney General was therefore instructed to require

the registration of pre-Act offenders “to the extent that

he determines it would contribute to the protection of

the public and the comprehensiveness of a national sex

offender registry.” Ambert, 561 F.3d at 1214. This

reasoning does not withstand scrutiny.

i. First, the Court has held that a general

declaration of statutory purpose, unmoored from the

specific powers being delegated, is not sufficient to

state an intelligible principle. In Panama Refining, for

example, the Court rejected the argument that vague

statements of statutory purpose, unconnected to the

particular legislative delegation at issue, were

sufficient. The statute in Panama Refining, like

SORNA, had an introductory statement expounding

the general purposes of the legislation. Panama

Refining, 203 U.S. at 416-17. However, the Court ruled

that this was not sufficient to state an intelligible

principle: “[T]his broad outline is simply an

introduction of the act, leaving the legislative policy as

to particular subjects to be declared and defined, if at

all, by the subsequent sections.” Id. at 417-18.

SORNA’s general statement of purpose is likewise

located in the Act’s preface; it is not tied to—and does

not refer to—the specific question of how the Attorney

General should treat pre-Act offenders. See 34 U.S.C.

§ 20901.

Moreover, if Congress had made a particular

policy choice with respect to pre-Act offenders—for

example, if it wanted SORNA to apply to all pre-Act

offenders—it easily could have said so. SORNA itself

contains other provisions that make specific and clear

delegations to the Attorney General. See, e.g., 34

U.S.C. § 20916(a) (“The Attorney General . . . shall

require that each sex offender provide . . . those

Internet identifiers the sex offender uses or will use of

any type that the Attorney General determines to be

appropriate under that Act.”). Thus, Congress knew

how to direct the Attorney General when it wanted to.

Congress’s failure to provide any guidance regarding

pre-Act offenders suggests that Congress simply

declined to make the hard policy choices about those

offenders, and instead passed them to the Attorney

General.

ii. Even if a freestanding general statement of

purpose could be enough in some circumstances to

provide an intelligible principle, SORNA’s statement

of purpose does not do so here.

First, the phrase “comprehensive national

system,” 34 U.S.C. § 20901, likely referenced SORNA’s

holistic approach to the administration and

enforcement of registration requirements, not some

unstated desire to extend the statute to cover some or

all pre-Act offenders. Through its various provisions,

SORNA established a new federal system to facilitate

the enforcement of jurisdictions’ registration schemes

and the sharing of registration information. See, e.g.,

id. § 20921 (creating the National Sex Offender

Registry compiling state data); id. § 20925

(commanding the Attorney General, in consultation

with states, to develop software to enable jurisdictions

to establish uniform registries and Internet sites); id.

§ 20941 (providing federal law enforcement resources

to assist states in locating and apprehending missing

state sex offenders). These provisions comprise the

“comprehensive national system” contemplated by

Congress; it is not clear how Congress felt about the

registration of pre-Act offenders merely because it

sought to establish a more comprehensive overall

system for future registration.

This Court has also repeatedly and consistently

rejected the contention that SORNA’s general, overall

purpose necessarily means that Congress intended the

statute to cover as many offenders as possible in every

situation (or otherwise controls the meaning of later

specific provisions). See Nichols, 136 S. Ct. at 1118-19

(rejecting Government’s argument that SORNA’s

purpose means it must be interpreted to cover

offenders who move abroad); Reynolds, 565 U.S. at 442

(rejecting Government’s argument that SORNA’s

purpose means the statute must be construed to cover

pre-Act offenders of its own force); Carr v. United

States, 560 U.S. 438, 443, 454-57 (2010) (rejecting

Government’s argument that SORNA’s purpose

requires construing its criminal provision to cover

offenders who traveled interstate before the Act’s

effective date). These decisions affirm that SORNA’s

general declaration of purpose does not control the

interpretation of its particular statutory provisions. In

the same way, it does not provide a discernable

restriction on the Attorney General’s power.

Congress’s goal of “protect[ing] the public,” 34

U.S.C. § 20901, is also not enough to provide an

intelligible principle. After all, every criminal statute

is designed to protect the public in some way. If that

ubiquitous purpose were enough to provide an

intelligible principle, Congress could simply transfer

to the Attorney General the authority to decide the

coverage of every criminal statute. The Founders

rejected such a notion. As James Madison explained:

“If nothing more were required, in exercising a

legislative trust, than a general conveyance of

authority—without laying down any precise rules by

which the authority conveyed should be carried into

effect—it would follow that the whole power of

legislation might be transferred by the legislature

from itself . . . .” James Madison, Madison’s Report on

the Virginia Resolutions (1800), in 4 The Debates in the

Several State Conventions on the Adoption of the

Federal Constitution 560 (J. Elliot ed., 1836).

Finally, even if Congress’s wish to protect people

via a “comprehensive national system” encompassed

some unexpressed desire to register a large number of

pre-Act offenders, it would still leave unanswered the

key policy question: how “comprehensive” is

comprehensive enough? 8 And at what cost? Congress

certainly did not want all sex offenders to have to

periods for post-Act offenders demonstrate. See 34

U.S.C. § 20915. But Congress did not offer any

guidance as to how the Attorney General should

balance this potential desire for expansive coverage

against other important policy concerns, such as the

burden retroactivity imposes on states.

As the Court recognized when it construed the

Comprehensive Criminal Control Act of 1984, “no

legislation pursues its purposes at all costs”: “Deciding

what competing values will or will not be sacrificed to

the achievement of a particular objective is the very

essence of legislative choice—and it frustrates rather

than effectuates legislative intent simplistically to

assume that whatever furthers the statute’s primary

objective must be the law.” Rodriguez v. United States,

480 U.S. 522, 525-26 (1987) (first emphasis added).

SORNA is replete with examples of compromises

with respect to the registration of post-Act offenders,

including the exemption of certain offenders and

For instance, to be “comprehensive,” does SORNA require

a tier II offender released in 1980 to register for another 25 years

after SORNA’s 2006 enactment, as one Attorney General

decided? Or is SORNA still “comprehensive” if that offender is

freed from SORNA’s registration requirements altogether, as a

different Attorney General later decided? That there is no answer

shows that the statute’s general declaration of purpose does not

suffice as an “intelligible principle.”

limited registration periods for some. The existence of

these compromises shows that Congress did not intend

SORNA’s registration requirements to apply to every

sex offender “always and in every particular without

exception or at any cost.” See Nichols, 784 F.3d at 675

(Gorsuch, J., dissenting from denial of reh’g en banc)

(collecting examples). Yet the statute delegates the

weighing of the various values at stake—the “very

essence of legislative choice”—without any guidance.

* * *

The power to decide if more than half a million

individuals are subject to government registration, on

penalty of prison, is an immense one. The Constitution

vests that power exclusively in Congress. But in

Section 20913(d) of SORNA, Congress improperly

transferred this legislative power to the Attorney

General without telling him how, or even whether, to

exercise it. The nondelegation doctrine thus requires

the Court to invalidate this statute. Doing so

will reaffirm basic separation-of-powers principles,

thereby protecting liberty, preserving democratic

accountability, and vindicating the rule of law.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Jeffrey L. Fisher

David T. Goldberg

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

May 25, 2018

Sarah Baumgartel

Counsel of Record

FEDERAL DEFENDERS OF

NEW YORK, INC.

Yuanchung Lee

Barry D. Leiwant

Edward S. Zas

52 Duane Street, 10th Fl.

New York, NY 10007

(212) 417-8772

sarah_baumgartel@fd.org

APPENDIX

United States Code Title 18

Crimes and Criminal Procedure

Part I. Crimes

Chapter 109B. Sex Offender and Crimes Against

Children Registry

18 U.S.C. § 2250. Failure to register

Effective: February 8, 2016

(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

registration 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.

(b) International

Whoever--

travel

reporting

violations.--

(1) is required to register under the Sex Offender

Registration and Notification Act (42 U.S.C. 16901

et seq.);

(2) knowingly fails to provide information required

by the Sex Offender Registration and Notification

Act relating to intended travel in foreign

commerce; and

(3) engages or attempts to engage in the intended

travel in foreign commerce;

shall be fined under this title, imprisoned not more

than 10 years, or both.

violation under subsection (a) or (b), it is an

affirmative defense that-(1) uncontrollable circumstances prevented the

individual from complying;

(2) the individual did not contribute to the

creation of such circumstances in reckless

disregard of the requirement to comply; and

(3) the individual complied as soon as such

circumstances ceased to exist.

(d) Crime of violence.-(1) In general.--An individual described in

subsection (a) or (b) who commits a crime of

violence 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 shall

be imprisoned for not less than 5 years and not

more than 30 years.

(2) Additional punishment.--The punishment

provided in paragraph (1) shall be in addition and

consecutive to the punishment provided for the

violation described in subsection (a) or (b).

Title 34. Crime Control and Law Enforcement

Subtitle II. Protection of Children and

Other Persons

Chapter 209. Child Protection and Safety

Subchapter I. Sex Offender Registration

and Notification

Effective: September 1, 2017

34 U.S.C. § 20901. Declaration of purpose

In order to protect the public from sex offenders and

offenders against children, and in response to the

vicious attacks by violent predators against the

victims listed below, Congress in this chapter

establishes a comprehensive national system for the

registration of those offenders . . . .

34 U.S.C. § 20911. Relevant definitions, including

Amie Zyla expansion of sex offender definition and

expanded inclusion of child predators

In this subchapter the following definitions apply:

(1) Sex offender:

The term “sex offender” means an individual who

was convicted of a sex offense.

(2) Tier I sex offender

The term “tier I sex offender” means a sex offender

other than a tier II or tier III sex offender.

(3) Tier II sex offender

The term “tier II sex offender” means a sex

offender other than a tier III sex offender whose

offense is punishable by imprisonment for more

than 1 year and-(A) is comparable to or more severe than the

following offenses, when committed against a

minor, or an attempt or conspiracy to commit

such an offense against a minor:

(i) sex trafficking (as described in section

1591 of Title 18);

(ii) coercion and enticement (as described

in section 2422(b) of Title 18);

(iii) transportation with intent to engage in

criminal sexual activity (as described in

section 2423(a)) of Title 18;

(iv) abusive sexual contact (as described

in section 2244 of Title 18);

(B) involves-(i) use of a minor in a sexual performance;

(ii) solicitation of

prostitution; or

minor

(iii) production or

pornography; or

distribution

practice

child

offender.

(4) Tier III sex offender

The term “tier III sex offender” means a sex

offender whose offense is punishable by

imprisonment for more than 1 year and--

(A) is comparable to or more severe than the

following offenses, or an attempt or conspiracy

to commit such an offense:

(i) aggravated sexual abuse or sexual abuse

(as described in sections 2241 and 2242 of

Title 18); or

(ii) abusive sexual contact (as described

in section 2244 of Title 18) against a minor

who has not attained the age of 13 years;

(B) involves kidnapping of a minor (unless

committed by a parent or guardian); or

sex offender.

(5) Amie Zyla expansion of sex offense definition

(A) Generally

Except as limited by subparagraph (B) or (C),

the term “ sex offense” means-(i) a criminal offense that has an element

involving a sexual act or sexual contact with

another;

(ii) a criminal offense that is a specified

offense against a minor;

(iii) a Federal offense (including an offense

prosecuted under section 1152 or 1153 of

Title 18) under section 1591, or chapter 109A,

110 (other than section 2257, 2257A, or

2258), or 117, of Title 18;

(iv) a military offense specified by the

Secretary of Defense under section

115(a)(8)(C)(i) of Public Law 105-119 (10

U.S.C. 951); or

(v) an attempt or conspiracy to commit an

offense described in clauses (i) through (iv).

(B) Foreign convictions

A foreign conviction is not a sex offense for the

purposes of this subchapter if it was not

obtained with sufficient safeguards for

fundamental fairness and due process for the

accused under guidelines or regulations

established under section 20912 of this title.

conduct

involving

consensual

sexual

An offense involving consensual sexual conduct

is not a sex offense for the purposes of this

subchapter if the victim was an adult, unless

the adult was under the custodial authority of

the offender at the time of the offense, or if the

victim was at least 13 years old and the offender

was not more than 4 years older than the victim.

(6) Criminal offense

The term “criminal offense” means a State, local,

tribal, foreign, or military offense (to the extent

specified by the Secretary of Defense under section

115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C.

951 note)) or other criminal offense.

(7) Expansion of definition of “specified offense

against a minor” to include all offenses by child

predators

The term “specified offense against a minor”

means an offense against a minor that involves

any of the following:

(A) An offense (unless committed by a parent or

guardian) involving kidnapping.

(B) An offense (unless committed by a parent or

guardian) involving false imprisonment.

(D) Use in a sexual performance.

(E) Solicitation to practice prostitution.

(F) Video voyeurism as described in section

1801 of Title 18.

(G) Possession, production, or distribution of

child pornography.

(H) Criminal sexual conduct involving a minor,

or the use of the Internet to facilitate or attempt

such conduct.

(I) Any conduct that by its nature is a sex

offense against a minor.

(8) Convicted as including certain juvenile

adjudications

The term “convicted” or a variant thereof, used

with respect to a sex offense, includes adjudicated

delinquent as a juvenile for that offense, but only

if the offender is 14 years of age or older at the time

of the offense and the offense adjudicated was

comparable to or more severe than aggravated

sexual abuse (as described in section 2241 of Title

18), or was an attempt or conspiracy to commit

such an offense.

(9) Sex offender registry

The term “sex offender registry” means a registry

of sex offenders, and a notification program,

maintained by a jurisdiction.

(10) Jurisdiction

The term “jurisdiction” means any of the following:

(A) A State.

(B) The District of Columbia.

(D) Guam.

(E) American Samoa.

(F) The Northern Mariana Islands.

(G) The United States Virgin Islands.

(H) To the extent provided and subject to the

requirements of section 20929 of this title, a

federally recognized Indian tribe.

(11) Student

The term “student” means an individual who

enrolls in or attends an educational institution,

including (whether public or private) a secondary

school, trade or professional school, and institution

of higher education.

(12) Employee

The term “employee” includes an individual who is

self-employed or works for any other entity,

whether compensated or not.

(13) Resides

The term “resides” means, with respect to an

individual, the location of the individual's home or

other place where the individual habitually lives.

(14) Minor

The term “minor” means an individual who has not

attained the age of 18 years.

34 U.S.C. § 20913. Registry requirements for sex

offenders

(a) In general

A sex offender 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. For initial registration

purposes 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 the offense giving rise to the

registration requirement; or

10a

(2) not later than 3 business days after being

sentenced for that offense, if the sex offender is not

sentenced to a term of imprisonment.

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

jurisdiction involved pursuant to subsection (a) and

inform that jurisdiction of all changes in the

information required for that offender in the sex

offender registry. That jurisdiction shall immediately

provide that information to all other jurisdictions in

which the offender 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

enactment 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 recognized

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.

11a

34 U.S.C. § 20914. Information required

in registration

(a) Provided by the offender

The sex offender shall provide the following

information to the appropriate official for inclusion in

the sex offender registry:

(1) The name of the sex offender (including any

alias used by the individual).

(2) The Social Security number of the sex offender.

(3) The address of each residence at which the sex

offender resides or will reside.

(4) The name and address of any place where the

sex offender is an employee or will be an employee.

(5) The name and address of any place where the

sex offender is a student or will be a student.

(6) The license plate number and a description of

any vehicle owned or operated by the sex offender.

(7) Information relating to intended travel of the

sex offender outside the United States, including

any anticipated dates and places of departure,

arrival, or return, carrier and flight numbers for

air travel, destination country and address or

other contact information therein, means and

purpose of travel, and any other itinerary or other

travel-related information required by the

Attorney General.

(8) Any other information required by the Attorney

General.

12a

(b) Provided by the jurisdiction

The jurisdiction in which the sex offender registers

shall ensure that the following information is included

in the registry for that sex offender:

(1) A physical description of the sex offender.

(2) The text of the provision of law defining the

criminal offense for which the sex offender is

registered.

(3) The criminal history of the sex offender,

including the date of all arrests and convictions;

the status of parole, probation, or supervised

release; registration status; and the existence of

any outstanding arrest warrants for the sex

offender.

(4) A current photograph of the sex offender.

(5) A set of fingerprints and palm prints of the sex

offender.

(6) A DNA sample of the sex offender.

(7) A photocopy of a valid driver's license or

identification card issued to the sex offender by a

jurisdiction.

(8) Any other information required by the Attorney

General.

A sex offender shall provide and update information

required under subsection (a), including information

relating to intended travel outside the United States

required under paragraph (7) of that subsection, in

conformity with any time and manner requirements

prescribed by the Attorney General.

13a

34 U.S.C. § 20915. Duration of registration

requirement

(a) Full registration period

A sex offender shall keep the registration current for

the full registration period (excluding any time the sex

offender is in custody or civilly committed) unless the

offender is allowed a reduction under subsection (b).

The full registration period is-(1) 15 years, if the offender is a tier I sex offender;

(2) 25 years, if the offender is a tier II sex offender;

and

(3) the life of the offender, if the offender is a tier

III sex offender.

(b) Reduced period for clean record

(1) Clean record

The full registration period shall be reduced as

described in paragraph (3) for a sex offender who

maintains a clean record for the period described

in paragraph (2) by-(A) not being convicted of any offense for which

imprisonment for more than 1 year may be

imposed;

(B) not being convicted of any sex offense;

supervised release, probation, and parole; and

(D) successfully completing of an appropriate

sex offender treatment program certified by a

jurisdiction or by the Attorney General.

14a

(2) Period

In the case of-(A) a tier I sex offender, the period during which

the clean record shall be maintained is 10 years;

and

(B) a tier III sex offender adjudicated delinquent

for the offense which required registration in a

sex registry under this subchapter, the period

during which the clean record shall be

maintained is 25 years.

(3) Reduction

In the case of-(A) a tier I sex offender, the reduction is 5 years;

(B) a tier III sex offender adjudicated

delinquent, the reduction is from life to that

period for which the clean record under

paragraph (2) is maintained.

34 U.S.C. § 20916. Direction to the Attorney

General

(a) Requirement that sex offenders provide certain

Internet related information to sex offender

registries

The Attorney General, using the authority provided in

section 114(a)(7) of the Sex Offender Registration and

Notification Act, shall require that each sex offender

provide to the sex offender registry those Internet

identifiers the sex offender uses or will use of any type

that the Attorney General determines to be

appropriate under that Act. These records of Internet

15a

identifiers shall be subject to the Privacy Act (5 U.S.C.

552a) to the same extent as the other records in the

National Sex Offender Registry.

(b) Timeliness of reporting of information

The Attorney General, using the authority provided in

section 112(b) of the Sex Offender Registration and

Notification Act, shall specify the time and manner for

keeping current information required to be provided

under this section.

The Attorney General, using the authority provided in

section 118(b)(4) of the Sex Offender Registration and

Notification Act, shall exempt from disclosure all

information provided by a sex offender under

subsection (a).

(d) Notice to sex offenders of new requirements

The Attorney General shall ensure that procedures are

in place to notify each sex offender of changes in

requirements that apply to that sex offender as a

result of the implementation of this section.

(e) Definitions

(1) Of “social networking website”

As used in this Act, the term “social networking

website”-(A) means an Internet website-(i) that allows users, through the creation of

web pages or profiles or by other means, to

provide information about themselves that is

available to the public or to other users; and

16a

(ii)

that

offers

mechanism

for

communication with other users where such

users are likely to include a substantial

number of minors; and

(iii) whose primary purpose is to facilitate

online social interactions; and

(B) includes any contractors or agents used by

the website to act on behalf of the website in

carrying out the purposes of this Act.

(2) Of “Internet identifiers”

As used in this Act, the term “Internet identifiers”

means electronic mail addresses and other

designations used for self-identification or routing

in Internet communication or posting.

(3) Other terms

A term defined for the purposes of the Sex

Offender Registration and Notification Act has the

same meaning in this Act.

34 U.S.C. § 20918. Periodic in person verification

A sex offender shall appear in person, allow the

jurisdiction to take a current photograph, and

verify the information in each registry in which

that offender is required to be registered not less

frequently than-(1) each year, if the offender is a tier I sex offender;

(2) every 6 months, if the offender is a tier II sex

offender; and

17a

(3) every 3 months, if the offender is a tier III sex

offender.

34 U.S.C. § 20921. National Sex Offender Registry

(a) Internet

The Attorney General shall maintain a national

database at the Federal Bureau of Investigation for

each sex offender and any other person required to

database shall be known as the National Sex Offender

Registry.

(b) Electronic forwarding

The Attorney General shall ensure (through the

National Sex Offender Registry or otherwise) that

updated information about a sex offender is

immediately transmitted by electronic forwarding to

all relevant jurisdictions.

34 U.S.C. § 20925. Development and availability of

registry management and website software

(a) Duty to develop and support

The Attorney General shall, in consultation with the

jurisdictions, develop and support software to enable

jurisdictions to establish and operate uniform sex

offender registries and Internet sites.

(b) Criteria

The software should facilitate--

18a

(1) immediate exchange of information among

jurisdictions;

(2) public access over the Internet to appropriate

information, including the number of registered

sex offenders in each jurisdiction on a current

basis;

(3) full compliance with the requirements of this

subchapter; and

(4) communication of information to community

notification program participants as required

under section 20923 of this title.

The Attorney General shall make the first complete

edition of this software available to jurisdictions

within 2 years of July 27, 2006.

34 U.S.C. § 20926. Period for implementation by

jurisdictions

(a) Deadline

Each jurisdiction shall implement this subchapter

before the later of-(1) 3 years after July 27, 2006; and

(2) 1 year after the date on which the software

described in section 20925 of this title is available.

(b) Extensions

The Attorney General may authorize up to two 1-year

extensions of the deadline.

19a

34 U.S.C. § 20927. Failure of jurisdiction to

comply

(a) In general

For any fiscal year after the end of the period for

implementation, a jurisdiction that fails, as

determined by the Attorney General, to substantially

implement this subchapter shall not receive 10 percent

of the funds that would otherwise be allocated for that

fiscal year to the jurisdiction under subpart 1 of part E

of title I of the Omnibus Crime Control and Safe

Streets Act of 1968 (42 U.S.C. 3750 et seq.).

34 U.S.C. § 20941. Federal assistance with respect

to violations of registration requirements

(a) In general

The Attorney General shall use the resources of

Federal law enforcement, including the United States

Marshals Service, to assist jurisdictions in locating

and apprehending sex offenders who violate sex

offender registration requirements. For the purposes

of section 566(e)(1)(B) of Title 28, a sex offender who

violates a sex offender registration requirement shall

be deemed a fugitive.

(b) Authorization of appropriations

There are authorized to be appropriated such sums as

may be necessary for fiscal years 2007 through 2009 to

implement this section.

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