Amicus Curiae Brief — Herman Avery Gundy, Petitioner v. United States

No. 17-6086

In the Supreme Court of the United States

_____________

HERMAN AVERY GUNDY, PETITIONER

v.

UNITED STATES OF AMERICA

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_____________

BRIEF OF THE NEW CIVIL LIBERTIES

ALLIANCE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_____________

PHILIP HAMBURGER

MARK CHENOWETH

MARGARET A. LITTLE

New Civil Liberties Alliance

P.O. Box 19005

Washington, DC 20036-9005

(202) 830-1434

JONATHAN F. MITCHELL

Counsel of Record

559 Nathan Abbott Way

Stanford, California 94305

(650) 723-1397

jfmitche@stanford.edu

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................... i

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

INTEREST OF AMICUS .................................................... 1

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ................. 2

SUMMARY OF ARGUMENT ............................................ 4

ARGUMENT .......................................................................... 5

I. CONGRESS MAY NOT DIVEST ITSELF OF THE

POWER THAT THE CONSTITUTION VESTS

IN IT ............................................................................. 5

A. The Court Should Abandon the

Misleading Term “Delegation” .......................... 5

1. “Delegation” Falsely Implies an

Easily Revocable Transfer ........................... 6

2. The Court Should Employ the

Constitution’s Terminology and

Should Therefore Conclude that

Congress Has “Divested” Itself of

Legislative Power........................................... 7

B. The Court Should Repudiate the Three

Main Legal Fictions that Have

Sustained Congress’s Divestiture of

(i)

Lawmaking Powers to Executive

Departments and Agencies .............................. 10

C. Divesting Legislative Power also Evades

Bicameralism and Presentment ...................... 15

II. SECTION 20913(d) FAILS TO SUPPLY AN

“INTELLIGIBLE PRINCIPLE,” AS REQUIRED

BY THE PRECEDENTS OF THIS COURT ................... 16

A. SORNA Fails the Nondelegation Tests

Enunciated in Schechter Poultry and

Panama Refining .............................................. 17

B. The Court Should Reinvigorate the

“Intelligible Principle” Requirement If

It Will Not Reject It as a Legal Fiction ......... 21

III. SECTION

20913(d)

VIOLATES

THE

CONSTITUTION BY EMPOWERING THE

ATTORNEY GENERAL TO ACT AS BOTH

LAWMAKER AND LAW ENFORCER.......................... 22

A. SORNA Is Incompatible with the

Attorney General’s Duties ................................ 24

B. SORNA Revives the Constitutionally

Forbidden Suspending and Dispensing

Powers .................................................................. 27

IV. CONSTITUTIONAL

CONCERNS

ARE

ESPECIALLY GRAVE WHEN CONGRESS

DIVESTS ITSELF OF CRIMINAL LAWMAKING

POWERS ...................................................................... 29

(ii)

V. THE

COURT

MAY

REMEDY

THE

CONSTITUTIONAL VIOLATIONS BY JUST

INVALIDATING THE ATTORNEY GENERAL’S

RULE ........................................................................... 32

CONCLUSION ..................................................................... 35

(iii)

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corporation v. United

States, 295 U.S. 495 (1935) ..................................17, 18, 32

Batterton v. Francis, 432 U.S. 416 (1977)......................... 12

Blakely v. Washington, 542 U.S. 296 (2004) ..................... 30

Blodgett v. Holden, 275 U.S. 142 (1927) ............................ 33

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).................. 12

Clinton v. City of New York, 524 U.S. 417 (1998) ............ 33

Graham Cty. Soil & Water Conservation Dist. v.

U.S. ex rel. Wilson, 559 U.S. 280 (2010)........................ 12

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ........................................................... 12

I.N.S. v. Chadha, 462 U.S. 919 (1983) ................................ 14

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....... 20

Marshall Field & Co. v. Clark, 143 U.S. 649 (1892) ........ 16

Myers v. United States, 272 U.S. 52 (1926) .................. 8, 10

National Broadcasting Co. v. United States,

319 U.S. 190 (1943) ........................................................... 21

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ..................................................... 19, 32

United States v. Grimaud, 220 U.S. 506 (1911) ............... 13

United States v. Morrison, 529 U.S. 598 (2000) .............. 33

United States v. Stock, 685 F.3d 621 (6th Cir. 2012) ........ 14

Statutes

18 U.S.C. § 2250(a) ................................................................ 29

34 U.S.C. § 20913(d)..................................................... passim

Act of Congress of July 12, 1876, 19 Stat. 80.................... 10

(iv)

Other Authorities

Jesse H. Choper, Judicial Review and the

National Political Process (1980).................................. 20

The Federalist (Liberty Fund ed. 2001) ............................ 15

Philip Hamburger, Is Administrative Law

Unlawful? (U. Chicago Press 2014) ....................9, 23, 27

Philip Hamburger, Law and Judicial Duty

(Harvard U. Press 2008) ................................................. 24

James M. Landis, The Administrative

Process (1966) .................................................................... 11

James Madison, 4 The Debates in the Several State

Conventions on the Adoption of the Federal

Constitution (Jonathan Elliot ed., 2d ed., 1836) ......... 32

Montesquieu, The Spirit of the Laws (1748) .................... 23

Eric A. Posner and Adrian Vermeule, Interring the

Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721

(2002) ................................................................................... 11

David Schoenbrod, Power Without Responsibility

(Yale U. Press 1993)............................................. 13, 15–16

Cass R. Sunstein, Is the Clean Air Act

Unconstitutional?, 98 Mich. L. Rev. 303 (1999) .......... 18

Rules

28 C.F.R. § 72.3 ........................................................................ 4

Constitutional Provisions

Md. Decl. of Rights, Art. 9................................................... 28

U.S. Const. art. I, § 1 ....................................................passim

U.S. Const. art. I, § 7 .............................................................. 6

U.S. Const. art. I, § 9 ............................................................ 28

(v)

U.S. Const. art. II, § 2 .......................................................... 24

U.S. Const. art. II, § 3 .......................................................... 24

(vi)

In the Supreme Court of the United States

_____________

No. 17-6086

HERMAN AVERY GUNDY, PETITIONER

v.

UNITED STATES OF AMERICA

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_____________

BRIEF OF THE NEW CIVIL LIBERTIES

ALLIANCE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_____________

INTEREST OF AMICUS 1

The New Civil Liberties Alliance (NCLA) is a nonprofit, public-interest law firm founded to challenge multiple constitutional defects in the modern administrative

state through original litigation, amicus curiae briefs, and

other means. The “civil liberties” of the organization’s

name include rights at least as old as the U.S. Constitution

itself, such as jury trial, due process of law, the right to be

1.

All parties consented to the filing of this brief. No counsel for a

party authored any part of this brief. And no one other than the

amicus curiae, its members, or its counsel financed the preparation or submission of this brief.

(1)

2

tried in front of an impartial and independent judge, and

the right to have laws made by the nation’s elected lawmakers through constitutionally prescribed channels rather than by prosecutors or judges taking illicit unconstitutional shortcuts. Yet these selfsame civil rights are also

very contemporary — and in dire need of renewed vindication — precisely because Congress, the Department of

Justice, and federal administrative agencies have trampled them for so long.

NCLA aims to defend civil liberties — primarily by asserting constitutional constraints on the administrative

state. Although Americans still enjoy the shell of their Republic, there has developed within it a very different sort

of government — a type, in fact, that the Constitution was

designed to prevent. This unconstitutional state within

the Constitution’s United States is the focus of NCLA’s

concern. NCLA is particularly disturbed that a series of

Attorneys General has accepted a divestiture of legislative power from Congress. They have then enforced criminal sanctions against offenders like Mr. Gundy based on

the “laws” those same Attorneys General have created —

all in blatant violation of those offenders’ constitutional

liberties.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. art. I, § 1: “All legislative Powers herein

granted shall be vested in a Congress of the United

States.”

U.S. Const. art. II, § 2: “The President . . . may require the Opinion, in writing, of the principal Officer in

3

each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

U.S. Const. art. II, § 3: “[The President] shall take

Care that the Laws be faithfully executed.”

34 U.S.C. § 20913(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).”

28 C.F.R. § 72.3: “Applicability of the Sex Offender

Registration and Notification Act. The requirements of

the Sex Offender Registration and Notification Act apply

to all sex offenders, including sex offenders convicted of

the offense for which registration is required prior to the

enactment of that Act.

“Example 1. A sex offender is federally convicted of

aggravated sexual abuse under 18 U.S.C. 2241 in 1990 and

is released following imprisonment in 2007. The sex offender is subject to the requirements of the Sex Offender

Registration and Notification Act and could be held criminally liable under 18 U.S.C. 2250 for failing to register or

keep the registration current in any jurisdiction in which

the sex offender resides, is an employee, or is a student.

“Example 2. A sex offender is convicted by a state jurisdiction in 1997 for molesting a child and is released following imprisonment in 2000. The sex offender initially

registers as required but relocates to another state in

4

2009 and fails to register in the new state of residence. The

sex offender has violated the requirement under the Sex

Offender Registration and Notification Act to register in

any jurisdiction in which he resides, and could be held

criminally liable under 18 U.S.C. 2250 for the violation because he traveled in interstate commerce.”

SUMMARY OF ARGUMENT

The judgment of the court of appeals should be reversed for four separate and independent reasons. First,

34 U.S.C. § 20913(d) violates the Constitution by divesting

Congress of legislative powers and transferring those

powers to the Attorney General. Second, § 20913(d) fails

to provide an “intelligible principle” to guide the Attorney

General’s discretion, as current doctrine of this Court requires. Third, the Constitution does not allow the Attorney General to simultaneously create and execute a rule

like 28 C.F.R. § 72.3 that he is charged with enforcing.

Fourth, the Constitution does not permit criminal offenses to be defined in administrative rules rather than

statutes.

The vesting clauses of Articles I, II, and III protect

the civil liberties of Americans by separating the constituent parts of the power to punish criminally. They ensure

that no defendant can be imprisoned for committing a federal crime unless the legislature has first defined the

crime, and all three branches of government have played

their part in determining criminal culpability for an offense.

This Court should declare the underlying statute unconstitutional if it agrees with Gundy’s constitutional arguments. But it is also important to note that the Court

5

could also or instead take the more modest step of invalidating the Attorney General’s rule as an unconstitutional

executive exercise of legislative power — regardless of

whether an Act of Congress purported to authorize this

rule.

ARGUMENT

I. C ONGRESS M AY N OT D IVEST I TSELF OF THE

P OWER THAT THE C ONSTITUTION V ESTS IN I T

Mr. Gundy complains that § 20913(d) violates the

“nondelegation doctrine,” but that phrase is a misnomer

and we urge the Court to abandon it. We also respectfully

urge the Court to repudiate the legal fictions that have

long sustained statutes that purport to confer lawmaking

prerogatives on executive and agency officials. Although

§ 20913(d) is unconstitutional even under the Court’s existing doctrine, this Court should put aside the nondelegation doctrine and its associated legal fictions.

Once the nondelegation doctrine and the associated legal fictions are left aside, it becomes clear that § 20913(d)

is unconstitutional. Congress may not divest itself of legislative power — most basically because the Constitution

vests this power in Congress, but also because Congress

may not evade bicameralism and presentment.

A. The Court Should Abandon the Misleading

Term “Delegation”

The doctrine upon which certiorari has been granted

has appeared under the names of “nondelegation doctrine,” “delegation doctrine,” and “anti-delegation

6

doctrine” over the years. The Court should discard those

terms for two separate and independent reasons.

First, it is imprecise and misleading to describe a statute that transfers lawmaking powers to the executive as a

congressional “delegation” of authority. Second, the

phrase “nondelegation doctrine” misleadingly implies

that the limitations on executive-branch lawmaking are

rooted in a court-created doctrine rather than the text of

the Constitution.

1. “Delegation” Falsely Implies an Easily

Revocable Transfer

When a political or governmental entity “delegates”

its powers, it always retains the authority to unilaterally

revoke its delegation. A cabinet secretary, for example,

who “delegates” statutorily authorized powers to his subordinates has the right to terminate that arrangement at

any time, for any reason, and without any need to secure

the assent of the delegatee or any other person or institution.

That is not the case when a statute purports to confer

lawmaking powers on executive or agency officials. Although Congress may revoke this arrangement, it may do

so only by repealing or amending the statute through the

bicameralism-and-presentment process of Article I, § 7.

The President is empowered to veto any effort to withdraw powers that a statute vests in the executive, so Congress cannot unilaterally revoke a transfer of authority

that a predecessor Congress made via statute. Congress

must obtain the President’s assent, or it must secure vetoproof supermajorities in both houses of Congress, before

any previous transfer of authority can be undone.

7

A statutory transfer of lawmaking power to the executive thus ties the hands of Congress. When Congress by

statute transfers legislative power to the executive, it cannot recall the transferred power easily. A statutory transfer of legislative power does not merely delegate legislative power, for it limits Congress’s freedom to reassert its

legislative powers.

Indeed, it is widely accepted that one Congress cannot

bind a future Congress except by passing a statute (or ratifying a treaty). So, for example, neither House of Congress can pass a rule that forces a future Congress to follow certain procedures. Yet permitting delegation to the

executive allows this forbidden outcome. By transferring

legislative power to an executive or agency official like the

Attorney General, a current Congress can get that official

to enact rules without going through bicameralism and

presentment — policies that a future Congress cannot reverse without taking those difficult steps.

2. The

Court

Should

Employ

the

Constitution’s Terminology and Should

Therefore Conclude that Congress Has

“Divested” Itself of Legislative Power

Article I, § 1 makes clear: “All legislative Powers

herein granted shall be vested in a Congress of the United

States.” Statutes that divest Congress of these legislative

powers by conferring them upon executive or agency officials are violating the Constitution itself — not mere judicial “doctrine” or precedents. Using the term “nondelegation doctrine” both misdescribes and understates the

problem with statutes that give lawmaking powers to

agency officials, and the widespread use of this

8

nomenclature stacks the deck in favor of administrative

power and against the judicial enforcement of Article I’s

vesting clause.

Instead of addressing whether § 20913(d) violates the

“nondelegation doctrine,” the Court should ask whether

§ 20913(d) contravenes Article I’s vesting clause, which

vests “[a]ll legislative powers” in Congress and not other

parts of government. The Court’s terminology should be

no different from the language it employs when discussing statutes that impermissibly transfer Article II powers

from the President to Congress. When Myers v. United

States, 272 U.S. 52 (1926), disapproved a federal statute

that forbade the President from removing executive officers without the advice and consent of the Senate, it declared that the statute contravened the vesting and takecare clauses in Article II, not some court-created “nonarrogation doctrine.” See Myers v. United States, 272 U.S.

52, 163–64 (1926) (“[A]rticle 2 grants to the President the

executive power of the government — i.e., the general administrative control of those executing the laws, including

the power of appointment and removal of executive officers . . . [A]rticle 2 excludes the exercise of legislative

power by Congress to provide for appointments and removals, except only as granted therein to Congress in the

matter of inferior offices”); id. at 164 (“[T]o hold otherwise would make it impossible for the President, in case

of political or other difference with the Senate or Congress, to take care that the laws be faithfully executed.”).

The text of the Constitution similarly forbids arrangements that transfer legislative powers from Congress to

the executive. A statute cannot reallocate authority that

9

the Constitution itself has established — regardless of

whether the statute is moving executive powers into the

legislature or legislative powers into the executive — and

statutes that improperly allocate powers among the

branches offend the command of the relevant vesting

clause, rather than a mere judicial “doctrine” or precedent.

In fact, the Constitution’s text is especially clear in forbidding the divestiture of legislative powers — as evident

from Article I’s first substantive word. The article begins:

“All legislative Powers herein granted shall be vested in a

Congress.” If all legislative powers are vested in Congress, they may not be assigned elsewhere. If the grant

were merely permissive, not exclusive, there would be no

reason for the word “All.”2 That word bars any divesting

of legislative power.

When a statute transfers legislative powers to the executive (as in this case) — or when a statute transfers executive powers to the legislature (as in Myers) — it is

2.

The use of the word “All” in Article I is unique. In articles II and

III when granting executive or judicial power, the Constitution

does not employ the word “all.” Article II states, “The executive

Power shall be vested in a President of the United States of

America” and proceeds to provide for the appointment of officers

to assist in the administration of executive power. Similarly, Article III contemplates a hierarchical grant of the judicial power

which “shall be vested in one supreme Court, and in such inferior

Courts as the Congress may … ordain and establish.” By omitting the word “all” in Articles II and III, the Constitution permits

the allocation of executive power not only to the President but

also to his appointed executive officers, and it enables the judicial

power to extend to inferior courts. Cf. P. Hamburger, Is Administrative Law Unlawful? 387–88 (U. Chicago Press 2014).

10

“divesting” rather than “delegating” the powers that the

Constitution vests in a specific branch of the government.

No one would say that President Grant “delegated” his

removal powers to the Senate when he signed the law that

forbade the removal of postmasters without Senate consent. See Act of Congress of July 12, 1876, 19 Stat. 80, 81,

declared unconstitutional in Myers, 272 U.S. at 107. That

is because neither President Grant (nor his successors)

could have rescinded this divestiture of presidential

power without first persuading Congress to repeal or

amend the earlier statute. It is equally misleading to say

that Congress has “delegated” its powers by enacting

statutes that it cannot revoke without securing the President’s assent or overriding his veto.

Article I vests the legislative power in Congress, and

statutes that confer these powers on executive or agency

officials contravene Article I by “divesting” Congress of

its powers and assigning them to other institutions. The

Court should eschew its previous “nondelegation” verbiage and use terminology that mirrors what the Constitution says: Legislative powers are “vested” in Congress,

and statutes that contradict this command improperly

“divest” Congress of Article I powers.

B. The Court Should Repudiate the Three Main

Legal Fictions that Have Sustained Congress’s

Divestiture of Lawmaking Powers to Executive

Departments and Agencies

For far too long the administrative state has been sustained by the notion that agencies may impose “rules”

that carry the force of law — and that act as the functional

equivalent of statutes — so long as the agency can point to

11

a statute that authorizes (or that could be reasonably construed to authorize) the practice of agency lawmaking. At

the same time, this Court, along with academic commentators, has nurtured and championed a series of legal fictions that deny the reality of agency lawmaking and

thereby give a patina of constitutional legitimacy to this

practice. The fictitious character of these three ideas

makes them poor excuses for Congress’s attempt to divest

itself of power that the Constitution vested uniquely in it.

We respectfully ask the Court to reconsider — or at least

call into question — the most commonly invoked fictions

that are used to justify rule by administrative agencies.

The first fictitious idea is that agencies are “executing” the law whenever they regulate pursuant to congressional authorization — even when the underlying statute

empowers the agency to enact formal rules that carry the

force of a congressionally enacted statute, and even when

it gives the agency vast discretion to choose the rules that

will be enacted. See, e.g., Eric A. Posner and Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi.

L. Rev. 1721, 1723 (2002) (“[A]gents acting within the

terms of such a statutory grant are exercising executive

power, not legislative power.”). Not even James Landis,

the leading expositor and defender of administrative

power during the twentieth century, believed this fiction.

Landis wrote that “[i]t is obvious that the resort to the administrative process is not, as some suppose, simply an

extension of executive power” and that “[c]onfused observers have sought to liken this development to a pervasive use of executive power.” James M. Landis, The Administrative Process 15 (1966).

12

Landis is right. The notion that an agency is merely

“executing” the law when it is choosing policies and imposing those policy choices in the form of codified rules is

a transparent fiction and is incompatible with the jurisprudence of this Court. Agencies act as lawmakers when

issuing rules that bind the public, which is why courts and

commentators describe their work product as “legislative

rules.” See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281,

302 (1979) (“We described a substantive rule — or a ‘legislative-type rule’ — as one ‘affecting individual rights and

obligations.’” (citation omitted)); Batterton v. Francis, 432

U.S. 416, 425 n. 9 (1977) (“Legislative, or substantive, regulations are issued by an agency pursuant to statutory authority. … Such rules have the force and effect of law.”

(citation and internal quotation marks omitted)); Kenneth

Culp Davis, 2 Administrative Law Treatise § 7:8 at 36 (2d

ed. 1979) (“A legislative rule is the product of an exercise

of delegated legislative power to make law through rules.

… [V]alid legislative rules have about the same effect as

valid statutes; they are binding on courts.”).

This Court describes an agency’s rulemaking and adjudicatory powers not as “executive” but as “quasi-legislative” and “quasi-judicial.” See, e.g., Graham Cty. Soil &

Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S.

280, 290 (2010) (describing agency rulemaking as “legislative or quasi-legislative activities.”); Humphrey’s Executor v. United States, 295 U.S. 602, 628 (1935). Indeed, this

Court would not be able to characterize agency rulemaking as purely “executive” without overruling Humphrey’s

Executor and requiring all agency officials with rulemaking powers to be placed under presidential control.

13

The second fiction is the idea that agency lawmaking

is merely “specifying” or “filling in the details” of a statutory standard that cannot be written in advance to account for all contingencies. See, e.g., United States v. Grimaud, 220 U.S. 506, 517 (1911) (“[W]hen Congress had

legislated and indicated its will, it could give to those who

were to act under such general provisions ‘power to fill up

the details’ by the establishment of administrative rules

and regulations”). But even where authorizing statutes offer governing standards, the authorized agencies are not

merely specifying or filling in details. As is widely understood, such statutes typically leave the most difficult legislative questions to the agencies — indeed, members of

Congress notoriously use such statutes precisely to avoid

making difficult legislative decisions. See D. Schoenbrod,

Power Without Responsibility, 9–19, 55–59, 72–94, 102–

05, 157–59 (Yale U. Press 1993).

The notion of specification is especially fictitious here

because § 20913(d) does not even provide a governing

standard for the Attorney General to “specify.” The statute anticipates the issues of applying SORNA’s registration requirements to pre-SORNA offenders and its implementation in any particular jurisdiction, but then it gives

the Attorney General carte blanche to decide what — if

anything — should be done about these questions. The Attorney General is not “specifying” or “filling in the details” of anything except his own druthers.

Congress divested these quintessentially political

choices to a prosecutorial entity with very different institutional interests. Unsurprisingly, the Attorney General

answered both questions in a way that maximized his own

14

enforcement authority — reaching convictions finalized

before SORNA’s enactment, whether or not a state chose

to require registration. See United States v. Stock, 685

F.3d 621, 626 (6th Cir. 2012) (the obligation to register “exists whether or not a state chooses to implement SORNA’s

requirements and whether or not a state chooses to register sex offenders at all”). But legislative power is vested

in the Congress precisely because it is politically accountable. See I.N.S. v. Chadha, 462 U.S. 919, 966 (1983) (Powell, J., concurring) (“The only effective constraint on Congress’ power is political[.]”). In this way, Congress shirked

the toughest aspect of lawmaking while avoiding entirely

its primary constitutional limit. These are hardly “details.”

The third and final fiction is the idea that an agency

cannot be involved in lawmaking if Congress has provided

an “intelligible principle” to inform the agency’s discretion. Acts of lawmaking and legislation do not depend on

whether or not some other entity has supplied an “intelligible principle” that purports to guide the legislative decision. Every act of Congress, for example, is guided and

controlled by an “intelligible principle” supplied by the

enumerated-powers regime; Congress must always connect its statutes to one or more of those “intelligible principles” that define and limit what Congress may do. But

Congress is most assuredly “legislating” when it enacts

statutes, even though it does so pursuant to a grant of

power that limits and controls Congress with a series of

“intelligible principles.” The result is no different when an

agency issues an edict under a statute that confers powers

defined by an “intelligible principle” — such as an

15

instruction to “regulate in the public interest.” Every lawmaking entity holds powers that were authorized or

vested in it by somebody, and there is almost always some

semblance of an “intelligible principle” that defines the

boundaries of those powers. But that does not change the

legislative character of the resulting edict.

Rather than perpetuate these notorious fictions, this

Court should recognize that Congress has asked the Attorney General to exercise legislative power in its stead,

and he has complied — all in violation of the Constitution’s

vesting of legislative powers in Congress. The Court

should therefore reject the results of that bargain.

C. Divesting Legislative Power also

Bicameralism and Presentment

Evades

When this Court permits Congress to divest itself of

legislative power, it also weakens accountability to the

people by allowing an evasion of bicameralism and presentment. Bicameralism and presentment make lawmaking difficult by design. The Federalist No. 62, pp. 319–24

(J. Madison) and No. 63, pp. 325–32 (Liberty Fund ed.

2001). These requirements ensure that laws are made by

the two houses of Congress and are subject to the possibility of a veto. Responsibility thus lies in the two elected

legislative bodies and in an elected president — all of

whom are personally accountable to the people.

But when Congress divests itself of its legislative

power, “the people lose control over the laws that govern

them . . . . [T]he public loses the right to have both its

elected representatives and its elected president take

personal responsibility for the law.” D. Schoenbrod,

Power Without Responsibility 99, 105 (Yale U. Press

16

1993). Instead, only someone appointed by the president

takes responsibility — an appointee who is not personally

chosen by the public or accountable to them at the next

election.

In this very case, Congress was not able to obtain the

votes needed to apply SORNA to all prior sex offenders.

That provision was in the House bill, but it was in neither

the Senate bill nor the final bill that passed both houses.

By assigning the decision about retroactive application to

the Attorney General, SORNA led to adoption of a “law”

that could not and did not clear the bicameral hurdle.

This Court should abandon its nondelegation doctrine

and the attendant legal fictions. Having done this, it

should recognize that § 20913(d) is unconstitutional because the Constitution bars Congress from divesting itself

of legislative power and evading bicameralism and presentment.

II. S ECTION 20913(d) FAILS TO S UPPLY AN

“I NTELLIGIBLE P RINCIPLE ,” AS R EQUIRED BY

THE P RECEDENTS OF THIS C OURT

This Court has repeatedly affirmed that the Constitution forbids Congress from giving lawmaking powers to

executive or agency officials — even as the “nondelegation

doctrine” moniker has misdescribed and downplayed the

offense to the Constitution.

In Marshall Field & Co. v. Clark, 143 U.S. 649 (1892),

this Court observed:

That congress cannot delegate legislative power

to the president is a principle universally recognized as vital to the integrity and maintenance

17

of the system of government ordained by the

constitution.

Id. at 692. This Court has further held — repeatedly and

in an unbroken line of cases — that statutes that empower

the executive to act without supplying any standard to

guide his discretion, and without at least gesturing toward

a congressional policy goal that will inform the executive’s

use of this discretion, violate Article I’s vesting clause by

improperly conferring legislative power on executive or

agency officials.

A. SORNA Fails the Nondelegation Tests

Enunciated in Schechter Poultry and

Panama Refining

In A.L.A. Schechter Poultry Corporation v. United

States, 295 U.S. 495 (1935), the Court unanimously and

emphatically rejected a statutory scheme that empowered the President to impose “codes of fair competition”

whenever he made formal findings that the industry-proposed codes would not “promote monopolies” and that the

organizations proposing such codes were “truly representative” of the affected trade or industry. Id. at 522–23;

see also id. at 534 (“[T]he approval of a code by the President is conditioned on his finding that it ‘will tend to effectuate the policy of this title.’”). The Court quoted Article

I’s vesting clause and declared that the vesting clause forbids Congress to “abdicate or to transfer to others the essential legislative functions with which it is thus vested.”

Id. at 529. And it pronounced the statute unconstitutional

because it “supplies no standards” for guiding the President’s discretion. Id. at 541. In the words of the Court:

18

Congress cannot delegate legislative power to

the President to exercise an unfettered discretion to make whatever laws he thinks may be

needed or advisable for the rehabilitation and

expansion of trade or industry.

Id. at 537–38. Although other aspects of the Schechter

opinion — such as its analysis of the commerce power —

were later abandoned, this Court has never repudiated or

undermined Schechter’s holding or analysis on the divestment of legislative power, and Schechter’s holding on this

point remains good law. See Cass R. Sunstein, Is the Clean

Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 332

(1999) (noting that Schechter’s nondelegation holding “has

not been overruled even implicitly”).

Section 20913(d) presents an even graver offense to

Article I’s vesting clause because the statute does not require the Attorney General to make any findings before

deciding whether and to what extent the statutory registration requirements should apply to pre-SORNA convicts. Not only does this statute “suppl[y] no standards”

to guide the Attorney General’s discretion, it requires no

findings either, making this statute even worse than the

statutory scheme that this Court unanimously disapproved in Schechter. It essentially tells the Attorney General to do whatever he wants when it comes to imposing

statutory registration requirements on pre-SORNA offenders. It even licenses him to vary its implementation

by particular jurisdictions, as if laws can vary in their application as dictated by a given public official for his own

reasons. A statute of this sort cannot logically co-exist

with the holding of Schechter — nor can it co-exist with a

19

constitution that “vests” legislative power in Congress rather than in the executive or its agencies.

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), reaffirmed that statutes empowering the executive must

provide some semblance of criteria or factual findings to

guide the executive’s discretion — otherwise the statute

becomes a forbidden transfer of lawmaking power. Panama Refining disapproved a statute that authorized the

President to prohibit the transportation of petroleum

goods produced in excess of state quotas, but that failed

to provide any standard or guideline to the President regarding whether or to what extent he should use this

power. In the Court’s words, the statute “gives to the

President an unlimited authority to determine the policy

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

he may see fit.” Id. at 415.

So too here. Section 20913(d) has nothing at all to say

as to whether the Attorney General should require preSORNA convicts to register, or the extent to which he

should do so. It allows the Attorney General unfettered

discretion in choosing how — or even whether — to extend

the statute’s registration requirements to this class of sex

offenders, without even the pretense of an “intelligible

principle” to guide him. Like the statute in Panama Refining, it “establishes no criterion to govern the [executive’s] course,” and it “does not require any finding . . . as

a condition of his action.” Id. at 415. No standard or policy

is declared in the statute, and no findings are required to

be made. If a statute of this sort can pass constitutional

muster, it is hard to imagine a statute that would violate

20

the nondelegation doctrine or (in the Constitution’s

words) the vesting clause of Article I.

Indeed, if this statute suffices, it is hard to see why a

statute that entrusted the Attorney General to decide

whether or not all sex offenders — past and future — have

to register would be unconstitutional. That is, if unfettered discretion is permissible for half the law, why by the

same logic would it not be permissible for the other half of

the law?

The only way that the Court could sustain this statute

is to throw up its hands and give up on policing the separation of powers — an approach that would effectively

carve out a separation-of-powers exception to the rule of

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See,

e.g., Jesse H. Choper, Judicial Review and the National

Political Process (1980). What is not possible is to do what

the Solicitor General is proposing: Retain the nondelegation doctrine and the “intelligible principle” requirement — as well as the holdings in Schechter and Panama

Refining— but then declare that this statute falls on the

proper side of the boundary that separates laws that confer guided discretion on the executive from those that confer unguided discretion. This statute does not even pretend to supply an “intelligible principle”; it expressly

leaves the decision to the Attorney General and gives him

unfettered discretion in applying SORNA’s requirements

to pre-SORNA convicts.

21

B. The

Court

Should

Reinvigorate

the

“Intelligible Principle” Requirement If It Will

Not Reject It as a Legal Fiction

For the reasons explained supra at pp. 14-15, having

an “intelligible principle” does not avoid administrative

lawmaking. Hence, this Court should repudiate the “intelligible principle” requirement as a legal fiction. Short of

that, however, we respectfully urge the Court to at least

substantially strengthen what that requirement entails.

The rulings of this Court have so watered down the “intelligible principle” standard as to render it neither intelligible nor principled. It has been held to be enough for a

statute to tell an agency to regulate in the “public interest,” i.e., whatever the agency regards to be the “public

interest.” See, e.g., National Broadcasting Co. v. United

States, 319 U.S. 190, 225–26 (1943) (Federal Communications Commission’s power to regulate airwaves).

We have already shown that § 20913(d) offers no principle, let alone an “intelligible” one, to guide the Attorney

General’s discretion — and that is enough to condemn the

statute under existing doctrine. But we urge the Court to

go further and to put some teeth in the “intelligible principle” requirement. A statute that empowers an agency to

go forth and “regulate in the public interest” is a legislative abdication that confers lawmaking powers on agency

officials and allows Congress to escape responsibility and

accountability for federal policy decisions. If this Court is

prepared to hold that § 20913(d) violates Article I’s vesting clause by improperly transferring lawmaking powers

to the Attorney General, does it really want to imply that

Congress can fix the problem simply by adding a

22

subjective and indeterminate “public interest” requirement to the statute?

The Court’s prior decisions have misled Congress into

believing that the most open-ended “intelligible principle”

will pass muster, and where the Court’s own actions have

left such a profoundly dangerous misimpression about the

law — one that radically diminishes the liberty of Americans — the Court has a responsibility to correct its error

and rectify the misimpression now that the chance to do

so has arisen.

III. S ECTION 20913(d) V IOLATES THE C ONSTITUTION

BY E MPOWERING THE A TTORNEY G ENERAL TO

A CT AS B OTH L AWMAKER AND L AW E NFORCER

Another constitutional problem with § 20913(d) is both

simple and obvious: Congress only passed half a law. The

result allows the Attorney General, a member of the executive branch, to act as both lawmaker and law enforcer.

The Attorney General — and he alone — gets to decide

whether and to what extent hundreds of thousands of preSORNA convicts must register. And he can change his

mind at any time and as many times as he chooses. At the

same time, the Department of Justice under his supervision is empowered to decide whether to prosecute those

who violate his unilateral edicts.

When heads of administrative agencies enjoy both

rulemaking power and oversight over agency enforcement under their authorizing statutes, this combination is

defended on the theory that the Constitution’s separation

of powers requires only a separation of functions. From

this perspective, it is said that the Administrative Procedure Act sufficiently segregates the different functions of

23

government within agencies as to leave few serious concerns about the combination of lawmaking and prosecution in a single agency. But unlike the authorizing statutes

of administrative agencies, which make at least some effort to allocate different governmental functions to different persons, SORNA empowers a single person — the Attorney General — personally to make the rules and enforce them. SORNA thus does not admit a separation of

functions. On the contrary, it combines them in violation

of the theories that are said to justify administrative

power.

Indeed, its combination of powers in a single person

also violates the Constitution. By vesting legislative and

judicial powers in different branches of government, the

Constitution bars the combination of these powers in one

agency, let alone one person. Nor should this be a surprise,

for the combination of such powers in one body (institutional or personal) has long been considered very dangerous. See Montesquieu, The Spirit of the Laws (1748)

(“When the legislative and executive powers are united in

the same person, or in the same body of magistrates,

there can be no liberty; because apprehensions may arise,

lest the same monarch or senate should enact tyrannical

laws, to execute them in a tyrannical manner.”); P. Hamburger, Is Administrative Law Unlawful? 261 (“The

combination of powers in administrative agencies . . .

gives them a power of extortion.” For example, an agency,

“by threatening executive or judicial action” can “pursu[e]

one power by threatening the use of another.”).

But the strongest arguments against SORNA’s combination of lawmaking and prosecutorial powers in the

24

Attorney General do not rest merely on the administrative theory of separated functions, nor even on general

ideas about the Constitution’s separation of powers. Instead, the really telling objections are more focused.

A. SORNA Is Incompatible with the Attorney

General’s Duties

The Attorney General is not just another head of a

government agency. He is the principal legal officer of the

federal government. He is, indeed, its chief prosecutor

who, more than any other officer, has the task of carrying

out the President’s constitutional duty to “take Care that

the Laws be faithfully executed.” U.S. Const. art. II, § 3.

And he is “the principal Officer” of one of “the executive

Departments,” of whom the President “may require the

Opinion, in writing . . . upon any Subject relating to the

Duties of their respective Offices.” U.S. Const. art. II, § 2.

In overseeing that the laws be faithfully executed, and in

giving the President formal opinions on the law, the Attorney General exercises an element of executive power,

which the Constitution carefully places in a different department than the one in which it locates legislative powers.

The Attorney General, moreover, like other government lawyers, has a duty that goes beyond the mundane

duty of a private lawyer to zealously represent his client.

In addition to his duty of representation, a government

lawyer has a duty to adhere to the law. P. Hamburger, Law

and Judicial Duty 111, 320–21, 492 (Harvard U. Press

2008). Although not specified in the Constitution, this duty

is implicit in the Constitution’s assumption that the President will appoint officers such as the Attorney General to

25

effectuate the President’s duty to “take Care that the

Laws be faithfully executed.” The Attorney General, acting under the President, thus has a constitutional duty, derived from the President’s, to take care that the laws be

faithfully executed.

The Attorney General’s duty is different from that of

a judge because government lawyers have a duty, not of

judgment in accord with the law, but of advising, prosecuting, and arguing in accord with the law. Put another way,

their duty is one of providing advice and representation

rather than of independent judgment; but whereas private lawyers are free to give advice, bring actions, and

make arguments that they know to deviate from the law,

government lawyers must try to remain within its scope.

And it is in tension with this duty for the Attorney

General to personally enact law (here in administrative

rules) and then oversee the prosecution of offenders under these laws. Of course, government lawyers do not

need to be as completely without predispositions as the

judges in their decisions, for government lawyers have a

client — the government and ultimately the people of the

United States. And in this context, they advise the executive branch on legislation enacted by Congress. But the

Constitution establishes the executive branch apart from

the legislative branch, and it thus takes for granted that

lawyers within the executive will not have any predisposition arising from their personal enactment of law. In other

words, it is assumed in the Constitution that government

lawyers will try to remain within the law when prosecuting and arguing for the government, without the partiality

26

that comes from having personally enacted the underlying rule.

By enacting binding rules under SORNA, the Attorney General will inevitably be inclined in favor of his own

enactments, in favor of their rigorous enforcement, and in

favor of their constitutionality. He therefore cannot be expected to “take Care that the Laws be faithfully executed”

under SORNA to the same extent as when he does not

participate in lawmaking. He cannot personally make a

law without jeopardizing his duty (derivative of the president’s) to take care that the laws be faithfully executed.

SORNA creates, in other words, an unconstitutional

conflict of interest. Under the Constitution, the Attorney

General has a duty to the people to take care that the laws

are faithfully executed. And by locating his office outside

of Congress, the Constitution enables him to do his duty

without the conflict of interest that would be inevitable if

he also enacted the laws. In contrast, when he makes law,

he acquires an interest in that law that conflicts with his

ability to do his duty to the people—a conflict that the

Constitution carefully avoided by separating his office

from the legislature.

Put more generally, the combination of powers in the

Attorney General at work here reveals how administrative power corrupts executive power. By transferring lawmaking power to the nation’s supervising prosecutor,

SORNA not only divests Congress of the power that the

Constitution vested in it, but it also gives the Attorney

General a legislative role that is incompatible with the duties that the Constitution vests in the executive — in particular, the duty to take care that the laws be faithfully

27

executed. If there is to be a legitimate role for an administrative state, it cannot undermine the constitutional duties of the executive.

B. SORNA Revives the Constitutionally Forbidden

Suspending and Dispensing Powers

SORNA empowers the Attorney General to exclude

persons from the statute’s ambit and thereby confers

upon him the long-forbidden suspending and dispensing

powers. In allowing him to make the statute applicable to

prior offenders and then change his mind, § 20913(d) permits him to suspend the statute. And in authorizing him

initially or later to pick and choose which sorts of prior

offenders are not covered and even to relax “its implementation in a particular jurisdiction,” § 20913(d) allows him

to dispense with the statute.

This administrative revival of the suspending and dispensing powers violates Article I’s vesting of legislative

powers in Congress. Early English kings claimed an absolute power to suspend statutes for all persons and to

dispense with statutes for particular persons, and these

powers came to be viewed as incompatible with legislative

power. P. Hamburger, Is Administrative Law Unlawful?

69 (quoting, for example, Sir William Williams: “Is there

anything more pernicious than the dispensing power?

There is an end of all the legislative power, gone and lost.”)

The exercise of such powers did much to provoke the English Revolution of 1688, and in response, the English Declaration of Rights in 1689 barred any exercise of the dispensing or suspending powers unless authorized by Parliament. (“That the pretended power of suspending of

laws or the execution of laws by regal authority without

28

consent of Parliament is illegal” and that “no dispensation

by non obstante of or to any statute or any part thereof

shall be allowed but that the same shall be held void and

of no effect except a dispensation be allowed of in such

statute.”).

Early American state constitutions vested legislative

power in their legislatures and thereby generally defeated executive dispensations and suspensions of statutes. The exception was that about half the early state

constitutions followed the English Declaration of Rights

in leaving room for executive suspensions of statutes with

legislative authorization. (The Maryland Constitution, for

example, provided that “no power of suspending Laws, or

the execution of Laws, unless by, or derived from the Legislature, ought to be exercised, or allowed.” Md. Decl. of

Rights, Art. 9.) The U.S. Constitution is even more sparing; it leaves space only for a suspension of habeas corpus,

only in extreme circumstances, and only when Congress

itself suspends the writ. U.S. Const. art. I, § 9. The U.S.

Constitution thus bars any executive dispensing or suspending of statutes, or of their execution. It follows that

the Attorney General cannot enjoy discretion to choose

the application and implementation of SORNA.

The combination of executive and legislative powers in

the Attorney General violates the administrative theory

of separated functions and the Constitution’s separation

of powers. But even if one could get past those objections,

it is also incompatible with the Attorney General’s executive duties — notably to take care the laws are faithfully

enforced — and it gives him suspending and dispensing

powers that Article I forbids.

29

IV. C ONSTITUTIONAL C ONCERNS A RE E SPECIALLY

G RAVE W HEN C ONGRESS D IVESTS I TSELF OF

C RIMINAL L AWMAKING P OWERS

Perhaps the most disturbing feature of this case is that

§ 20913(d) gives the Attorney General unilateral authority

to decide whether individuals will be subject to the requirements of a criminal statute. The consequences of violating SORNA are severe: a fine and imprisonment up to

10 years. See 18 U.S.C. § 2250(a). Yet the statute refuses

to say whether the hundreds of thousands of sex offenders

convicted before SORNA are subject to the law’s requirements and its criminal penalties. Instead, the statute empowers the Attorney General to decide — in his complete

and unfettered discretion — whether the law even applies

to this vast category of individuals.

No less troubling is the fact that the statute allows the

Attorney General to change his mind or change the policies of his predecessor on these matters at any moment

whenever he sees fit to do so. What is today a federal

crime might not be a federal crime tomorrow, depending

on what today’s Attorney General happens to be thinking

or deciding. And what is not a federal crime today might

become a federal crime tomorrow — depending once

again on a unilateral edict from the Attorney General.

It is intolerable for the law-making and law-enforcing

powers to be combined in the person of a single individual

officeholder when criminal penalties are at stake. The

power to impose imprisonment and criminal sanctions is

among the most awesome and dangerous powers that a

government wields over its citizens, and it is a power that

has been gravely abused by governments throughout

30

world history. Our Constitution is almost obsessed with

controlling these powers to ensure that our nation never

falls prey to the abuses and atrocities that have plagued

the administration of criminal justice in other nations, as

shown by the prohibitions on Bills of Attainder and Ex

Post Facto laws, the jury guarantee in Article III, the definition of treason, the two-witness requirement, and the

remarkable set of protections that appears in the Bill of

Rights.

But the most important protection of all comes in the

vesting clauses of Articles I, II, and III. No citizen can be

imprisoned for a federal crime unless Congress — a multimember body — enacts a statute making the conduct illegal, the executive decides to bring charges, and the defendant is convicted in court before an independent judge,

with a right to a jury. Popular sovereignty bookends this

process: the criminal prohibition must be enacted by a

representative legislature, and the defendant has the

right to have the criminal conviction come from a jury chosen from the citizenry. See Blakely v. Washington, 542

U.S. 296, 306 (2004). And the essential involvement that is

needed from all three branches prevents the corruption of

a single branch — or even the corruption of two of the

three branches — from leading to unjust imprisonment.

But SORNA short-circuits this process by allowing

the Attorney General rather than Congress to decide

whether pre-SORNA offenders should be required to register and be subject to criminal penalties for failing to do

so. Rather than resolving this issue in the statute,

§ 20913(d) responds with a shrug and a punt that purports

to authorize the law-enforcing authority to be the

31

lawmaker as well — all in a criminal matter with the risk

of imprisonment that entails.

SORNA administratively combines lawmaking and

prosecution. The criminal law itself is thereby corrupted.

James Madison spoke eloquently of the constitutional

offense that arises when statutes empower those who enforce the criminal laws to simultaneously define the relevant criminal prohibitions:

However difficult it may be to mark, in every

case, with clearness and certainty, the line which

divides legislative power from the other departments of power, all will agree that the powers

referred to these departments may be so general and undefined, as to be of a legislative, not

of an executive or judicial nature, and may for

that reason be unconstitutional. Details, to a

certain degree, are essential to the nature and

character of a law; and on criminal subjects, it is

proper that details should leave as little as possible to the discretion of those who are to apply

and execute the law. 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, and proclamations might become substitutes for law. A delegation of power in this latitude would not be denied to be a union of the

different powers.

32

James Madison, 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 559–60 (Jonathan Elliot ed., 2d ed., 1836) (emphasis

added). The Court cannot remain faithful to the government established by Madison and the other Framers if it

is willing to allow the Attorney General’s “proclamation”

to serve as the basis for a criminal prosecution. Congress

must codify the Attorney General’s rule through bicameralism and presentment before Gundy (or any other preact offender) may be prosecuted for “violating” SORNA.

V. T HE C OURT M AY R EMEDY THE C ONSTITUTIONAL

V IOLATIONS BY J UST I NVALIDATING THE

ATTORNEY G ENERAL’ S R ULE

When a statute such as § 20913(d) improperly confers

lawmaking powers on executive or agency officials, the

conventional remedy is to declare the underlying statute

unconstitutional. See Schechter Poultry, 295 U.S. at 542;

Panama Refining, 293 U.S. at 430. But this is not the only

possible remedy, for this Court can also focus on the executive or agency lawmaking done under the statute and

hold that executive or agency action unconstitutional and

void.

And while we of course believe that this Court should

pronounce § 20913(d) unconstitutional, we note that this

Court could also or instead take the more modest step of

invalidating the Attorney General’s rule as an unconstitutional usurpation of legislative power. The Attorney General’s rulemaking was the unconstitutional government

action that most directly and immediately penalized

Gundy, and the Court should therefore at the very least

33

hold the Attorney General’s rule unconstitutional and

void.

This Court has often said that an Act of Congress is

entitled to a strong presumption of constitutionality, and

that rulings pronouncing a federal statute unconstitutional are not to be made lightly. See, e.g., United States v.

Morrison, 529 U.S. 598, 607 (2000) (“[W]e invalidate a

congressional enactment only upon a plain showing that

Congress has exceeded its constitutional bounds.”);

Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.,

concurring) (describing the decision to declare an Act of

Congress unconstitutional as “the gravest and most delicate duty that this Court is called on to perform”). Here,

this Court can take the less dramatic step of disapproving

the Attorney General’s rule. Lawmaking by executive officials is improper regardless of whether an Act of Congress purports to authorize it — and this Court can simply

proclaim that the Attorney General’s rule has no legal effect because it was not enacted according to the “finely

wrought” constitutional procedure for creating laws. See

Clinton v. City of New York, 524 U.S. 417, 440 (1998).

Either way, the Court must recognize the Attorney

General’s complicity in this unconstitutional lawmaking.

Executive and agency officials are all too often pleased to

receive legislative powers from Congress, without pausing to ask whether the Constitution would allow the allotment of powers described in the underlying statutes. But

a conscientious Attorney General does not passively accept Congress’s divestitures of legislative power. Instead,

he conducts his own investigation into the constitutionality of this arrangement. And if he concludes that Congress

34

has improperly divested itself of legislative powers, then

he must insist that Congress codify his proposed rulemaking in a statute before taking any steps to issue and enforce his rule.

Congress of course deserves blame for its eagerness

to pass the buck to executive and agency officials. But it

should not be forgotten that the Attorney General’s unconstitutional rulemaking under SORNA was the more

direct and immediate cause of harm to Gundy. So let us

not absolve the recipients of these divested congressional

powers of blame by focusing solely on the congressional

malfeasance that undergirds these unconstitutional lawmaking regimes.

If the Attorney General cannot be counted upon to decline taking the unconstitutional bait, there is little hope

that other cabinet officers or agency officials — many of

whom are not lawyers — will reject invitations to legislate

that Congress never should have extended. Perhaps by

striking down the Attorney General’s unconstitutional

rule, this Court can drive home the point that executive

officials have a duty to decide for themselves whether they

can constitutionally perform statutory directions.

35

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

PHILIP HAMBURGER

MARK CHENOWETH

MARGARET A. LITTLE

New Civil Liberties Alliance

P.O. Box 19005

Washington, DC 20036-9005

(202) 830-1434

June 1, 2018

JONATHAN F. MITCHELL

Counsel of Record

559 Nathan Abbott Way

Stanford, California 94305

(650) 723-1397

jfmitche@stanford.edu