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,

________________

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

________________

BRIEF OF WILLIAM D. ARAIZA AND 14

OTHER CONSTITUTIONAL, CRIMINAL, AND

ADMINISTRATIVE LAW PROFESSORS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

________________

Andrew D. Silverman

Counsel of Record

Benjamin Chagnon

Alison M. Kilmartin

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

asilverman@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 3

I.

This Case Can Be Resolved Under

Existing Nondelegation Jurisprudence. ............ 5

A. SORNA’s pre-Act offender provision

lacks any standards. ..................................... 7

B. The lack of any standard in SORNA’s

pre-Act offender provision is fatal

under existing precedent. ........................... 13

II. The Criminal Nature Of The Pre-Act

Offender Authority SORNA Grants

Renders Its Lack Of Standards

Particularly Problematic. ................................. 18

CONCLUSION ........................................................ 25

Appendix A

List of Signatories .....................................................1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

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

United States,

295 U.S. 495 (1935) ........................................13, 20

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) ................................................13

Armour v. City of Indianapolis,

566 U.S. 673 (2012) ........................................15, 16

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ..............................................23

Clinton v. City of New York,

524 U.S. 417 (1998) ........................................21, 22

Fahey v. Mallonee,

332 U.S. 245 (1947) ........................................20, 24

Fed. Energy Admin. v. Algonquin

SNG, Inc.,

426 U.S. 548 (1976) ..............................................14

Ginzburg v. United States,

383 U.S. 463 (1966) ..............................................21

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ........................................11, 15

iii

INS v. Chadha,

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

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

States,

276 U.S. 394 (1928) .............................. 2, 4, 5, 6, 10

Jordan v. De George,

341 U.S. 223 (1951) ................................................3

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) ..............................................23

Lichter v. United States,

334 U.S. 742 (1948) ..............................................14

Loving v. United States,

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

Mistretta v. United States,

488 U.S. 361 (1989) ........................................15, 20

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) ..............................................14

Nat’l Cable Television Ass’n v. United

States,

415 U.S. 336 (1974) ..............................................21

New York Cent. Sec. Corp. v. United

States,

287 U.S. 12 (1932) ................................................14

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ........................................12, 20

iv

Printz v. United States,

521 U.S. 898 (1997) ................................................6

Radzanower v. Touche Ross & Co.,

426 U.S. 148 (1976) ..............................................13

Reynolds v. United States,

565 U.S. 432 (2012) ................ 7, 8, 9, 10, 11, 12, 17

Rodriguez v. United States,

480 U.S. 522 (1987) ..............................................12

Sessions v. Dimaya,

138 S. Ct. 1204 (2018)................................ 3, 17, 22

Touby v. United States,

500 U.S. 160 (1991) .................... 4, 5, 11, 18, 19, 24

United States v. Grimaud,

220 U.S. 506 (1911) ................................................6

United States v. Nichols,

784 F.3d 666 (10th Cir. 2015).................. 12, 14, 16

United States v. Robel,

389 U.S. 258 (1967) ........................................20, 22

United States v. Ward,

448 U.S. 242 (1980) ..............................................22

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) .................................6

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ........................................11, 15

v

Yakus v. United States,

321 U.S. 414 (1944) ................................ 5, 6, 10, 14

Statutes

Sex Offender Registration and

Notification Act, Pub. L. No. 109248, 120 Stat. 590 (2006), 34 U.S.C.

§ 20901 et seq. (formerly codified at

42 U.S.C. § 16901 et seq.)

34 U.S.C. § 20901 .............................................1, 12

34 U.S.C. § 20911 .............................................7, 10

34 U.S.C. § 20913(a) ........................................7, 10

34 U.S.C. § 20913(b) ............................................10

34 U.S.C. § 20913(c) .........................................7, 10

34 U.S.C. § 20913(d) ...... 2, 3, 6, 7, 8, 10, 12, 13, 20

34 U.S.C. § 20914(a) ........................................7, 10

34 U.S.C. § 20914(b) ........................................7, 10

34 U.S.C. § 20915(a) ............................................10

34 U.S.C. § 20919 ...................................................7

34 U.S.C. § 20927(b)(1) ..........................................9

34 U.S.C. § 20927(b)(2) ..........................................9

34 U.S.C. § 20927(b)(3) ..........................................9

vi

Other Authorities

Rachael E. Barkow, Separation of

Powers and the Criminal Law, 58

Stan. L. Rev. 989 (2006) ......................................21

Rebecca L. Brown, Caging the Wolf:

Seeking a Constitutional Home for

the Independent Counsel, 83 Minn.

L. Rev. 1269 (1999) ..............................................22

A.J. Kritikos, Resuscitating the NonDelegation Doctrine: A Compromise

and an Experiment, 82 Mo. L. Rev.

441 (2017) .............................................................14

The Federalist No. 47 (Madison)

(Modern Library, 1941) .......................................21

The Federalist No. 48 (Madison)

(Modern Library, 1941) .......................................24

1

INTEREST OF AMICI CURIAE1

Amici are professors of constitutional, criminal,

and administrative law. Many of these amici have

written on the issues this case implicates and have

devoted significant attention to studying the nondelegation doctrine. They therefore have professional interests in the correct application of nondelegation

principles in a criminal case. Amici are troubled by

the Sex Offender Registration and Notification Act’s

exceptionally broad delegation of crime-declaring

power to the nation’s chief prosecutor. To explain

their views on the proper outcome of this case, they

respectfully submit this brief as amici curiae. A list of

amici appears in Appendix A, reproduced at 1a-4a.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Sex Offender Registration and Notification

Act (hereinafter “SORNA”), Pub. L. No. 109-248, 120

Stat. 590 (2006), 34 U.S.C. § 20901 et seq. (formerly

codified at 42 U.S.C. § 16901 et seq.), imposes a detailed set of requirements governing the registration

and reporting obligations of sex offenders convicted

after SORNA’s enactment date. It also authorizes the

imposition of registration and reporting obligations

on offenders convicted before that date (persons this

1 The parties have consented to the filing of this brief. Under

Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and no party,

counsel for a party, or any person other than amici and their

counsel made a monetary contribution intended to fund the

preparation or submission of the brief.

2

brief refers to as “pre-Act offenders”). However, it provides no guidance for determining under what circumstances or even whether any of the obligations

imposed on post-Act offenders should also be imposed

on pre-Act offenders. Instead, it simply states as follows: “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.” § 20913(d).

Simply put, this provision lacks any principle—let

alone an intelligible one—that would guide the Attorney General’s creation of registration and reporting

requirements for sex offenders convicted before

SORNA’s enactment date. So understood, this provision constitutes a rare violation of the nondelegation

doctrine. It violates the undemanding requirement

that any congressional delegation of authority to an

executive branch official must be accompanied by an

“intelligible principle” to guide the executive’s implementation. J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409 (1928). This unusually broad delegation is not required by the realities of the regulatory

problem—here, the need to harmonize disparate state

law registration and reporting schemes. Rather, as

other parts of SORNA demonstrate, Congress knew

well how to provide detailed guidance to the Attorney

General when it seeks to accomplish that regulatory

goal.

Should this Court conclude that this case does not

constitute a rare violation of the Court’s long-standing approach to nondelegation issues, it should rule,

3

narrowly, that the criminal and retroactive nature of

the liability the Attorney General is authorized to create justifies more searching nondelegation review of

this provision. Amici respectfully suggest that this

provision cannot withstand any formulation of such

heightened review.

ARGUMENT

This is an exceptional case concerning an exceptional statute. Section 20913(d)—what this brief will

refer to as the “pre-Act offender provision”—provides

that “[t]he 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.” That provision thus authorizes the Attorney General—the nation’s chief criminal prosecutor—to define a crime,

based on past conduct, without even a hint from Congress about the criteria he must employ to do so. It

“hand[s] off the job of lawmaking” to a prosecutor who

is “free to ‘condem[n] all that [he] personally disapprove[s] and for no better reason than [he] disapprove[s] it.’” Sessions v. Dimaya, 138 S. Ct. 1204, 1228

(2018) (Gorsuch, J., concurring in part and concurring

in the judgment) (second alteration in original) (quoting Jordan v. De George, 341 U.S. 223, 232, 242 (1951)

(Jackson, J., dissenting)). One need not impugn the

motives of the Attorney General in wielding this

power to recognize its extraordinary breadth.

Even though it is exceptional—indeed, because it

is exceptional—this case does not require the Court to

4

make new law in the area of the nondelegation doctrine. The statute in this case fails the long-standing

requirement that any federal grant of power to an administrative agency must feature an “intelligible

principle.” J.W. Hampton, 276 U.S. at 409. The preAct offender provision contains no principle, let alone

an intelligible one, to guide the Attorney General’s exercise of delegated power. That alone is enough to render the statute unconstitutional.

But the pre-Act offender provision’s delegation is

all the more troubling because it grants crime-declaring power to the nation’s chief criminal prosecutor

and allows him to do so retroactively. This runs afoul

of the foundational requirements that, within the federal government, only Congress may declare certain

conduct criminal and only Congress may declare

when a law will have retroactive effect. These features of the pre-Act offender provision require, at a

minimum, that this Court faithfully apply its existing

nondelegation precedent. Should the Court believe,

however, that this case requires deciding whether

“something more than an ‘intelligible principle’ is required when Congress authorizes another Branch to

promulgate regulations that contemplate criminal

sanctions,” Touby v. United States, 500 U.S. 160, 16566 (1991), or regulations with retroactive effect, it

should recognize that, whatever additional specificity

is required in those narrow circumstances, such specificity does not exist in this case.

5

I.

This Case Can Be Resolved Under Existing

Nondelegation Jurisprudence.

For ninety years, this Court has decided nondelegation claims by asking whether the statute in question contains an “intelligible principle to which the

person or body authorized to [act] is directed to conform.” J.W. Hampton, 276 U.S. at 409; see also, e.g.,

Touby, 500 U.S. at 165 (noting plaintiff’s concession

that in the statute in question “Congress has set

forth … an ‘intelligible principle’ to constrain the Attorney General’s discretion to schedule controlled

substances on a temporary basis”). The intelligible

principle test reflects “common sense and the inherent necessities of the governmental co-ordination.”

J.W. Hampton, 276 U.S. at 406. It “does not demand

the impossible or the impracticable.” Yakus v. United

States, 321 U.S. 414, 424 (1944). All that the Constitution requires is that the “essentials of the legislative

function”—“the determination of … legislative policy

and its formulation and promulgation”—be left to

Congress. Id. The proper division of labor between

Congress and the Executive branch is preserved

“when Congress … specifie[s] the basic conditions of

fact upon whose existence or occurrence … it directs

that its statutory command shall be effective,” even if

it is up to a given “administrative agency” to “ascertain[] from relevant data” when that fact has occurred. Id. at 424-25.

To be sure, the Court has found the nondelegation

doctrine difficult to apply in practice. There is an admittedly hazy boundary between, on the one hand,

delegations that adequately state “an intelligible

6

principle,” J.W. Hampton, 276 U.S. at 409, “determin[e] … legislative policy,” Yakus, 321 U.S. at 424,

or require the agency merely to “fill up the details,”

United States v. Grimaud, 220 U.S. 506, 517 (1911)

(quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1,

43 (1825)), and, on the other hand, unconstitutional

delegations of legislative power. See, e.g., Grimaud,

220 U.S. at 517 (“It must be admitted that it is difficult to define the line which separates legislative

power to make laws, from administrative authority to

make regulations.”); Printz v. United States, 521 U.S.

898, 927 (1997) (“This Court has not been notably successful in describing the … line” separating constitutional grants of authority to agencies from

unconstitutional delegations of legislative power).

Although this Court has determined that Congress is almost always on the right side of that boundary, here Congress overstepped the bounds of

permissible delegation under any understanding of

what the “intelligible principle” test requires. Section

20913(d) clearly lacks “an intelligible principle,” J.W.

Hampton, 276 U.S. at 409, fails to “determin[e] … legislative policy,” Yakus, 321 U.S. at 424, and in no way

can be understood as simply requiring the agency to

“fill up the details,” Grimaud, 220 U.S. at 517 (citation omitted). When looked at in isolation or when

compared against other provisions in SORNA, it is

readily apparent that the pre-Act offender provision

contains no principle to guide the Attorney General.

See infra § I.A. This lack of any guiding principle in

SORNA’s pre-Act offender provision distinguishes it

from the laws this Court has upheld against nondelegation challenges. See infra § I.B. If the nondelegation

7

doctrine is to retain any meaning, this provision must

be struck down.

A. SORNA’s pre-Act offender

lacks any standards.

provision

SORNA’s pre-Act offender provision states that

“[t]he 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.” § 20913(d).

As construed in Reynolds v. United States, 565 U.S.

432 (2012), SORNA’s pre-Act offender provision

grants exceptional discretion to the Attorney General.

The Court’s reading of the pre-Act offender provision

“leave[s] 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.” Id. at 450 (Scalia, J., dissenting).

This lack of a governing standard is made all the

more apparent when measured against other provisions in SORNA, which are quite detailed. Among

many other things, SORNA provides detailed rules

governing registration requirements. It provides criteria for placing sex offenders into particular offense

level categories, § 20911, sets forth the jurisdictions

in which they are required to register, § 20913(a), (c),

provides the information the offender and the jurisdiction are required to place in the sex offender registry, § 20914(a)-(b), and sets forth the process by which

sex offenders are notified of their obligation to register, § 20919. See also Reynolds, 565 U.S. at 435

8

(SORNA “set[s] forth comprehensive registration-system standards”). This level of detail proves that Congress

understood

how

to

provide

such

“comprehensive … standards” for sex offenders required to register. Id.

None of these requirements applies, as a matter of

the statute’s mandate, to sex offenders convicted before SORNA’s enactment date. Nor is the Attorney

General provided any guidance on how or even

whether to impose analogous requirements on such

individuals. Instead, under the pre-Act offender provision, the sitting Attorney General enjoys absolute

discretion to apply all, none, or some combination of

these requirements to pre-Act offenders, without any

guidance or constraint from Congress. § 20913(d).2

See Reynolds, 565 U.S. at 440 (Section 20913(d) “is

more naturally read as conferring the authority to apply [SORNA’s registration requirements to pre-Act offenders], not the authority to make exceptions” to

requirements that otherwise automatically apply); id.

at 444-45 (rejecting as “unrealistic” the fear that reading the statute so as to not require pre-Act offenders

to register immediately would raise the specter of the

Attorney General failing to apply SORNA’s registration requirements to those offenders); id. at 449

(Scalia, J., dissenting) (dissenting from the majority’s

2 Indeed, it is arguable that the pre-Act offender provision

allows the Attorney General to impose a completely separate

registration regime on pre-Act offenders. See Reynolds, 565 U.S.

at 440-41 (“[P]ractical problems arising when the Act sought to

apply the new registration requirements to pre-Act offenders … might have warranted different federal registration treatment of different categories of pre-Act offenders.”).

9

interpretation, on the ground that the effect of such a

reading “is to read the statute as leaving it up to the

Attorney General whether the registration requirement would ever apply to pre-Act offenders”).

To be sure, crafting standards relating to nationwide registration of offenders convicted before

SORNA’s enactment date raises practical problems

given the need to harmonize “a patchwork” of state

law registration requirements. See id. at 440-41 (recognizing these problems). In light of those difficulties,

it might have been understandable for Congress to

think that delegating those problems to the Attorney

General for resolution might be more efficient than

for Congress to resolve them itself. See id.

But when Congress encountered this harmonization problem elsewhere in SORNA, it was able to provide the very guidance lacking here. Most notably,

when Congress encountered this harmonization problem in the context of evaluating whether a jurisdiction, such as a state, has complied with SORNA, it

provided the Attorney General with a detailed substantive and procedural roadmap to follow as he

sought to resolve it. When making that evaluation, he

is required to determine whether such compliance

would violate that jurisdiction’s constitution.

§ 20927(b)(1). In making that determination, he is in

turn required to consult with that jurisdiction’s chief

executive and chief legal officer. § 20927(b)(2). If he

determines that such compliance is indeed blocked by

the jurisdiction’s constitution, he may find the jurisdiction in compliance nevertheless, if that jurisdiction

is implementing “reasonable alternative procedures

or accommodations.” § 20927(b)(3). This level of detail

10

proves that Congress understood not only how to provide such “comprehensive … standards” for sex offender registration but also how to guide the Attorney

General’s discretion in creating the set of harmonized

national standards it desired. See Reynolds, 565 U.S.

at 435 (recognizing the Act’s harmonization goal).

Thus, there simply is no excuse for the lack of an

analogous roadmap for the executive branch to follow

when addressing pre-Act offender concerns. Given

Congress’s provision of ample guidance in the postAct offender registration and state compliance contexts, it cannot be said that the pre-Act offender provision’s lack of standards is a concession to “common

sense and the inherent necessities of the governmental co-ordination.” J.W. Hampton, 276 U.S. at 406. Indeed, the post-Act offender provisions provide the

very criteria and standards that presumably would

assist the Attorney General in making analogous determinations for pre-Act offenders. See, e.g., §§ 20911,

20913(a)-(c), 20914(a)-(b), 20915(a) (specifying registration requirements for post-Act offenders based on

their offense levels, and specifying the jurisdictions in

which registration is required and the content of the

registration information). To demand standards for

pre-Act offenders analogous to those applied to postAct offenders is not to “demand the impossible or the

impracticable.” Yakus, 321 U.S. at 424.

Because the pre-Act offender provision itself lacks

any standard, there may be some temptation to locate

a standard by reading limits into the statute. There is

no basis for doing so. First, this Court’s decision in

Reynolds precludes an attempt to read any standards

into § 20913(d). To be sure, many decisions upholding

11

a grant of authority proceed to the nondelegation

analysis only after the Court had interpreted the relevant statutory provision so as to provide sufficiently

determinate guidance to the agency to satisfy nondelegation review. See, e.g., Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 474 (2001) (“We agree with the

Solicitor General that the text of § 109(b)(1) of the

[Clean Air Act] at a minimum requires that [f]or a discrete set of pollutants and based on published air

quality criteria that reflect the latest scientific

knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect

public health from the adverse effects of the pollutant

in the ambient air. Requisite, in turn, ‘mean[s] sufficient, but not more than necessary.’ These limits on

the EPA’s discretion are strikingly similar to the ones

we approved in [Touby, 500 U.S. 160].”) (internal citations omitted). In this way, the nondelegation doctrine has often served more as a canon of statutory

interpretation rather than as a basis for striking

down a statute. See also Indus. Union Dep’t, AFL-CIO

v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (“A

construction of the statute that avoids this kind of

open-ended grant should certainly be favored.”).

In this case, however, Reynolds removed the possibility of such a constraining interpretation—for example, one that made SORNA’s provisions

automatically applicable to pre-Act offenders unless

and until the Attorney General acted, or one that

made the Attorney General’s specification authority

applicable “only to those pre-Act sex offenders unable

to comply with the statute’s ‘initial registration’ requirements.” 565 U.S. at 445 (rejecting both of these

alternatives). What remains is a pure, unadorned

12

grant of standardless discretion to the Attorney General immune to curing by a limiting interpretation.

Cf. id. at 448, 450 (Scalia, J., dissenting) (observing

that the majority’s interpretation of § 20913(d) is

“sailing close to the wind with regard to the principle

that legislative powers are nondelegable”).

Second, while it may be tempting, the Court

should decline any invitation to find the required

standards by “rummag[ing]” around in SORNA’s preamble. United States v. Nichols, 784 F.3d 666, 674

(10th Cir.) (Gorsuch, J., dissenting from denial of rehearing en banc), cert. granted in part, 136 S. Ct. 445

(2015). That provision merely explains that SORNA

“establishes a comprehensive national system” to

“protect the public from sex offenders and offenders

against children.” § 20901. It is thus of no help in determining how the Attorney General should proceed

in “establish[ing]” such “a comprehensive … system”

to “protect the public.” Id. More generally, such “rummag[ing]” should be disfavored. Even when statements in statutory preambles point in a single

direction, they are not always a reliable guide for

what Congress intended or what the statute actually

does. “Legislation is the art of compromise and few (if

any) statutes pursue a single preambulatory purpose

without condition, subtlety, or exception.” Nichols,

784 F.3d at 675 (Gorsuch, J., dissenting from denial

of rehearing en banc) (quoting Rodriguez v. United

States, 480 U.S. 522, 526 (1987)). Of course, when

such statements expressly embrace conflicting goals,

they provide no meaningful constraint. Compare Panama Refining Co. v. Ryan, 293 U.S. 388, 418 (1935)

(“Among the numerous and diverse objectives broadly

13

stated [in the National Industrial Recovery Act’s ‘Declaration of Policy’], the President was not required to

choose.”); A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 541-42 (1935) (noting the “scope”

of the “broad declaration” of the policy behind the National Industrial Recovery Act as relevant to the

Court’s conclusion that the statute gave the President

“virtually unfettered” discretion). It is thus unsurprising that the Court has privileged more focused statements of legislative intent over broader, aspirational

ones. See, e.g., Radzanower v. Touche Ross & Co., 426

U.S. 148, 153 (1976). Such broader, aspirational goals

cannot be used as salves of constitutional stature for

statutes that otherwise lack any standards at all.

B. The lack of any standard in SORNA’s

pre-Act offender provision is fatal under

existing precedent.

The lack of standards governing the implementation of § 20913(d) dooms this provision under any approach to nondelegation. Simply put, in the modern

era the Court has not confronted a statutory grant of

any power to an agency, let alone a grant of power to

define crimes, without the shadow of a standard governing how that power is to be wielded.3 Even the delegation often thought to be among the broadest in the

3 Compare, e.g., Am. Power & Light Co. v. SEC, 329 U.S. 90,

104 (1946) (upholding against a nondelegation challenge

§ 11(b)(2) of the Public Utility Holding Company Act of 1935,

which gave the Securities and Exchange Commission the

authority to modify the structure of holding company systems so

as to ensure that they are not “unduly or unnecessarily

complicate[d]” and do not “unfairly or inequitably distribute

14

post-Schechter/Panama Refining era—the delegation

to the Federal Communications Commission to regulate radio airwaves in “the public interest, convenience, or necessity”4—was held to incorporate some

standard governing the agency’s exercise of power.

There the Court found within the “public interest”

mandate “the interest of the listening public in the

larger and more effective use of radio,” and on that

basis upheld the statute against a nondelegation challenge. Nat’l Broad. Co. v. United States, 319 U.S. 190,

216, 226 (1943) (internal quotation omitted); see also

Nichols, 784 F.3d at 675 (Gorsuch, J., dissenting from

voting power among security holders”); Yakus, 321 U.S. at 420,

423-26 (upholding a wartime conferral of power to an agency to

fix the prices of commodities at a level that “will be generally fair

and equitable and will effectuate the purposes of th[e] Act.”);

Nat’l Broad. Co. v. United States, 319 U.S. 190, 225-26 (1943)

(upholding a grant of power to the Federal Communications

Commission to regulate radio broadcasting in the “public

interest”); New York Cent. Sec. Corp. v. United States, 287 U.S.

12, 24-25 (1932) (upholding the power of the Interstate

Commerce Commission to approve railroad consolidations

pursuant to the same “public interest” standard); Lichter v.

United States, 334 U.S. 742, 785-86 (1948) (upholding delegation

to military department secretaries to renegotiate contracts to

recover “excessive profits”); see also Fed. Energy Admin. v.

Algonquin SNG, Inc., 426 U.S. 548, 558-61 (1976) (finding

adequate for nondelegation requirements a mandate that, if the

Secretary of the Treasury found that importation of a good in

particular quantities under particular conditions threatened the

national security, the President was authorized to “adjust” the

imports of such article so as to remove the threat, and thus

declining to read that mandate narrowly to avoid a

nondelegation issue).

4 See, e.g., A.J. Kritikos, Resuscitating the Non-Delegation

Doctrine: A Compromise and an Experiment, 82 Mo. L. Rev. 441,

455 (2017) (describing this delegation as “especially broad”).

15

denial of rehearing en banc) (describing Nat’l Broad.

Co. as “perhaps one of the most ambitious uses of the

intelligible principle test”). Similarly, the Court has

described many post-Schechter and post-Panama Refining cases as providing analogous levels of guidance

that, while broad, still meaningfully constrain the

agency’s discretion. See Whitman, 531 U.S. at 474 (citing examples); Mistretta v. United States, 488 U.S.

361, 372-374 (1989). And at times, the Court has been

able to interpret an ambiguous provision to provide

limiting standards so as to avoid an unconstitutional

delegation, see Am. Petroleum Inst., 448 U.S. at 646;

see also supra § I.A.

In stark contrast, the delegation of authority here

plainly lacks any guiding principle—much less an intelligible one—that cabins the Attorney General’s exercise of delegated authority. Nor can one be read into

the statute. The completely standardless delegation

found in SORNA’s pre-Act offender provision thus

fails any possible articulation of the nondelegation

doctrine. If that doctrine “is to retain any force,” Armour v. City of Indianapolis, 566 U.S. 673, 688, 693

(2012) (Roberts, C.J., dissenting), beyond a mere

canon of statutory construction, this Court must find

a violation here.

To be sure, unconstitutional delegations have

been rare in this nation’s history. See Mistretta, 488

U.S. at 373. But the fact that such challenges usually

fail does not mean the doctrine lacks all force. To put

the matter slightly differently, just because the

Court’s “precedents do not ask for much from government in this area,” see Armour, 566 U.S. at 693 (Roberts, C.J., dissenting), does not mean they ask for

16

nothing at all. The Chief Justice made that observation in the analogous context of an Equal Protection

Clause challenge arguing that a statutory classification did not bear at least a rational relationship to a

legitimate government interest. The subject area of

this case—the nondelegation doctrine—is analogous.

In both contexts the Court has been hesitant, for the

last two generations, to second-guess legislative determinations, whether about the connection between

a classification and a legitimate government interest

or about the amount of discretion appropriately

granted to an executive branch official. But in both

cases, the integrity of the underlying legal rule—each

of which is fundamental to American constitutionalism—requires that it be enforced in the face of a plain

violation.

Likewise, striking down this statute so Congress

can supply the required guidance “do[es] not ask for

much.” Id. As then-Judge Gorsuch recognized, Congress could easily have provided such a standard

here. Nichols, 784 F.3d at 667, 676 (dissenting from

denial of rehearing en banc). To uphold the statute in

the face of this impermissible delegation would mark

a departure from the weight of the Court’s nondelegation jurisprudence, and it would serve as a statement

that there is no longer any limit on Congress’s ability

to delegate away its legislative power.

It may be the case that striking down the pre-Act

offender provision as an unconstitutional delegation

will carry some cost because this Court has already

determined this provision “efficiently resolves what

Congress may well have thought were practical problems arising when the Act sought to apply the new

17

[sex offender] registration requirements to pre-Act offenders.” Reynolds, 565 U.S. at 440. But “the fact that

a given law or procedure is efficient, convenient, and

useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the

primary objectives—or the hallmarks—of democratic

government.” INS v. Chadha, 462 U.S. 919, 944

(1983). Rather, as Justice Gorsuch very recently recognized, “[u]nder the Constitution, the adoption of

new laws restricting liberty is supposed to be a hard

business, the product of an open and public debate

among a large and diverse number of elected representatives.” Dimaya, 138 S. Ct. at 1228 (concurring in

part and concurring in the judgment) (emphasis

added). Given this fundamental truth, the proper

course is to strike down the statute.

This case presents the Court with a rare invitation to reaffirm a fundamental, liberty-reinforcing

principle of American constitutional law that is otherwise difficult to apply. And it presents an opportunity

to do so in a context that does not require this Court

to make new nondelegation law and will therefore do

exceedingly little to hamstring congressional power or

unsettle the Court’s acceptance of broad congressional delegations of authority to administrative

agencies. The Court should accept that invitation.

18

II. The Criminal Nature Of The Pre-Act

Offender Authority SORNA Grants Renders

Its Lack Of Standards Particularly

Problematic.

Should this Court conclude that the pre-Act offender provision satisfies the traditional version of

the intelligible principle standard, it will necessarily

confront the question, avoided in Touby, whether certain delegations require more searching review than

the traditional “intelligible principle” test.

This Court has recognized that it might be appropriate for a more searching standard to apply in some

circumstances. In particular, the Court previously reserved the question whether a more searching standard is required when the authority Congress grants is

the power to define crimes. See Touby, 500 U.S. at

165-66 (reserving that question).5 In Touby, this

5 This question remains unanswered despite the Court upholding the President’s power to prescribe aggravating factors

for purposes of a military court’s decision whether to impose the

death penalty. Loving v. United States, 517 U.S. 748 (1996). The

Loving Court relied heavily on the fact that the President possessed significant Article II-based authority in this area through

his commander-in-chief power. See id. at 772 (“The President’s

duties as Commander in Chief … require him to take responsible and continuing action to superintend the military, including

the courts-martial. The delegated duty [to prescribe aggravating

factors in death penalty cases], then, is interlinked with duties

already assigned to the President by express terms of the Constitution, and the same limitations on delegation do not apply

where the entity exercising the delegated authority itself possesses independent authority over the subject matter.”) (internal

quotation marks omitted); see also id. at 777-78 (Thomas, J., con-

19

Court encountered an argument that the unique—

and uniquely fraught—authority to deem conduct a

crime necessarily means that “something more than

an ‘intelligible principle’ is required when Congress

authorizes another Branch to promulgate regulations

that contemplate criminal sanctions.” Id. The Touby

Court expressly reserved that question, as it concluded that the statute in question—which authorizes

the Attorney General to place drugs on a schedule of

banned substances on a temporary basis—“passes

muster even if greater congressional specificity is required in the criminal context.” Id. at 166 (emphasis

added).

The Court need not resolve the question whether

more searching review is required here because the

pre-Act offender provision would not withstand scrutiny under even the traditional “intelligible principle”

test. See supra § I. But if it concludes that traditional

nondelegation doctrine is not sufficient to rule for Petitioner, it should rule for Petitioner on the basis that

SORNA involves a uniquely-problematic delegation

that cannot survive more searching review.

More searching review is appropriate because, as

in Touby, the pre-Act offender provision grants the

curring in the judgment) (“There is abundant authority for according Congress and the President sufficient deference in the

regulation of military affairs to uphold the delegation here, and

I see no need to resort to our nonmilitary separation-of-powers

and ‘delegation doctrine’ cases in reaching this conclusion. I

write separately to explain that by concurring in the judgment

in this case, I take no position with respect to Congress’ power to

delegate authority or otherwise alter the traditional separation

of powers outside the military context.”).

20

authority to declare crime. § 20913(d). But the Court

can adopt more searching nondelegation review in

this case without holding that all delegations in the

criminal context are subject to heightened review.

The pre-Act offender provision goes beyond a mere

grant of power to the nation’s chief criminal prosecutor to declare crimes, § 20913(d), because it also authorizes him to base those crimes on conduct that has

already occurred. Id. Thus, more searching review

can be adopted without drawing the fine line that the

Court avoided in Touby.

Applying a more searching standard—or at least

continuing to apply the intelligible principle test

meaningfully—in the narrow context of a delegation

with criminal and retroactive consequences is consistent with this Court’s cases and basic separation of

powers principles.

The power to declare crimes is particularly

fraught and features prominently in this Court’s nondelegation jurisprudence. See, e.g., Fahey v. Mallonee,

332 U.S. 245, 249 (1947) (explaining that in both Panama Refining, 293 U.S. 388 and A.L.A. Schechter

Poultry Corp., 295 U.S. 495, Chief Justice Hughes

“emphasized” the fact that those cases “dealt with delegation of a power to make federal crimes of acts that

never had been such before”); Mistretta, 488 U.S. at

373 n.7 (citing Fahey’s discussion); United States v.

Robel, 389 U.S. 258, 269, 275 (1967) (Brennan, J., concurring in the result) (“The area of permissible indefiniteness

[in

congressional

delegations]

narrows … when the regulation invokes criminal

sanctions and potentially affects fundamental

21

rights … because the numerous deficiencies connected with vague legislative directives … are far

more serious when liberty and the exercise of fundamental rights are at stake.”); cf. Nat’l Cable Television

Ass’n v. United States, 415 U.S. 336, 342-43 (1974)

(recognizing the nondelegation problems that would

arise if a statute was construed as delegating to an

agency the power to impose a tax, and for that reason

construing an administrative levy as a fee instead).

The “awesome and dangerous power[],” Ginzburg v.

United States, 383 U.S. 463, 477 (1966) (Black, J., dissenting), to impose criminal punishment cannot be

triggered without sufficient legislative guidance

about whether the particular conduct merits such

punishment.

Unfettered discretion for the Executive to declare

criminal liability also offends basic notions of separation of powers. Since the beginning of the Republic,

the separation of powers has been understood as a

critical guarantor of individual liberty. See, e.g. The

Federalist No. 47 at 313 (Madison) (Modern Library,

1941) (“The accumulation of all powers, legislative,

executive, and judiciary, in the same hands … may

justly be pronounced the very definition of tyranny.”);

Clinton v. City of New York, 524 U.S. 417, 449, 450

(1998) (Kennedy, J., concurring) (“Liberty is always at

stake when one or more of the branches seek to transgress the separation of powers.”); Rachael E. Barkow,

Separation of Powers and the Criminal Law, 58 Stan.

L. Rev. 989, 990 (2006) (“It is a familiar premise that

the Constitution separates legislative, executive, and

judicial power to prevent tyranny and protect liberty.”).

22

That liberty is most at stake in the context of

criminal prosecution. See, e.g., Rebecca L. Brown,

Caging the Wolf: Seeking a Constitutional Home for

the Independent Counsel, 83 Minn. L. Rev. 1269, 1274

(1999) (“The combination of legislative power with enforcement power constitutes a very grave affront to

the separation of powers, and if carried out in the

prosecution of a criminal case, presents the even

stronger constitutional objection of threatening individual liberty under procedures that themselves are

in contravention of constitutional norms.”). It is wellrecognized in this Court’s jurisprudence that the

power of criminal law enforcement is a fraught one

that requires careful adherence to constitutional safeguards—not just those reflected in the Bill of Rights,

but also the overarching protections provided by the

insistence on separating governmental powers. See

Clinton, 524 U.S. at 450 (Kennedy, J., concurring) (“It

would be a grave mistake … to think a Bill of Rights

in Madison’s scheme then or in sound constitutional

theory now renders separation of powers of lesser importance.”); see also Dimaya, 138 S. Ct. at 1228 (Gorsuch, J., concurring in part and concurring in the

judgment) (“Under the Constitution, the adoption of

new laws restricting liberty is supposed to be a hard

business, the product of an open and public debate

among a large and diverse number of elected representatives.” (emphasis added)); Robel, 389 U.S. at 275

(Brennan, J., concurring in the result). Thus, and as

important as the separation of powers is in all contexts of government action, it bears repeating that

this is a case whose criminal nature renders that insistence all the more urgent. See, e.g., United States

v. Ward, 448 U.S. 242, 248 (1980) (“The distinction

23

between a civil penalty and a criminal penalty is of

some constitutional import.”).

The intrusion on liberty caused by a regulation

with criminal consequences—and the particular separation of powers concerns such intrusions raise—

might alone reinforce the need for meaningful nondelegation review. But the need for meaningful review is all the more present here given the retroactive

nature of the pre-Act offender provision. Determining

a statute’s retroactive scope is principally the domain

of Congress, such that Congress is required to speak

clearly when a law is to have retroactive effect. See

Landgraf v. USI Film Prods., 511 U.S. 244, 268

(1994); Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 208-09 (1988). 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. Such careful weighing cannot be guaranteed when Congress delegates that authority to an administrative agency without any

guidance about the “statute’s proper [retroactive]

reach.” See id. at 280; Bowen, 488 U.S at 208-09

(1988) (“[A] statutory grant of legislative rulemaking

authority will not, as a general matter, be understood

to encompass the power to promulgate retroactive

rules unless that power is conveyed by Congress in

express terms.”). In circumstances such as these, a

regulation is given retroactive reach without any assurance that such reach was what Congress intended.

At a minimum, these separation of powers considerations mean that this Court should think twice before abandoning its existing restrictions on legislative

delegations and reducing its separation of powers

24

foundations to mere “parchment barriers.” The Federalist No. 48 at 321 (Madison) (Modern Library, 1941).

Indeed, to the extent that it might ever make sense to

abandon that jurisprudence, it would make bad sense

to do so in the context that was of central concern to

those Courts originally constructing it. See Fahey, 332

U.S. at 249. This case presents a clear violation of a

structural safeguard of liberty, and thus a strong argument against the Court using it as the occasion to

renege on that promise.

But even if that is not enough, the criminal context of this delegation, infused as it is with retroactive

effect, justifies subjecting this delegation to a more

searching standard than the traditional rule requires.

This Court has not yet had occasion to address what

more searching review would look like, see Touby, 500

U.S. at 166-67, and there is no need to define the additional limitations that a more meaningful nondelegation review would entail. The utterly barebones

nature of the pre-Act offender provision could not survive any review that is more searching than the traditional intelligible principle test. Thus, even if this

Court determines that the challenged provision somehow survives the intelligible principle test, it should

conclude that it must be struck down under the more

searching analysis required of delegations of this

type.

25

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

Andrew D. Silverman

Counsel of Record

Benjamin Chagnon

Alison M. Kilmartin

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

asilverman@orrick.com

Date June 1, 2018

1a

Appendix A*

1.

William D. Araiza

Professor of Law

Brooklyn Law School

250 Joralemon Street

Brooklyn, NY 11201

2.

Miriam Baer

Professor of Law

Brooklyn Law School

250 Joralemon Street

Brooklyn, NY 11201

3.

Marshall J. Breger

Professor of Law

The Catholic University of America

Columbus School of Law

3600 John McCormack Road, N.E.

Washington, DC 20064

4.

Joshua Dressler

Distinguished University Professor Emeritus

Frank R. Strong Chair in Law Emeritus

The Ohio State University

Moritz College of Law

55 West 12th Avenue

Columbus, OH 43210

* Institutions are listed for affiliation purposes only. All signatories are participating in their individual capacities and not

on behalf of their institutions.

2a

5.

Cynthia Godsoe

Associate Professor of Law

Brooklyn Law School

250 Joralemon Street

Brooklyn, NY 11201

6.

Dr. Melissa Hamilton

Senior Lecturer in Law and Criminal Justice

University of Surrey

Guildford, Surrey GU2 7XH, United Kingdom

7.

Babe Howell

Professor

CUNY School of Law

2 Court Square

Long Island City, NY 11101

8.

Linda Jellum

Ellison Capers Palmer Sr. Professor of Law

Mercer University School of Law

1021 Georgia Avenue

Macon, GA 31207

9.

Karl M. Manheim

Professor in Residence

Loyola Law School

919 Albany Street

Los Angeles, CA 90015

3a

10.

Michael J.Z. Mannheimer

Professor of Law

Associate Dean for Faculty Development

Chase College of Law

Northern Kentucky University

518 Nunn Hall

Highland Heights, KY 41099

11.

Andrew F. Popper

Ann Loeb Bronfman Distinguished Professor

of Law and Government

American University

Washington College of Law

4300 Nebraska Avenue N.W.

Washington, DC 20016

12.

Richard C. Reuben

James Lewis Parks Professor of Law

University of Missouri School of Law

203 Hulston Hall

Columbia, MO 65211

13.

Edward P. Richards

Clarence W. Edwards Professor of Law

Director, Climate Change Law and Policy

Project

Louisiana State University

Herbert Law Center

1 East Campus Drive

Baton Rouge, LA 70803

4a

14.

Ric Simmons

Chief Justice Thomas J. Moyer Professor for

the Administration of Justice and Rule of Law

The Ohio State University

Moritz College of Law

55 West 12th Avenue

Columbus, OH 43210

15.

Evan C. Zoldan

Associate Professor of Law

University of Toledo College of Law

1825 West Rocket Drive

Toledo, OH 43606