139 S. Ct. 2116 (2019)
In 2006 Congress enacted the Sex Offender Registration and Notification Act.1 The statute requires sex offenders to register in the jurisdictions where they live, work, and attend school.2 It also directs the Attorney General to specify the applicability of its requirements to offenders convicted before the Act’s enactment and to prescribe rules for their registration.3 At the time of enactment the nation’s population of sex offenders exceeded 500,000, and Congress left the treatment of these pre-Act offenders to the Attorney General after concluding that immediate application would impose costly burdens on states and localities.4
The Attorney General first left pre-Act offenders unregulated for six months after enactment.5 An interim rule issued in 2007 then required all pre-Act offenders to follow the same registration rules as post-Act offenders.6 Subsequent Attorneys General issued varying guidelines, with one directing states to register only some pre-Act offenders, another requiring registration only for those convicted of a new felony after enactment, and still others differing on whether pre-Act offenders could receive credit for time already spent in the community.7
Herman Gundy pleaded guilty in 2005 to possessing child pornography.8 He was released from prison five years later.9 He was arrested in 2012 for failing to register as a sex offender under the rules then prescribed for pre-Act offenders and faced an additional ten-year prison term.10
Gundy was convicted in 2012.11 He argued in the district court that Congress had unconstitutionally delegated legislative power when it authorized the Attorney General to specify the applicability of SORNA’s requirements.12 The district court rejected the argument.13 The Second Circuit affirmed, relying on its precedent that SORNA does not unconstitutionally delegate legislative authority.14 The Supreme Court granted certiorari.
Whether the statute’s conferral on the Attorney General of the power to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders violates the nondelegation doctrine?15
A statutory delegation is constitutional if Congress has laid down an “intelligible principle” to guide the delegee’s exercise of authority, as the Court has held in a long line of cases from J. W. Hampton to the present.16
No. SORNA’s delegation to the Attorney General easily passes constitutional muster.17 The provision directs that the Attorney General “specify the applicability” of SORNA’s requirements to pre-Act offenders as shown in the established facts of the case.18 The word “specify” is not a delegation of legislative authority but a conferral of authority to make a determination about a particular factual circumstance.19 The Attorney General’s task is to apply SORNA to pre-Act offenders, not to create a generally applicable rule.20
The provision also cabins the Attorney General’s discretion by requiring him to consider whether SORNA’s registration requirements should apply to pre-Act offenders as a group.21 The Attorney General cannot simply decide that some pre-Act offenders must register and others need not; he must make a categorical determination that applies to all such offenders.22 Finally, the provision is part of a broader statutory scheme that constrains the Attorney General’s discretion through specific directives and standards.23
The delegation in SORNA does not violate the nondelegation doctrine.24
Related opinions on this issue
Justice Alito concurred in the judgment because he cannot say that the statute is unconstitutional under the nondelegation doctrine as it has been interpreted by this Court.25 Since 1935 the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.26 If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, he would support that effort.27
But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.28 Because he cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, he votes to affirm.29
Joined by The Chief Justice And Justice Thomas
Justice Gorsuch dissented, concluding that the delegation in 34 U. S. C. §20913(d) violates the constitutional prohibition on the legislative branch delegating its legislative power to the executive branch.30 The Constitution vests all legislative Powers in Congress, meaning Congress may not transfer powers which are strictly and exclusively legislative.31 In his view the statute authorizes the Attorney General to specify the applicability of SORNA’s registration requirements to pre-Act offenders, which is a core legislative function.32
The Attorney General is not merely filling up the details of a legislative scheme but is deciding the scope of a statutory regime.33 The intelligible-principle test has been applied too leniently, and the doctrine should not be a dead letter because the Constitution demands that Congress make the important policy decisions.34