Opinion · Supreme Court of the United States
Gundy v. United States
588 U.S. 128
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 2019-06-20
- Topic
- bankruptcy
holding that a delegation of authority to an agency is constitutional so long as “Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform’” | holding that a delegation of authority to an agency is constitutional so long as “Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform’” | explaining that the Court interprets statutory provisions—including delegations—by reading the text “in ‘context’ and in light of the statutory ‘purpose’” | noting that “a nondelegation inquiry always begins (and often almost ends) with statutory interpretation” and that “[t]he constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion | rejecting the petitioner’s preferred reading of the statute, under which the Court “would face a nondelegation question” | explaining that the delegation was narrow because it (1 | describing statutory interpretation as a “holistic endeavor, which deter- mines meaning by looking not to isolated words, but to text in context, along with purpose and history” | describing statutory interpretation as a “holistic endeavor, which deter- mines meaning by looking not to isolated words, but to text in context, along with purpose and history” | addressing merits of nondelegation challenge to provision of the federal Sex Offender Registration and Notification Act authorizing Attorney General to specify applicability of registration requirements to certain offenders | rejecting defendant’s construction of statutory language as divorced from the statute’s context and history | rejecting defendant’s construction of statutory language as divorced from the statute’s context and history | rejecting defendant’s construction of statutory language as divorced from the statute’s context and history | applying the “intelligible principle” test to statute giving Attorney General authority to require sex offenders convicted before its passage to register pursuant to its requirements, which authorize prosecution for failure to register | analyzing Congress’s choice of “verb tense” to discern the meaning of a statute | Gorsuch, J., dissenting, joined by Roberts, 38 Case: 20-51016 Document: 00516601811 Page: 39 Date Filed: 01/06/2023 No. 20-51016 C.J., and Thomas, J. | “[I]ndeed, once a court interprets the statute, it may find that the constitutional question all but answers itself.” | "It is wisdom and humility alike that this Court has always upheld such 'necessities of government.'" | "It is wisdom and humility alike that this Court has always upheld such 'necessities of government.'" | public non-delegation question is “whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion” | Congress did not make an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders | "Delegation is constitutional so long as the legislative body provides an 'intelligible principle' to direct the exercise of delegated authority" | Congress “may not transfer to another branch ‘powers which are strictly and exclusively legislative.’” (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825) | “[The Supreme] Court has often looked to Congress’[s] choice of verb tense to ascertain a statute’s temporal reach . . . .” | “[I]ndeed, once a court interprets the statute, it may find that the constitutional question all but answers itself.” | “Congress may confer substantial discretion on executive agencies to implement and enforce the laws.” | “[B]eyond context and structure, [courts] often look[] to ‘history [and] purpose’ to divine the meaning of language.” (fourth alteration in original) (quoting Maracich v. Spears, 570 U.S. 48, 76 (2013)) | “[S]tatutory interpretation
Citator
- Cited by
- 65 opinions
(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337
.
SUPREME COURT OF THE UNITED STATES
Syllabus
GUNDY v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 17–6086. Argued October 2, 2018—Decided June 20, 2019
Congress has sought, for the past quarter century, to combat sex crimes
and crimes against children through sex-offender registration
schemes. The Sex Offender Registration and Notification Act (SORNA)
makes more “uniform and effective” the prior “patchwork” of reg-
istration systems. Reynolds v. United States, 565 U. S. 432, 435
. To that end, it requires a broader range of sex offenders to register and backs up those requirements with criminal penalties. Section 20913 elaborates the “[i]nitial registration” requirements for sex offenders.34 U. S. C. §§20913
(b), (d). Subsection (b) sets out the general rule: An offender must register “before completing a sentence of imprison- ment with respect to the offense giving rise to the registration re- quirement.” §20913(b). Subsection (d) addresses the “[i]nitial regis- tration of sex offenders unable to comply with subsection (b).” The provision states that, for individuals convicted of a sex offense before SORNA’s enactment (“pre-Act offenders”), the Attorney General “shall have the authority” to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registra- tion.” §20913(d). Under that delegated authority, the Attorney Gen- eral issued a rule specifying that SORNA’s registration requirements apply in full to pre-Act offenders. Petitioner Herman Gundy, a pre- Act offender, was convicted of failing to register. Both the District Court and the Second Circuit rejected his claim that Congress uncon- stitutionally delegated legislative power when it authorized the At- torney General to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders. Held: The judgment is affirmed.695 Fed. Appx. 639
, affirmed.
2 GUNDY v. UNITED STATES
Syllabus
JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and
JUSTICE SOTOMAYOR, concluded that §20913(d) does not violate the
nondelegation doctrine. Pp. 4–18.
(a) Article I of the Constitution provides that “[a]ll legislative Pow-
ers herein granted shall be vested in a Congress of the United
States.” §1. Based on that provision, this Court explained early on
that Congress may not transfer to another branch “powers which are
strictly and exclusively legislative.” Wayman v. Southard, 10 Wheat. 1
, 42–43. But Congress may confer substantial discretion on execu-
tive agencies to implement and enforce the laws. Accordingly, the
Court has held, time and time again, that a statutory delegation is
constitutional as long as Congress “ ‘lay[s] down by legislative act an
intelligible principle to which the person or body authorized to [exer-
cise that authority] is directed to conform.’ ” Mistretta v. United
States, 488 U. S. 361, 372
. Given that standard, a nondelegation in-
quiry always begins (and often almost ends) with statutory interpre-
tation. Only after a court has determined a challenged statute’s
meaning can it decide whether the law sufficiently guides executive
discretion to accord with Article I. Pp. 4–6.
(b) This Court has already interpreted §20913(d) to require the At-
torney General to apply SORNA to all pre-Act offenders as soon as
feasible. In Reynolds v. United States, 565 U. S. 432
, the Court held
that SORNA’s registration requirements did not apply of their own
force to pre-Act offenders. But in doing so, it made clear how far
SORNA limited the Attorney General’s authority and thereby effec-
tively resolved this case. The Court started from the premise that
Congress meant for SORNA’s registration requirements to apply to
pre-Act offenders, based on the Act’s statutory purpose, its definition
of sex offender, and its history. But the Court found that Congress
had conditioned pre-Act offenders’ duty to register on a prior ruling
from the Attorney General because “instantaneous registration” of
pre-Act offenders “might not prove feasible.” Id.,
at 440–441. SORNA,
the majority explained, created a “practical problem[ ]” because
it would require “newly registering or reregistering a large number of
pre-Act offenders.” Id., at 440
. In addition, many pre-Act offenders
were already out of prison and could not comply with the require-
ment that they register before completing their sentences. Congress
therefore “[a]sk[ed] the Department of Justice, charged with respon-
sibility for implementation, to examine [the issues] and to apply the
new registration requirements accordingly.” Id., at 441
. On that un-
derstanding, the Attorney General’s role under §20913(d) was im-
portant but limited: It was to apply SORNA to pre-Act offenders as
soon as he thought it feasible to do so. Pp. 6–10.
(c) Gundy claims that §20913(d) empowers the Attorney General to
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Syllabus
do whatever he wants as to pre-Act offenders, including exempting
them from registration forever. He bases that argument on the first
half of §20913(d), isolated from everything else. But this Court has
long refused to construe words “in a vacuum,” as Gundy attempts.
Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809
. Rather, the Court interprets statutory provisions—including delegations—by reading the text in “context” and in light of the statutory “purpose.” National Broadcasting Co. v. United States,319 U. S. 190, 214, 216
. Applying that approach here, it is clear that §20913(d) requires the Attorney General to register pre-Act offenders as soon as feasible. In SORNA’s statement of purpose, Congress announced that “to protect the public,” it was “establish[ing] a comprehensive national system for the registration” of “sex offenders.” §20901. The term “compre- hensive” means “all-encompassing” or “sweeping.” That description could not fit the system SORNA created if the Attorney General could decline, for any reason or no reason at all, to apply SORNA to all pre- Act offenders. The Act’s definition of “sex offender” makes the same point. Under that definition, a “sex offender” is “an individual who was convicted of a sex offense.” §20911(1). Congress’s use of the past tense shows that SORNA was not merely forward-looking and con- firms that the delegation allows only temporary exclusions. The Act’s legislative history backs that all up, by showing that the need to reg- ister pre-Act offenders was front and center in Congress’s thinking. The text and title of §20913(d) then pinpoint one of the practical problems discussed above: At the moment of SORNA’s enactment, many pre-Act offenders were “unable to comply” with the Act’s initial registration requirements. §20913(d). In identifying that issue, §20913(d) itself reveals the nature of the delegation to the Attorney General. It was to give him the time needed (if any) to address the various implementation issues involved in getting pre-Act offenders into the registration system. Thus, contrary to Gundy, “specify the applicability” does not mean “specify whether to apply SORNA” to pre-Act offenders at all. The phrase instead means “specify how to apply SORNA” to pre-Act offenders if transitional difficulties require some delay. And no Attorney General has used §20913(d) in any more expansive way. Pp. 10–15. (d) Section 20913(d)’s delegation therefore falls well within consti- tutional bounds. As noted, a delegation is constitutional so long as Congress sets out an intelligible principle to guide the delegee’s exer- cise of authority. The standards for that principle are not demand- ing. See Whitman v. American Trucking Assns., Inc.,531 U. S. 457
,
474–475. Only twice in this country’s history has the Court found a
delegation excessive, in each case because “Congress had failed to ar-
ticulate any policy or standard” to confine discretion. Mistretta, 488
4 GUNDY v. UNITED STATES
Syllabus
U. S., at 373, n. 3; see A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S. 495
; Panama Refining Co. v. Ryan,293 U. S. 388
.
By contrast, the Court has over and over upheld even very broad del-
egations. See, e.g., National Broadcasting Co. v. United States, 319 U. S. 190
. In that context, the delegation in SORNA easily passes
muster. The authority §20913(d) confers, as compared to the delega-
tions the Court has upheld in the past, is distinctly small bore. In-
deed, if SORNA’s delegation is unconstitutional, then most of Gov-
ernment is unconstitutional—dependent as Congress is on the need
to give discretion to executive officials to implement its programs.
Pp. 15–18.
JUSTICE ALITO concluded that he cannot say that the statute at is-
sue lacks an adequately discernable standard under the nondelega-
tion approach the Court has taken for the past 84 years, but would
reconsider that approach in an appropriate case. P. 1.
KAGAN, J., announced the judgment of the Court and delivered an
opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
ALITO, J., filed an opinion concurring in the judgment. GORSUCH, J.,
filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J.,
joined. KAVANAUGH, J., took no part in the consideration or decision of
the case.
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the
Opinion of K Court
AGAN, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–6086
_________________
HERMAN AVERY GUNDY, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 20, 2019]
JUSTICE KAGAN announced the judgment of the Court
and delivered an opinion, in which JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join.
The nondelegation doctrine bars Congress from trans-
ferring its legislative power to another branch of Govern-
ment. This case requires us to decide whether 34 U. S. C. §20913
(d), enacted as part of the Sex Offender Registra-
tion and Notification Act (SORNA), violates that doctrine.
We hold it does not. Under §20913(d), the Attorney Gen-
eral must apply SORNA’s registration requirements as
soon as feasible to offenders convicted before the statute’s
enactment. That delegation easily passes constitutional
muster.
I
Congress has sought, for the past quarter century, to
combat sex crimes and crimes against children through
sex-offender registration schemes. In 1994, Congress first
conditioned certain federal funds on States’ adoption of
registration laws meeting prescribed minimum standards.
See Jacob Wetterling Crimes Against Children and Sex-
ually Violent Offender Registration Act, §170101, 108
2 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
Stat. 2038, 42 U. S. C. §14071
et seq. (1994 ed.). Two years later, Congress strengthened those standards, most notably by insisting that States inform local communities of registrants’ addresses. See Megan’s Law, §2,110 Stat. 1345
, note following42 U. S. C. §13701
(1994 ed., Supp. II). By that time, every State and the District of Columbia had enacted a sex-offender registration law. But the state statutes varied along many dimensions, and Congress came to realize that their “loopholes and deficiencies” had allowed over 100,000 sex offenders (about 20% of the total) to escape registration. See H. R. Rep. No. 109–218, pt. 1, pp. 20, 23–24, 26 (2005) (referring to those sex offenders as “missing” or “lost”). In 2006, to address those failings, Congress enacted SORNA. See120 Stat. 590
,34 U. S. C. §20901
et seq. SORNA makes “more uniform and effective” the prior “patchwork” of sex-offender registration systems. Reyn- olds v. United States,565 U. S. 432, 435
(2012). The Act’s express “purpose” is “to protect the public from sex offend- ers and offenders against children” by “establish[ing] a comprehensive national system for [their] registration.” §20901. To that end, SORNA covers more sex offenders, and imposes more onerous registration requirements, than most States had before. The Act also backs up those requirements with new criminal penalties. Any person required to register under SORNA who knowingly fails to do so (and who travels in interstate commerce) may be imprisoned for up to ten years. See18 U. S. C. §2250
(a). The basic registration scheme works as follows. A “sex offender” is defined as “an individual who was convicted of” specified criminal offenses: all offenses “involving a sexual act or sexual contact” and additional offenses “against a minor.”34 U. S. C. §§20911
(1), (5)(A), (7). Such
an individual must register—provide his name, address,
and certain other information—in every State where he
resides, works, or studies. See §§20913(a), 20914. And he
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Kagan,
Opinion of K AGAN, J.
must keep the registration current, and periodically report
in person to a law enforcement office, for a period of be-
tween fifteen years and life (depending on the severity of
his crime and his history of recidivism). See §§20915,
20918.
Section 20913—the disputed provision here—elaborates
the “[i]nitial registration” requirements for sex offenders.
§§20913(b), (d). Subsection (b) sets out the general rule:
An offender must register “before completing a sentence of
imprisonment with respect to the offense giving rise to the
registration requirement” (or, if the offender is not sen-
tenced to prison, “not later than [three] business days
after being sentenced”). Two provisions down, subsection
(d) addresses (in its title’s words) the “[i]nitial registration
of sex offenders unable to comply with subsection (b).”
The provision states:
“The Attorney General shall have the authority to
specify the applicability of the requirements of this
subchapter to sex offenders convicted before the en-
actment of this chapter . . . 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).”
Subsection (d), in other words, focuses on individuals
convicted of a sex offense before SORNA’s enactment—a
group we will call pre-Act offenders. Many of these indi-
viduals were unregistered at the time of SORNA’s enact-
ment, either because pre-existing law did not cover them
or because they had successfully evaded that law (so were
“lost” to the system). See supra, at 2. And of those poten-
tial new registrants, many or most could not comply with
subsection (b)’s registration rule because they had already
completed their prison sentences. For the entire group of
pre-Act offenders, once again, the Attorney General “shall
have the authority” to “specify the applicability” of
4 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
SORNA’s registration requirements and “to prescribe
rules for [their] registration.”
Under that delegated authority, the Attorney General
issued an interim rule in February 2007, specifying that
SORNA’s registration requirements apply in full to “sex
offenders convicted of the offense for which registration is
required prior to the enactment of that Act.” 72 Fed. Reg. 8897
. The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders.75 Fed. Reg. 81850
. That rule has remained the same to this day. Petitioner Herman Gundy is a pre-Act offender. The year before SORNA’s enactment, he pleaded guilty under Maryland law for sexually assaulting a minor. After his release from prison in 2012, Gundy came to live in New York. But he never registered there as a sex offender. A few years later, he was convicted for failing to register, in violation of §2250. He argued below (among other things) that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders. §20913(d). The District Court and Court of Appeals for the Second Circuit rejected that claim, see695 Fed. Appx. 639
(2017), as had every other court (including eleven Courts of Appeals) to consider the issue. We nonetheless granted certiorari.583 U. S. __
(2018). Today, we join the consensus and affirm.
II
Article I of the Constitution provides that “[a]ll legisla-
tive Powers herein granted shall be vested in a Congress
of the United States.” §1. Accompanying that assignment
of power to Congress is a bar on its further delegation.
Congress, this Court explained early on, may not transfer
to another branch “powers which are strictly and exclu-
sively legislative.” Wayman v. Southard, 10 Wheat. 1
, 42–
43 (1825). But the Constitution does not “deny[ ] to the
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Kagan,
Opinion of K AGAN, J.
Congress the necessary resources of flexibility and practi-
cality [that enable it] to perform its function[s].” Yakus v.
United States, 321 U. S. 414, 425
(1944) (internal quota- tion marks omitted). Congress may “obtain[ ] the assis- tance of its coordinate Branches”—and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws. Mistretta v. United States,488 U. S. 361, 372
(1989). “[I]n our increasingly complex society, replete with ever changing and more technical problems,” this Court has understood that “Con- gress simply cannot do its job absent an ability to delegate power under broad general directives.”Ibid.
So we have held, time and again, that a statutory delegation is consti- tutional as long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body au- thorized to [exercise the delegated authority] is directed to conform.”Ibid.
(quoting J. W. Hampton, Jr., & Co. v. United States,276 U. S. 394, 409
(1928); brackets in original). Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpreta- tion. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion. So the answer requires construing the chal- lenged statute to figure out what task it delegates and what instructions it provides. See, e.g., Whitman v. Amer- ican Trucking Assns., Inc.,531 U. S. 457, 473
(2001) (con- struing the text of a delegation to place constitutionally adequate “limits on the EPA’s discretion”); American Power & Light Co. v. SEC,329 U. S. 90
, 104–105 (1946)
(interpreting a statutory delegation, in light of its “pur-
pose[,] factual background[, and] context,” to provide
sufficiently “definite” standards). Only after a court has
determined a challenged statute’s meaning can it decide
whether the law sufficiently guides executive discretion to
accord with Article I. And indeed, once a court interprets
6 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
the statute, it may find that the constitutional question all
but answers itself.
That is the case here, because §20913(d) does not give
the Attorney General anything like the “unguided” and
“unchecked” authority that Gundy says. Brief for Peti-
tioner 37, 45. The provision, in Gundy’s view, “grants the
Attorney General plenary power to determine SORNA’s
applicability to pre-Act offenders—to require them to
register, or not, as she sees fit, and to change her policy for
any reason and at any time.” Id., at 42. If that were so,
we would face a nondelegation question. But it is not.
This Court has already interpreted §20913(d) to say some-
thing different—to require the Attorney General to apply
SORNA to all pre-Act offenders as soon as feasible. See
Reynolds, 565 U. S., at 442–443. And revisiting that issue
yet more fully today, we reach the same conclusion. The
text, considered alongside its context, purpose, and history,
makes clear that the Attorney General’s discretion
extends only to considering and addressing feasibility
issues. Given that statutory meaning, Gundy’s constitu-
tional claim must fail. Section 20913(d)’s delegation falls
well within permissible bounds.
A
This is not the first time this Court has had to interpret
§20913(d). In Reynolds, the Court considered whether
SORNA’s registration requirements applied of their own
force to pre-Act offenders or instead applied only once the
Attorney General said they did. We read the statute as
adopting the latter approach. But even as we did so, we
made clear how far SORNA limited the Attorney General’s
authority. And in that way, we effectively resolved the
case now before us.
Everything in Reynolds started from the premise that
Congress meant for SORNA’s registration requirements to
apply to pre-Act offenders. The majority recounted
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Kagan,
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SORNA’s “basic statutory purpose,” found in its text, as
follows: “the ‘establish[ment of] a comprehensive national
system for the registration of [sex] offenders’ that includes
offenders who committed their offenses before the Act
became law.” 565 U. S., at 442
(quoting §20901; emphasis and alterations in original; citation omitted). That pur- pose, the majority further noted, informed SORNA’s “broad[ ]” definition of “sex offender,” which “include[s] any ‘individual who was convicted of a sex offense.’ ” Id., at 442 (quoting §20911(1); emphasis added). And those two provisions were at one with “[t]he Act’s history.” Id., at 442. Quoting statements from both the House and the Senate about the sex offenders then “lost” to the system, Reynolds explained that the Act’s “supporters placed considerable importance upon the registration of pre-Act offenders.” Ibid. In recognizing all this, the majority (temporarily) bonded with the dissenting Justices, who found it obvious that SORNA was “meant to cover pre-Act offenders.” Id., at 448 (Scalia, J., dissenting). And indeed, the dissent emphasized that common ground, remarking that “the Court acknowledges” and “rightly believes” that registration of pre-Act offenders was “what the statute sought to achieve.” Id., at 448–449.1 But if that was so, why had Congress (as the majority held) conditioned the pre-Act offenders’ duty to register on a prior “ruling from the Attorney General”? Id., at 441. The majority had a simple answer: “[I]nstantaneous regis- tration” of pre-Act offenders “might not prove feasible,” or —————— 1 As to that point, the dissent criticized the majority only for basing its view in part on legislative history.565 U. S., at 448
, n. (opinion of Scalia, J.). The dissent found the majority’s excursion into history “quite superfluous” given that the “text of the Act itself makes clear that Congress sought” to ensure the registration of all pre-Act offend- ers.Ibid.
In reaching that conclusion, the dissent relied on the Act’s
express statement of purpose and its “sex offender” definition. See
infra, at 11–13.
8 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
“[a]t least Congress might well have so thought.” Id.,
at 440–441, 443. Here, the majority explained that SORNA’s requirements diverged from prior state law. Seeid., at 440
; supra, at 2. Some pre-Act offenders (as defined by SORNA) had never needed to register before; others had once had to register, but had fulfilled their old obligations. And still others (the “lost” or “missing” offenders) should have registered, but had escaped the system. As a result, SORNA created a “practical problem[ ]”: It would require “newly registering or reregistering a large number of pre- Act offenders.” Reynolds,565 U. S., at 440
(internal quo- tation marks omitted). And attached to that broad feasi- bility concern was a more technical one. Recall that under SORNA “a sex offender must initially register before completing his ‘sentence of imprisonment.’ ”Id.,
at 439 (quoting §20913(b)); see supra, at 3. But many pre-Act offenders were already out of prison, so could not comply with that requirement. That inability raised questions about “how[] the new registration requirements applied to them.”565 U. S., at 441
. “Congress[’s] solution” to both those difficulties was the same: Congress “[a]sk[ed] the Department of Justice, charged with responsibility for implementation, to examine [the issues] and to apply the new registration requirements accordingly.”Ibid.
On that understanding, the Attorney General’s role
under §20913(d) was important but limited: It was to
apply SORNA to pre-Act offenders as soon as he thought it
feasible to do so. That statutory delegation, the Court
explained, would “involve[] implementation delay.” Id., at
443. But no more than that. Congress had made clear in
SORNA’s text that the new registration requirements
would apply to pre-Act offenders. See id., at 442–445. So
(the Court continued) “there was no need” for Congress to
worry about the “unrealistic possibility” that “the Attorney
General would refuse to apply” those requirements on
some excessively broad view of his authority under
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Kagan,
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§20913(d). Id., at 444–445. Reasonably read, SORNA
enabled the Attorney General only to address (as appro-
priate) the “practical problems” involving pre-Act offend-
ers before requiring them to register. Id., at 440. The
delegation was a stopgap, and nothing more.2
Gundy dismisses Reynolds’s relevance, but his argu-
ments come up short. To begin, he contends that Rey-
nolds spoke “tentative[ly]”—with “might[s], may[s], or
could[s]”—about Congress’s reasons for enacting
§20913(d). Reply Brief 11; see supra, at 7 (quoting such
phrases). Gundy concludes from such constructions—
which are indeed present—that the Court was “not offer-
ing a definitive reading of the statute.” Reply Brief 11.
But the Court used those locutions to convey not its own
uncertainty but Congress’s. The point of the opinion was
that Congress had questions about how best to phase
SORNA’s application to pre-Act offenders, so gave the
Attorney General flexibility on timing. The “mights,
mays, and coulds” were there to describe the legislative
mindset responsible for §20913(d), and thus formed part of
the Court’s own—yes, “definitive”—view of that provision’s
meaning. Anticipating that explanation, Gundy falls back
on the claim that the Court’s account of Congress’s moti-
vations “cannot supply the intelligible principle Congress
failed to enact into law.” Id., at 12 (citing Whitman, 531 U. S., at 473
). But the Court in Reynolds did not invent a standard Congress omitted. Rather, the Court read the statute to contain a standard—again, that the Attorney —————— 2 Once again, the dissent agreed with the Court that §20913(d) could not sensibly be read to give the Attorney General any greater power. “[I]t is simply implausible,” the dissent concluded, “that the Attorney General was given discretion to determine whether coverage of pre-Act offenders (one of the purposes of the Act) should exist.”565 U. S., at 450
(opinion of Scalia, J.). The dissent parted ways with the Court only
in interpreting §20913(d) to provide the Attorney General with even
less authority.
10 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
General should apply SORNA to pre-Act offenders as soon
as feasible. And as the next part of this opinion shows, in
somewhat greater detail than Reynolds thought necessary,
we read the statute in the same way.
B
Recall again the delegation provision at issue. Congress
gave the Attorney General authority to “specify the ap-
plicability” of SORNA’s requirements to pre-Act offenders.
§20913(d). And in the second half of the same sentence,
Congress gave him authority to “prescribe rules for the
registration of any such sex offenders . . . who are unable
to comply with” subsection (b)’s initial registration re-
quirement. Ibid. What does the delegation in §20913(d)
allow the Attorney General to do?
The different answers on offer here reflect competing
views of statutory interpretation. As noted above, Gundy
urges us to read §20913(d) to empower the Attorney Gen-
eral to do whatever he wants as to pre-Act offenders: He
may make them all register immediately or he may ex-
empt them from registration forever (or he may do any-
thing in between). See Brief for Petitioner 41–42; supra,
at 6. Gundy bases that argument on the first half of
§20913(d), isolated from everything else—from the second
half of the same section, from surrounding provisions in
SORNA, and from any conception of the statute’s history
and purpose. Reynolds took a different approach (as does
the Government here), understanding statutory interpre-
tation as a “holistic endeavor” which determines meaning
by looking not to isolated words, but to text in context,
along with purpose and history. United Sav. Assn. of Tex.
v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371
(1988). This Court has long refused to construe words “in a vacuum,” as Gundy attempts. Davis v. Michigan Dept. of Treasury,489 U. S. 803, 809
(1989). “It is a fundamental
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(2019) 11
Kagan,
Opinion of K AGAN, J.
canon of statutory construction that the words of a statute
must be read in their context and with a view to their
place in the overall statutory scheme.” National Assn. of
Home Builders v. Defenders of Wildlife, 551 U. S. 644, 666
(2007) (internal quotation marks omitted); see Utility Air Regulatory Group v. EPA,573 U. S. 302
, 321 (2014) (“[R]easonable statutory interpretation must account for both the specific context in which . . . language is used and the broader context of the statute as a whole” (internal quotation marks omitted)). And beyond context and struc- ture, the Court often looks to “history [and] purpose” to divine the meaning of language. Maracich v. Spears,570 U. S. 48, 76
(2013) (internal quotation marks omitted). That non-blinkered brand of interpretation holds good for delegations, just as for other statutory provisions. To define the scope of delegated authority, we have looked to the text in “context” and in light of the statutory “pur- pose.” National Broadcasting Co. v. United States,319 U. S. 190, 214, 216
(1943) (internal quotation marks omit- ted); see American Power & Light,329 U. S., at 104
(stat-
ing that the delegation at issue “derive[d] much meaning-
ful content from the purpose of the Act, its factual
background and the statutory context”). In keeping with
that method, we again do so today.
So begin at the beginning, with the “[d]eclaration of
purpose” that is SORNA’s first sentence. §20901. There,
Congress announced (as Reynolds noted, see supra, at 6–7)
that “to protect the public,” it was “establish[ing] a com-
prehensive national system for the registration” of “sex
offenders and offenders against children.” §20901. The
term “comprehensive” has a clear meaning—something
that is all-encompassing or sweeping. See, e.g., Webster’s
Third New International Dictionary 467 (2002) (“covering
a matter under consideration completely or nearly com-
pletely”); New Oxford American Dictionary 350 (2d ed.
2005) (“complete; including all or nearly all elements or
12 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
aspects of something”). That description could not fit the
system SORNA created if the Attorney General could
decline, for any reason or no reason at all, to apply
SORNA to all pre-Act offenders. After all, for many years
after SORNA’s enactment, the great majority of sex of-
fenders in the country would be pre-Act offenders. If
Gundy were right, all of those offenders could be exempt
from SORNA’s registration requirements. So the mis-
match between SORNA’s statement of purpose and Gun-
dy’s view of §20913(d) is as stark as stark comes. Re-
sponding to that patent disparity, Gundy urges us to
ignore SORNA’s statement of purpose because it is “located
in the Act’s preface” rather than “tied” specifically to
§20913(d). Brief for Petitioner 46. But the placement of
such a statement within a statute makes no difference.
See A. Scalia & B. Garner, Reading Law: The Interpreta-
tion of Legal Texts 220 (2012). Wherever it resides, it is
“an appropriate guide” to the “meaning of the [statute’s]
operative provisions.” Id., at 218. And here it makes clear
that SORNA was supposed to apply to all pre-Act offend-
ers—which precludes Gundy’s construction of §20913(d).
The Act’s definition of “sex offender” (also noted in
Reynolds, see supra, at 7) makes the same point. Under
that definition, a “sex offender” is “an individual who was
convicted of a sex offense.” §20911(1). Note the tense:
“was,” not “is.” This Court has often “looked to Congress’
choice of verb tense to ascertain a statute’s temporal
reach,” including when interpreting other SORNA provi-
sions. Carr v. United States, 560 U. S. 438
, 447–448 (2010) (holding that because SORNA “sets forth [its] travel requirement in the present tense,” the statute’s criminal penalties do not apply to a person whose interstate travel predated enactment); see, e.g., United States v. Wilson,503 U. S. 329, 333
(1992); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,484 U. S. 49, 57
(1987).
Here, Congress’s use of the past tense to define the term
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Kagan,
Opinion of K AGAN, J.
“sex offender” shows that SORNA was not merely forward-
looking. The word “is” would have taken care of all future
offenders. The word “was” served to bring in the hundreds
of thousands of persons previously found guilty of a sex
offense, and thought to pose a current threat to the public.
The tense of the “sex offender” definition thus confirms
that the delegation allows only temporary exclusions, as
necessary to address feasibility issues. Contra Gundy, it
does not sweep so wide as to make a laughingstock of the
statute’s core definition.
The Act’s legislative history backs up everything said
above by showing that the need to register pre-Act offend-
ers was front and center in Congress’s thinking. (Once
again, the Reynolds majority noted this history, but Jus-
tice Scalia’s dissent thought that was gilding the lily. See
supra, at 7, and n. 1. He had a point, but we can’t resist.)
Recall that Congress designed SORNA to address “loop-
holes and deficiencies” in existing registration laws. See
supra, at 2. And no problem attracted greater attention
than the large number of sex offenders who had slipped
the system. According to the House Report, “[t]he most
significant enforcement issue in the sex offender program
is that over 100,000 sex offenders” are “ ‘missing,’ meaning
that they have not complied with” then-current require-
ments. H. R. Rep. No. 109–218, at 26. There is a “strong
public interest,” the Report continued, in “having [those
offenders] register with current information to mitigate
the risks of additional crimes against children.” Id., at 24.
Senators struck a similar chord in the debates preceding
SORNA’s passage, repeatedly stressing that the new
provisions would capture the missing offenders. See, e.g.,
152 Cong. Rec. 15338 (2006) (statement of Sen. Kyl) (“The
penalties in this bill should be adequate to ensure that
[the 100,000 missing offenders] register”); id., at 13050
(statement of Sen. Frist) (“Every day that we don’t have
this national sex offender registry, these missing sex
14 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
predators are out there somewhere”). Imagine how sur-
prising those Members would have found Gundy’s view
that they had authorized the Attorney General to exempt
the missing “predators” from registering at all.
With that context and background established, we may
return to §20913(d). As we have noted, Gundy makes his
stand there (and there only), insisting that the lonesome
phrase “specify the applicability” ends this case. See
supra, at 10. But in so doing, Gundy ignores even the rest
of the section that phrase is in. Both the title and the
remaining text of that section pinpoint one of the “practi-
cal problems” discussed above: At the moment of SORNA’s
enactment, many pre-Act offenders were “unable to com-
ply” with the Act’s initial registration requirements.
§20913(d); Reynolds, 565 U. S., at 440
; see supra, at 8.
That was because, once again, the requirements assumed
that offenders would be in prison, whereas many pre-Act
offenders were on the streets. In identifying that issue,
§20913(d) itself reveals the nature of the delegation to the
Attorney General. It was to give him the time needed (if
any) to address the various implementation issues in-
volved in getting pre-Act offenders into the registration
system. “Specify the applicability” thus does not mean
“specify whether to apply SORNA” to pre-Act offenders at
all, even though everything else in the Act commands
their coverage. The phrase instead means “specify how to
apply SORNA” to pre-Act offenders if transitional difficul-
ties require some delay. In that way, the whole of
§20913(d) joins the rest of SORNA in giving the Attorney
General only time-limited latitude to excuse pre-Act of-
fenders from the statute’s requirements. Under the law,
he had to order their registration as soon as feasible.
And no Attorney General has used (or, apparently,
thought to use) §20913(d) in any more expansive way. To
the contrary. Within a year of SORNA’s enactment (217
days, to be precise), the Attorney General determined that
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(2019) 15
Kagan,
Opinion of K AGAN, J.
SORNA would apply immediately to pre-Act offenders.
See Interim Rule, 72 Fed. Reg. 8897
; supra, at 4. That rule has remained in force ever since (save for a technical change to one of the rule’s illustrative examples). See Final Rule,75 Fed. Reg. 81850
.3 And at oral argument
here, the Solicitor General’s office—rarely in a hurry to
agree to limits on the Government’s authority—
acknowledged that §20913(d) does not allow the Attorney
General to excuse a pre-Act offender from registering,
except for reasons of “feasibility.” Tr. of Oral Arg. 41–42.
We thus end up, on close inspection of the statutory
scheme, exactly where Reynolds left us. The Attorney
General’s authority goes to transition-period implementa-
tion issues, and no further.
C
Now that we have determined what §20913(d) means,
we can consider whether it violates the Constitution. The
question becomes: Did Congress make an impermissible
delegation when it instructed the Attorney General to
apply SORNA’s registration requirements to pre-Act
offenders as soon as feasible? Under this Court’s long-
established law, that question is easy. Its answer is no.
As noted earlier, this Court has held that a delegation is
constitutional so long as Congress has set out an “intelli-
gible principle” to guide the delegee’s exercise of authority.
——————
3 Gundy tries to dispute that simple fact, but fails. He points to
changes that Attorneys General have made in guidelines to States
about how to satisfy SORNA’s funding conditions. See Brief for Peti-
tioner 32–33. But those state-directed rules are independent of the
only thing at issue here: the application of registration requirements to
pre-Act offenders. Those requirements have been constant since the
Attorney General’s initial rule, as the guidelines themselves affirm.
See 73 Fed. Reg. 38046
(2008);76 Fed. Reg. 1639
(2011). Indeed, the guidelines to States are issued not under §20913(d) at all, but under a separate delegation in §20912(b). See73 Fed. Reg. 38030
;76 Fed. Reg. 1631
.
16 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
J. W. Hampton, Jr., & Co., 276 U. S., at 409
; see supra, at 5. Or in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the delegee “the general policy” he must pursue and the “boundaries of [his] authority.” American Power & Light,329 U. S., at 105
. Those standards, the Court has made clear, are not demanding. “[W]e have ‘almost never felt qualified to second-guess Congress regarding the permis- sible degree of policy judgment that can be left to those executing or applying the law.’ ” Whitman, 531 U. S., at 474–475 (quoting Mistretta,488 U. S., at 416
(Scalia, J., dissenting)). Only twice in this country’s history (and that in a single year) have we found a delegation excessive—in each case because “Congress had failed to articulate any policy or standard” to confine discretion. Mistretta,488 U. S., at 373, n. 7
(emphasis added); see A. L. A. Schechter Poultry Corp. v. United States,295 U. S. 495
(1935); Pan- ama Refining Co. v. Ryan,293 U. S. 388
(1935). By con- trast, we have over and over upheld even very broad dele- gations. Here is a sample: We have approved delegations to various agencies to regulate in the “public interest.” See, e.g., National Broadcasting Co.,319 U. S., at 216
; New York Central Securities Corp. v. United States,287 U. S. 12, 24
(1932). We have sustained authorizations for agencies to set “fair and equitable” prices and “just and reasonable” rates. Yakus,321 U. S., at 422, 427
; FPC v. Hope Natural Gas Co.,320 U. S. 591
(1944). We more recently affirmed a delegation to an agency to issue what- ever air quality standards are “requisite to protect the public health.” Whitman,531 U. S., at 472
(quoting42 U. S. C. §7409
(b)(1)). And so forth.
In that context, the delegation in SORNA easily passes
muster (as all eleven circuit courts to have considered the
question found, see supra, at 4). The statute conveyed
Congress’s policy that the Attorney General require pre-
Act offenders to register as soon as feasible. Under the
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(2019) 17
Kagan,
Opinion of K AGAN, J.
law, the feasibility issues he could address were adminis-
trative—and, more specifically, transitional—in nature.
Those issues arose, as Reynolds explained, from the need
to “newly register[ ] or reregister[ ] ‘a large number’ of pre-
Act offenders” not then in the system. 565 U. S., at 440
; see supra, at 8. And they arose, more technically, from the gap between an initial registration requirement hinged on imprisonment and a set of pre-Act offenders long since released. See565 U. S., at 441
; see supra, at 8. Even for those limited matters, the Act informed the Attorney General that he did not have forever to work things out. By stating its demand for a “comprehensive” registration system and by defining the “sex offenders” required to register to include pre-Act offenders, Congress conveyed that the Attorney General had only temporary authority. Or again, in the words of Reynolds, that he could prevent “instantaneous registration” and impose some “implemen- tation delay.”565 U. S., at 443
. That statutory authority, as compared to the delegations we have upheld in the past, is distinctly small-bore. It falls well within constitu- tional bounds.4 Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs. Consider again this Court’s long-time recognition: “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta,488 U. S., at 372
; see supra, at 5. Or as the dissent in that case agreed: “[S]ome judg- ments . . . must be left to the officers executing the law.”488 U. S., at 415
(opinion of Scalia, J.); see Whitman, 531
——————
4 Even Gundy conceded at oral argument that if the statute means
what we have said, it “likely would be constitutional.” Tr. of Oral Arg.
25. That is why all of his argument is devoted to showing that it means
something else.
18 GUNDY v. UNITED STATES
Kagan,
Opinion of K AGAN, J.
U. S., at 475 (“[A] certain degree of discretion[ ] inheres in
most executive” action (internal quotation marks omit-
ted)). Among the judgments often left to executive officials
are ones involving feasibility. In fact, standards of that
kind are ubiquitous in the U. S. Code. See, e.g., 12 U. S.
C. §1701z–2(a) (providing that the Secretary of Housing
and Urban Development “shall require, to the greatest
extent feasible, the employment of new and improved
technologies, methods, and materials in housing construc-
tion[ ] under [HUD] programs”); 47 U. S. C. §903
(d)(1) (providing that “the Secretary of Commerce shall promote efficient and cost-effective use of the spectrum to the maximum extent feasible” in “assigning frequencies for mobile radio services”). In those delegations, Congress gives its delegee the flexibility to deal with real-world constraints in carrying out his charge. So too in SORNA. It is wisdom and humility alike that this Court has always upheld such “necessities of government.” Mistretta,488 U. S., at 416
(Scalia, J., dissenting) (internal quo- tation marks omitted); seeibid.
(“Since Congress is no less
endowed with common sense than we are, and better
equipped to inform itself of the ‘necessities’ of government;
and since the factors bearing upon those necessities are
both multifarious and (in the nonpartisan sense) highly
political . . . it is small wonder that we have almost never
felt qualified to second-guess Congress regarding the
permissible degree of policy judgment that can be left to
those executing or applying the law”). We therefore affirm
the judgment of the Court of Appeals.
It is so ordered.
JUSTICE KAVANAUGH took no part in the consideration
or decision of this case.
Cite as: 588 U. S. ____
(2019) 1
ALITO,AJ., , J., concurring
concurring
LITO in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–6086
_________________
HERMAN AVERY GUNDY, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 20, 2019]
JUSTICE ALITO, concurring in the judgment.
The Constitution confers on Congress certain “legisla-
tive [p]owers,” Art. I, §1, and does not permit Congress to
delegate them to another branch of the Government. See
Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472
(2001). Nevertheless, since 1935, the Court has uni- formly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. Seeibid.
If a majority of this Court were willing to reconsider the
approach we have taken for the past 84 years, I would
support that effort. 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.
Because I cannot say that the statute lacks a discern-
able standard that is adequate under the approach this
Court has taken for many years, I vote to affirm.
Cite as: 588 U. S. ____
(2019) 1
ORSUCH, J., concurring
GORSUCH dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–6086
_________________
HERMAN AVERY GUNDY, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 20, 2019]
JUSTICE GORSUCH, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
The Constitution promises that only the people’s elected
representatives may adopt new federal laws restricting
liberty. Yet the statute before us scrambles that design.
It purports to endow the nation’s chief prosecutor with the
power to write his own criminal code governing the lives of
a half-million citizens. Yes, those affected are some of the
least popular among us. But if a single executive branch
official can write laws restricting the liberty of this group
of persons, what does that mean for the next?
Today, a plurality of an eight-member Court endorses
this extraconstitutional arrangement but resolves nothing.
Working from an understanding of the Constitution at war
with its text and history, the plurality reimagines the
terms of the statute before us and insists there is nothing
wrong with Congress handing off so much power to the
Attorney General. But JUSTICE ALITO supplies the fifth
vote for today’s judgment and he does not join either the
plurality’s constitutional or statutory analysis, indicating
instead that he remains willing, in a future case with a
full Court, to revisit these matters. Respectfully, I would
not wait.
2 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
I
For individuals convicted of sex offenses after Congress
adopted the Sex Offender Registration and Notification
Act (SORNA) in 2006, the statute offers detailed instruc-
tions. It requires them “to provide state governments with
(and to update) information, such as names and current
addresses, for inclusion on state and federal sex offender
registries.”1 The law divides offenders into three tiers
based on the seriousness of their crimes: Some must regis-
ter for 15 years, others for 25 years, and still others for
life.2 The statute proceeds to set registration deadlines:
Offenders sentenced to prison must register before they’re
released, while others must register within three business
days after sentencing.3 The statute explains when and
how offenders must update their registrations.4 And the
statute specifies particular penalties for failing to comply
with its commands.5 On and on the statute goes for more
than 20 pages of the U. S. Code.
But what about those convicted of sex offenses before the
Act’s adoption? At the time of SORNA’s enactment, the
nation’s population of sex offenders exceeded 500,000, and
Congress concluded that something had to be done about
these “pre-Act” offenders too. But it seems Congress
couldn’t agree what that should be. The treatment of pre-
Act offenders proved a “controversial issue with major
policy significance and practical ramifications for states.”6
Among other things, applying SORNA immediately to this
group threatened to impose unpopular and costly burdens
——————
1 Reynolds v. United States, 565 U. S. 432, 434
(2012).
2 34 U. S. C. §§20911
, 20915(a).
3 §20913(b).
4 §20913(c).
5 §20913(e).
6 Logan, The Adam Walsh Act and the Failed Promise of Administra-
tive Federalism, 78 Geo. Wash. L. Rev. 993
, 999–1000 (2010).
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(2019) 3
GORSUCH, J., dissenting
on States and localities by forcing them to adopt or over-
haul their own sex offender registration schemes.7 So
Congress simply passed the problem to the Attorney Gen-
eral. For all half-million pre-Act offenders, the law says
only this, in 34 U. S. C. §20913
(d):
“The Attorney General shall have the authority to
specify the applicability of the requirements of this
subchapter to sex offenders convicted before the en-
actment of this chapter . . . and to prescribe rules for
the registration of any such sex offender.”
Yes, that’s it. The breadth of the authority Congress
granted to the Attorney General in these few words can
only be described as vast. As the Department of Justice
itself has acknowledged, SORNA “does not require the
Attorney General” to impose registration requirements on
pre-Act offenders “within a certain time frame or by a date
certain; it does not require him to act at all.”8 If the At-
torney General does choose to act, he can require all pre-
Act offenders to register, or he can “require some but not
all to register.”9 For those he requires to register, the
Attorney General may impose “some but not all of
[SORNA’s] registration requirements,” as he pleases.10
And he is free to change his mind on any of these matters
“at any given time or over the course of different [political]
administrations.”11 Congress thus gave the Attorney
General free rein to write the rules for virtually the entire
existing sex offender population in this country—a situa-
tion that promised to persist for years or decades until
——————
7 Id.,
at 1003–1004. 8 Brief for United States in Reynolds v. United States, O. T. 2011, No. 10–6549, p. 23. 9Id., at 24
. 10Ibid.
11Ibid.
4 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
pre-Act offenders passed away or fulfilled the terms of
their registration obligations and post-Act offenders came
to predominate.
Unsurprisingly, different Attorneys General have exer-
cised their discretion in different ways.12 For six months
after SORNA’s enactment, Attorney General Gonzales left
past offenders alone. Then the pendulum swung the other
direction when the Department of Justice issued an interim
rule requiring pre-Act offenders to follow all the same
rules as post-Act offenders.13 A year later, Attorney Gen-
eral Mukasey issued more new guidelines, this time di-
recting the States to register some but not all past offend-
ers.14 Three years after that, Attorney General Holder
required the States to register only those pre-Act offenders
convicted of a new felony after SORNA’s enactment.15
Various Attorneys General have also taken different
positions on whether pre-Act offenders might be entitled
to credit for time spent in the community before SORNA
was enacted.16
These unbounded policy choices have profound conse-
quences for the people they affect. Take our case. Before
SORNA’s enactment, Herman Gundy pleaded guilty in
2005 to a sexual offense. After his release from prison five
years later, he was arrested again, this time for failing to
register as a sex offender according to the rules the Attor-
ney General had then prescribed for pre-Act offenders. As
a result, Mr. Gundy faced an additional 10-year prison
term—10 years more than if the Attorney General had, in
——————
12 See, e.g., 72 Fed. Reg. 8894
(2007);73 Fed. Reg. 38030
(2008);76 Fed. Reg. 1639
(2011). 1328 CFR §72.3
(2007);72 Fed. Reg. 8894
. 14 See73 Fed. Reg. 38030
. 15 See76 Fed. Reg. 1639
. 16 Compare73 Fed. Reg. 38036
(no credit given) with75 Fed. Reg. 81851
(full credit given).
Cite as: 588 U. S. ____
(2019) 5
GORSUCH, J., dissenting
his discretion, chosen to write the rules differently.
II
A
Our founding document begins by declaring that “We
the People . . . ordain and establish this Constitution.” At
the time, that was a radical claim, an assertion that sov-
ereignty belongs not to a person or institution or class but
to the whole of the people. From that premise, the Consti-
tution proceeded to vest the authority to exercise different
aspects of the people’s sovereign power in distinct entities.
In Article I, the Constitution entrusted all of the federal
government’s legislative power to Congress. In Article II,
it assigned the executive power to the President. And in
Article III, it gave independent judges the task of applying
the laws to cases and controversies.
To the framers, each of these vested powers had a dis-
tinct content. When it came to the legislative power, the
framers understood it to mean the power to adopt gener-
ally applicable rules of conduct governing future actions by
private persons—the power to “prescrib[e] the rules by
which the duties and rights of every citizen are to be
regulated,”17 or the power to “prescribe general rules for
the government of society.”18
The framers understood, too, that it would frustrate “the
system of government ordained by the Constitution” if
Congress could merely announce vague aspirations and
then assign others the responsibility of adopting legisla-
tion to realize its goals.19 Through the Constitution, after
——————
17 The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton).
18 Fletcher v. Peck, 6 Cranch 87, 136
(1810); see also J. Locke, The Second Treatise of Civil Government and a Letter Concerning Tolera- tion §22, p. 13 (1947) (Locke, Second Treatise); 1 W. Blackstone, Com- mentaries on the Laws of England 44 (1765). 19 Marshall Field & Co. v. Clark,143 U. S. 649, 692
(1892).
6 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
all, the people had vested the power to prescribe rules
limiting their liberties in Congress alone. No one, not
even Congress, had the right to alter that arrangement.
As Chief Justice Marshall explained, Congress may not
“delegate . . . powers which are strictly and exclusively
legislative.”20 Or as John Locke, one of the thinkers who
most influenced the framers’ understanding of the separa-
tion of powers, described it:
“The legislative cannot transfer the power of making
laws to any other hands; for it being but a delegated
power from the people, they who have it cannot pass it
over to others. The people alone can appoint the form
of the commonwealth, which is by constituting the leg-
islative, and appointing in whose hands that shall be.
And when the people have said we will submit to
rules, and be governed by laws made by such men,
and in such forms, nobody else can say other men
shall make laws for them; nor can the people be bound
by any laws but such as are enacted by those whom
they have chosen and authorised to make laws for
them.”21
Why did the framers insist on this particular arrange-
ment? They believed the new federal government’s most
dangerous power was the power to enact laws restricting
the people’s liberty.22 An “excess of law-making” was, in
their words, one of “the diseases to which our governments
are most liable.”23 To address that tendency, the framers
went to great lengths to make lawmaking difficult. In
Article I, by far the longest part of the Constitution, the
——————
20 Wayman v. Southard, 10 Wheat. 1
, 42–43 (1825).
21 Locke, Second Treatise §141, at 71.
22 The Federalist No. 48, at 309–312 (J. Madison).
23 Id., No. 62, at 378. See also id., No. 73, at 441–442 (Hamilton);
Locke, Second Treatise §143.
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(2019) 7
GORSUCH, J., dissenting
framers insisted that any proposed law must win the
approval of two Houses of Congress—elected at different
times, by different constituencies, and for different terms
in office—and either secure the President’s approval or
obtain enough support to override his veto. Some occa-
sionally complain about Article I’s detailed and arduous
processes for new legislation, but to the framers these
were bulwarks of liberty.
Nor was the point only to limit the government’s capac-
ity to restrict the people’s freedoms. Article I’s detailed
processes for new laws were also designed to promote
deliberation. “The oftener the measure is brought under
examination,” Hamilton explained, “the greater the diver-
sity in the situations of those who are to examine it,” and
“the less must be the danger of those errors which flow
from want of due deliberation, or of those missteps which
proceed from the contagion of some common passion or
interest.”24
Other purposes animated the framers’ design as well.
Because men are not angels25 and majorities can threaten
minority rights, the framers insisted on a legislature
composed of different bodies subject to different elec-
torates as a means of ensuring that any new law would
have to secure the approval of a supermajority of the
people’s representatives. This, in turn, assured minorities
that their votes would often decide the fate of proposed
legislation. Indeed, some even thought a Bill of Rights
would prove unnecessary in light of the Constitution’s
design; in their view, sound structures forcing “[a]mbition
[to] . . . counteract ambition” would do more than written
promises to guard unpopular minorities from the tyranny
——————
24 The Federalist No. 73, at 443.
25 Id.,
No. 51, at 322 (Madison); D. Schoenbrod, Power Without Re-
sponsibility 29 (1993) (Schoenbrod).
8 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
of the majority.26 Restricting the task of legislating to one
branch characterized by difficult and deliberative processes
was also designed to promote fair notice and the rule of
law, ensuring the people would be subject to a relatively
stable and predictable set of rules.27 And by directing that
legislating be done only by elected representatives in a
public process, the Constitution sought to ensure that the
lines of accountability would be clear: The sovereign peo-
ple would know, without ambiguity, whom to hold ac-
countable for the laws they would have to follow.28
If Congress could pass off its legislative power to the
executive branch, the “[v]esting [c]lauses, and indeed the
entire structure of the Constitution,” would “make no
sense.”29 Without the involvement of representatives from
across the country or the demands of bicameralism and
presentment, legislation would risk becoming nothing
more than the will of the current President. And if laws
could be simply declared by a single person, they would
not be few in number, the product of widespread social
consensus, likely to protect minority interests, or apt to
provide stability and fair notice.30 Accountability would
suffer too. Legislators might seek to take credit for ad-
dressing a pressing social problem by sending it to the
executive for resolution, while at the same time blaming
the executive for the problems that attend whatever
measures he chooses to pursue. In turn, the executive
might point to Congress as the source of the problem.
These opportunities for finger-pointing might prove tempt-
——————
26 The Federalist No. 51, at 322. See also id.,
No. 84, at 515 (Hamil- ton). 27Id.,
No. 62, at 378–380. 28 Schoenbrod 99; see also The Federalist No. 50, at 316 (Madison). 29 Lawson, Delegation and Original Meaning,88 Va. L. Rev. 327
, 340 (2002). 30 The Federalist No. 47, at 303 (Madison);id.,
No. 62, at 378 (same).
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(2019) 9
GORSUCH, J., dissenting
ingly advantageous for the politicians involved, but they
would also threaten to “ ‘disguise . . . responsibility for . . .
the decisions.’ ”31
The framers warned us against permitting consequences
like these. As Madison explained, “ ‘[t]here can be no
liberty where the legislative and executive powers are
united in the same person, or body of magistrates.’ ”32 The
framers knew, too, that the job of keeping the legislative
power confined to the legislative branch couldn’t be trusted
to self-policing by Congress; often enough, legislators
will face rational incentives to pass problems to the execu-
tive branch. Besides, enforcing the separation of powers
isn’t about protecting institutional prerogatives or gov-
ernmental turf. It’s about respecting the people’s sover-
eign choice to vest the legislative power in Congress alone.
And it’s about safeguarding a structure designed to protect
their liberties, minority rights, fair notice, and the rule of
law. So when a case or controversy comes within the
judicial competence, the Constitution does not permit
judges to look the other way; we must call foul when the
constitutional lines are crossed. Indeed, the framers
afforded us independence from the political branches
in large part to encourage exactly this kind of “forti-
tude . . . to do [our] duty as faithful guardians of the
Constitution.”33
——————
31 Rao, Administrative Collusion: How Delegation Diminishes the
Collective Congress, 90 N. Y. U. L. Rev. 1463, 1478 (2015). See also B.
Iancu, Legislative Delegation: The Erosion of Normative Limits in
Modern Constitutionalism 87 (2012).
32 The Federalist No. 47, at 302 (Madison). Accord, 1 Blackstone,
Commentaries on the Laws of England, at 142; see also Cass, Delega-
tion Reconsidered: A Delegation Doctrine for the Modern Administra-
tive State, 40 Harv. J. L. & Pub. Pol’y 147, 153 (2016).
33 The Federalist No. 78, at 470.
10 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
B
Accepting, then, that we have an obligation to decide
whether Congress has unconstitutionally divested itself of
its legislative responsibilities, the question follows: What’s
the test? Madison acknowledged that “no skill in the
science of government has yet been able to discriminate
and define, with sufficient certainty, its three great prov-
inces—the legislative, executive, and judiciary.”34 Chief
Justice Marshall agreed that policing the separation of
powers “is a subject of delicate and difficult inquiry.”35
Still, the framers took this responsibility seriously and
offered us important guiding principles.
First, we know that as long as Congress makes the
policy decisions when regulating private conduct, it may
authorize another branch to “fill up the details.” In Way-
man v. Southard, this Court upheld a statute that in-
structed the federal courts to borrow state-court procedural
rules but allowed them to make certain “alterations and
additions.” Writing for the Court, Chief Justice Marshall
distinguished between those “important subjects, which
must be entirely regulated by the legislature itself,” and
“those of less interest, in which a general provision may be
made, and power given to those who are to act . . . to fill up
the details.”36 The Court upheld the statute before it
because Congress had announced the controlling general
policy when it ordered federal courts to follow state proce-
dures, and the residual authority to make “alterations and
additions” did no more than permit courts to fill up the
details.
Later cases built on Chief Justice Marshall’s under-
standing. In In re Kollock, for example, the Court upheld
——————
34 Id.,
No. 37, at 228 (Madison). 35 Wayman,10 Wheat., at 46
. 36Id., at 31, 43
.
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GORSUCH, J., dissenting
a statute that assigned the Commissioner of Internal
Revenue the responsibility to design tax stamps for mar-
garine packages.37 Later still, and using the same logic,
the Court sustained other and far more consequential
statutes, like a law authorizing the Secretary of Agricul-
ture to adopt rules regulating the “use and occupancy” of
public forests to protect them from “destruction” and
“depredations.”38 Through all these cases, small or large,
runs the theme that Congress must set forth standards
“sufficiently definite and precise to enable Congress, the
courts, and the public to ascertain” whether Congress’s
guidance has been followed.39
Second, once Congress prescribes the rule governing
private conduct, it may make the application of that rule
depend on executive fact-finding. Here, too, the power
extended to the executive may prove highly consequential.
During the Napoleonic Wars, for example, Britain and
France each tried to block the United States from trading
with the other. Congress responded with a statute in-
structing that, if the President found that either Great
Britain or France stopped interfering with American
trade, a trade embargo would be imposed against the
other country. In Cargo of Brig Aurora v. United States,
this Court explained that it could “see no sufficient reason,
why the legislature should not exercise its discretion [to
impose an embargo] either expressly or conditionally, as
their judgment should direct.”40 Half a century later,
Congress likewise made the construction of the Brooklyn
Bridge depend on a finding by the Secretary of War that
——————
37 165 U. S. 526, 532
(1897). 38 United States v. Grimaud,220 U. S. 506, 522
(1911). See also Butt- field v. Stranahan,192 U. S. 470, 496
(1904); ICC v. Goodrich Transit Co.,224 U. S. 194, 210, 215
(1912). 39 Yakus v. United States,321 U. S. 414, 426
(1944). 407 Cranch 382, 388
(1813) (emphasis added).
12 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
the bridge wouldn’t interfere with navigation of the East
River. The Court held that Congress “did not abdicate any
of its authority” but “simply declared that, upon a certain
fact being established, the bridge should be deemed a
lawful structure, and employed the secretary of war as an
agent to ascertain that fact.”41
Third, Congress may assign the executive and judicial
branches certain non-legislative responsibilities. While
the Constitution vests all federal legislative power in
Congress alone, Congress’s legislative authority some-
times overlaps with authority the Constitution separately
vests in another branch.42 So, for example, when a con-
gressional statute confers wide discretion to the executive,
no separation-of-powers problem may arise if “the discre-
tion is to be exercised over matters already within the
scope of executive power.”43 Though the case was decided
on different grounds, the foreign-affairs-related statute in
Cargo of the Brig Aurora may be an example of this kind
of permissible lawmaking, given that many foreign affairs
powers are constitutionally vested in the president under
Article II. Wayman itself might be explained by the same
principle as applied to the judiciary: Even in the absence
of any statute, courts have the power under Article III “to
regulate their practice.”44
C
Before the 1930s, federal statutes granting authority to
——————
41 Miller v. Mayor of New York, 109 U. S. 385, 393
(1883). 42 See Loving v. United States,517 U. S. 748, 768
(1996);id., at 776
(Scalia, J., concurring in part and concurring in judgment); United States v. Curtiss-Wright Export Corp.,299 U. S. 304, 320
(1936); Youngstown Sheet & Tube Co. v. Sawyer,343 U. S. 579, 635
(1952) (Jackson, J., concurring). 43 Schoenbrod, The Delegation Doctrine: Could the Court Give It Sub- stance?83 Mich. L. Rev. 1223
, 1260 (1985). 4410 Wheat., at 43
.
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GORSUCH, J., dissenting
the executive were comparatively modest and usually
easily upheld. But then the federal government began to
grow explosively. And with the proliferation of new execu-
tive programs came new questions about the scope of
congressional delegations. Twice the Court responded by
striking down statutes for violating the separation of
powers.
In A. L. A. Schechter Poultry Corp. v. United States, the
Court considered a statute that transferred to the Presi-
dent the power “to approve ‘codes of fair competition’ ” for
slaughterhouses and other industries.45 But Congress
offered no meaningful guidance. It did not, for example,
reference any pre-existing common law of fair competition
that might have supplied guidance on the policy questions,
as it arguably had done earlier with the Sherman Act.46
And it did not announce rules contingent on executive
fact-finding. Nor was this assigned power one that anyone
thought might inhere in the executive power. Proceeding
without the need to convince a majority of legislators, the
President adopted a lengthy fair competition code written
by a group of (possibly self-serving) New York poultry
butchers.
Included in the code was a rule that often made it a
federal crime for butchers to allow customers to select
which individual chickens they wished to buy. Kosher
butchers such as the Schechters had a hard time following
these rules. Yet the government apparently singled out
the Schechters as a test case; inspectors repeatedly visited
them and, at times, apparently behaved abusively toward
their customers. When the Schechters finally kicked the
——————
45 295 U. S. 495
, 521–522 (1935). 46 See State Oil Co. v. Khan,522 U. S. 3, 21
(1997); National Soc. of Professional Engineers v. United States,435 U. S. 679, 688
(1978); Letwin, The English Common Law Concerning Monopolies,21 U. Chi. L. Rev. 355
(1954).
14 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
inspectors out, they were greeted with a criminal indict-
ment running to dozens of counts. After a trial in which
the Schechters were found guilty of selling one allegedly
“unfit” chicken and other miscellaneous counts,47 this
Court agreed to hear the case and struck down the law as
a violation of the separation of powers. If Congress could
permit the President to write a new code of fair competi-
tion all his own, Justice Cardozo explained, then “any-
thing that Congress may do within the limits of the com-
merce clause for the betterment of business [could] be
done by the President . . . by calling it a code. This is
delegation running riot.”48
The same year, in Panama Refining Co. v. Ryan, the
Court struck down a statute that authorized the President
to decide whether and how to prohibit the interstate
transportation of “ ‘hot oil,’ ” petroleum produced or with-
drawn from storage in excess of state-set quotas. As in
Schechter Poultry, the law provided no notice to regulated
parties about what the President might wind up prohibit-
ing, leading the Court to observe that Congress “ha[d]
declared no policy, ha[d] established no standard, ha[d]
laid down no rule.”49 The Court explained that the statute
did not call for the executive to “ascertai[n] the existence
of facts to which legislation is directed.”50 Nor did it ask
the executive to “ ‘fill up the details’ ” “within the frame-
work of the policy which the legislature has sufficiently
defined.”51 “If [the statute] were held valid,” the Court
continued, “it would be idle to pretend that anything
would be left of limitations upon the power of the Congress
——————
47 See A. Shlaes, The Forgotten Man: A New History of the Great
Depression 214–225 (2007).
48 Schechter Poultry, 295 U. S., at 553
(concurring opinion). 49 Panama Refining Co. v. Ryan,293 U. S. 388, 415, 418, 430
(1935). 50Id., at 426
. 51Id.,
at 426 (quoting Wayman,10 Wheat., at 43
);293 U. S., at 429
.
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(2019) 15
GORSUCH, J., dissenting
to delegate its law-making function.”52
After Schechter Poultry and Panama Refining, Congress
responded by writing a second wave of New Deal legisla-
tion more “[c]arefully crafted” to avoid the kind of prob-
lems that sank these early statutes.53 And since that time
the Court hasn’t held another statute to violate the sepa-
ration of powers in the same way. Of course, no one
thinks that the Court’s quiescence can be attributed to an
unwavering new tradition of more scrupulously drawn
statutes. Some lament that the real cause may have to do
with a mistaken “case of death by association” because
Schechter Poultry and Panama Refining happened to be
handed down during the same era as certain of the Court’s
now-discredited substantive due process decisions.54 But
maybe the most likely explanation of all lies in the story of
the evolving “intelligible principle” doctrine.
This Court first used that phrase in 1928 in J. W.
Hampton, Jr., & Co. v. United States, where it remarked
that a statute “lay[ing] down by legislative act an intelli-
gible principle to which the [executive official] is directed
to conform” satisfies the separation of powers.55 No one at
the time thought the phrase meant to effect some revolu-
tion in this Court’s understanding of the Constitution.
While the exact line between policy and details, lawmak-
ing and fact-finding, and legislative and non-legislative
functions had sometimes invited reasonable debate, every-
one agreed these were the relevant inquiries. And when
Chief Justice Taft wrote of an “intelligible principle,” it
seems plain enough that he sought only to explain the
——————
52 Id., at 430
. 53 M. McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937, p. 424 (2002). 54 J. Ely, Democracy and Distrust: A Theory of Judicial Review 133 (1980). 55276 U. S. 394, 409
(1928).
16 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
operation of these traditional tests; he gave no hint of a
wish to overrule or revise them. Tellingly, too, he wrote
the phrase seven years before Schechter Poultry and Pan-
ama Refining, and it did nothing to alter the analysis in
those cases, let alone prevent those challenges from suc-
ceeding by lopsided votes.
There’s a good argument, as well, that the statute in
J. W. Hampton passed muster under the traditional tests.
To boost American competitiveness in international trade,
the legislation directed the President to “ ‘investigat[e]’ ”
the relative costs of production for American companies
and their foreign counterparts and impose tariffs or duties
that would “ ‘equalize’ ” those costs.56 It also offered guid-
ance on how to determine costs of production, listing
several relevant factors and establishing a process for
interested parties to submit evidence.57 The President’s
fact-finding responsibility may have required intricate
calculations, but it could be argued that Congress had
made all the relevant policy decisions, and the Court’s
reference to an “intelligible principle” was just another
way to describe the traditional rule that Congress may
leave the executive the responsibility to find facts and fill
up details.58
Still, it’s undeniable that the “intelligible principle”
remark eventually began to take on a life of its own. We
sometimes chide people for treating judicial opinions as if
they were statutes, divorcing a passing comment from its
context, ignoring all that came before and after, and treat-
ing an isolated phrase as if it were controlling.59 But that
seems to be exactly what happened here. For two decades,
——————
56 Id., at 401
. 57Id.,
at 401–402. 58 But see Department of Transportation v. Association of American Railroads,575 U. S. 43
, ___, ___, and n. 4 (2015) (THOMAS, J., concur- ring in judgment) (slip op., at 14, 17, and n. 4). 59 See, e.g., Reiter v. Sonotone Corp.,442 U. S. 330, 341
(1979).
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(2019) 17
GORSUCH, J., dissenting
no one thought to invoke the “intelligible principle” com-
ment as a basis to uphold a statute that would have failed
more traditional separation-of-powers tests. In fact, the
phrase sat more or less silently entombed until the late
1940s. Only then did lawyers begin digging it up in ear-
nest and arguing to this Court that it had somehow dis-
placed (sub silentio of course) all prior teachings in this
area.60
This mutated version of the “intelligible principle” re-
mark has no basis in the original meaning of the Constitu-
tion, in history, or even in the decision from which it was
plucked. Judges and scholars representing a wide and
diverse range of views have condemned it as resting on
“misunderst[ood] historical foundations.”61 They have
explained, too, that it has been abused to permit delega-
tions of legislative power that on any other conceivable
account should be held unconstitutional. Indeed, where
some have claimed to see “intelligible principles” many
“less discerning readers [have been able only to] find
gibberish.”62 Even Justice Douglas, one of the fathers of
——————
60 See, e.g., Lichter v. United States, 334 U. S. 742, 785
(1948) (up- holding a statute authorizing the executive to define “ ‘excessive prof- its’ ” earned by military contractors on the basis that the statute con- tained an “ ‘intelligible principle’ ”). 61 Association of American Railroads,575 U. S., at ___
(THOMAS, J., concurring in judgment) (slip op., at 17). See also n. 62, infra (collecting sources). 62 Lawson, 88 Va. L. Rev., at 329. See also Mistretta v. United States,488 U. S. 361
, 415–417 (1989) (Scalia, J., dissenting); Ely, supra, at 132 (“[B]y refusing to legislate, our legislators are escaping the sort of accountability that is crucial to the intelligible functioning of a demo- cratic republic”); Wright, Beyond Discretionary Justice, 81 Yale L. J. 575, 583 (1972) (“[T]he delegation doctrine retains an important poten- tial as a check on the exercise of unbounded, standardless discretion by administrative agencies”); Michigan Gambling Opposition v. Kempthorne,525 F. 3d 23, 34
(CADC 2008) (Brown, J., dissenting)
(“[The majority] conjures standards and limits from thin air to con-
18 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
the administrative state, came to criticize excessive con-
gressional delegations in the period when the intelligible
principle “test” began to take hold.63
Still, the scope of the problem can be overstated. At
least some of the results the Court has reached under the
banner of the abused “intelligible principle” doctrine may
be consistent with more traditional teachings. Some
delegations have, at least arguably, implicated the presi-
dent’s inherent Article II authority. The Court has held,
for example, that Congress may authorize the President to
prescribe aggravating factors that permit a military court-
martial to impose the death penalty on a member of the
Armed Forces convicted of murder—a decision that may
——————
struct a supposed intelligible principle”) (collecting cases); Schoenbrod,
83 Mich. L. Rev., at 1231 (“[T]he [intelligible principle] test has become
so ephemeral and elastic as to lose its meaning”); Schwartz, Of Admin-
istrators and Philosopher-Kings: The Republic, the Laws, and Delega-
tions of Power, 72 Nw. U. L. Rev. 443
, 446 (1977) (“[T]he requirement of defined standards has . . . become all but a vestigial euphemism”); P. Hamburger, Is Administrative Law Unlawful? 378 (2014) (“[T]he notion of an ‘intelligible principle’ sets a ludicrously low standard for what Congress must supply”); M. Redish, The Constitution as Political Structure 138–139 (1995); Gewirtz, The Courts, Congress, and Execu- tive Policy-Making: Notes on Three Doctrines, 40 Law & Contemp. Prob., pt. 2, pp. 46, 50–51 (Summer 1976); McGowan, Congress, Court, and Control of Delegated Power,77 Colum. L. Rev. 1119
, 1127–1128,
and n. 33 (1977).
63 “Washington, D. C., is filled with lobbyists for every special interest
that is trying to make a fast buck out of some piece of the public do-
main. . . . In the thirties and forties I had viewed the creation of an
agency as the solution of a problem. I learned that agencies soon
became spokesmen for the status quo, that few had the guts to carry
through the reforms assigned to them. I also realized that Congress
defaulted when it left it up to an agency to do what the ‘public interest’
indicated should be done. ‘Public interest’ is too vague a standard to be
left to free-wheeling administrators. They should be more closely
confined to specific ends or goals.” W. Douglas, Go East, Young Man
216–217 (1974).
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(2019) 19
GORSUCH, J., dissenting
implicate in part the President’s independent commander-
in-chief authority.64 Others of these cases may have in-
volved laws that specified rules governing private conduct
but conditioned the application of those rules on fact-
finding—a practice that is, as we’ve seen, also long associ-
ated with the executive function.65
More recently, too, we’ve sought to tame misunderstand-
ings of the intelligible principle “test.” In Touby v. United
States, the Court considered a provision of the Controlled
Substances Act that allowed the Attorney General to add a
substance to a list of prohibited drugs temporarily if he
determined that doing so was “ ‘necessary to avoid an
imminent hazard to the public safety.’ ”66 Notably, Con-
gress required the Attorney General, before acting, to
consider the drug’s “ ‘history and current pattern of
abuse,’ ” the “ ‘scope, duration, and significance of [that]
abuse,’ ” and “ ‘[w]hat, if any, risk there is to the public
health.’ ”67 In approving the statute, the Court stressed all
these constraints on the Attorney General’s discretion
and, in doing so, seemed to indicate that the statute sup-
plied an “intelligible principle” because it assigned an
essentially fact-finding responsibility to the executive.
Whether or not one agrees with its characterization of the
statute, in proceeding as it did Touby may have at least
begun to point us back in the direction of the right ques-
tions. To determine whether a statute provides an intelli-
——————
64 Loving, 517 U. S., at 771–774.
65 See, e.g., Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 215
, 219–220 (1989) (statute directing Secretary of Transportation to establish pipeline safety user fees “ ‘sufficient to meet the costs of [specified] activities’ ” but not “ ‘exceed[ing] 105 percent of the aggregate of appropriations made for such fiscal year for activities to be funded by such fees’ ”). 66500 U. S. 160
, 166 (1991).
67 Ibid.
20 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
gible principle, we must ask: Does the statute assign to
the executive only the responsibility to make factual find-
ings? Does it set forth the facts that the executive must
consider and the criteria against which to measure them?
And most importantly, did Congress, and not the Execu-
tive Branch, make the policy judgments? Only then can
we fairly say that a statute contains the kind of intelligible
principle the Constitution demands.
While it’s been some time since the Court last held that
a statute improperly delegated the legislative power to
another branch—thanks in no small measure to the intel-
ligible principle misadventure—the Court has hardly
abandoned the business of policing improper legislative
delegations. When one legal doctrine becomes unavailable
to do its intended work, the hydraulic pressures of our
constitutional system sometimes shift the responsibility to
different doctrines.68 And that’s exactly what’s happened
here. We still regularly rein in Congress’s efforts to dele-
gate legislative power; we just call what we’re doing by
different names.
Consider, for example, the “major questions” doctrine.
Under our precedents, an agency can fill in statutory gaps
where “statutory circumstances” indicate that Congress
meant to grant it such powers.69 But we don’t follow that
rule when the “statutory gap” concerns “a question of deep
‘economic and political significance’ that is central to the
statutory scheme.”70 So we’ve rejected agency demands
that we defer to their attempts to rewrite rules for billions
of dollars in healthcare tax credits,71 to assume control
——————
68 See, e.g., McDonald v. Chicago, 561 U. S. 742, 758
(2010) (incorpo- rating the Second Amendment through the Due Process Clause instead of the Privileges or Immunities Clause). 69 United States v. Mead Corp.,533 U. S. 218, 229
(2001). 70 King v. Burwell,576 U. S. ___
, ___ (2015) (slip op., at 8). 71Ibid.
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(2019) 21
GORSUCH, J., dissenting
over millions of small greenhouse gas sources,72 and to ban
cigarettes.73 Although it is nominally a canon of statutory
construction, we apply the major questions doctrine in
service of the constitutional rule that Congress may not
divest itself of its legislative power by transferring that
power to an executive agency.
Consider, too, this Court’s cases addressing vagueness.
“A vague law,” this Court has observed, “impermissibly
delegates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis.”74
And we have explained that our doctrine prohibiting
vague laws is an outgrowth and “corollary of the separa-
tion of powers.”75 It’s easy to see, too, how most any chal-
lenge to a legislative delegation can be reframed as a
vagueness complaint: A statute that does not contain
“sufficiently definite and precise” standards “to enable
Congress, the courts, and the public to ascertain” whether
Congress’s guidance has been followed at once presents a
delegation problem and provides impermissibly vague
guidance to affected citizens.76 And it seems little coinci-
dence that our void-for-vagueness cases became much
more common soon after the Court began relaxing its
approach to legislative delegations. Before 1940, the
Court decided only a handful of vagueness challenges to
federal statutes. Since then, the phrase “void for vague-
ness” has appeared in our cases well over 100 times.
——————
72 Utility Air Regulatory Group v. EPA, 573 U. S. 302
, 324 (2014). 73 FDA v. Brown & Williamson Tobacco Corp.,529 U. S. 120
, 159–160 (2000). 74 Grayned v. City of Rockford,408 U. S. 104
, 108–109 (1972); see Kolender v. Lawson,461 U. S. 352, 358, n. 7
(1983); Sessions v. Dimaya,584 U. S. ___
, ___–___ (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 7–9). 75Id.,
at ___–___ (opinion of KAGAN, J.) (slip op., at 4–5). 76 Yakus,321 U. S., at 426
.
22 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
Nor have we abandoned enforcing other sides of the
separation-of-powers triangle between the legislative,
executive, and judiciary. We have not hesitated to prevent
Congress from “confer[ring] the Government’s ‘judicial
Power’ on entities outside Article III.”77 We’ve forbidden
the executive from encroaching on legislative functions by
wielding a line-item veto.78 We’ve prevented Congress
from delegating its collective legislative power to a single
House.79 And we’ve policed legislative efforts to control
executive branch officials.80 These cases show that, when
the separation of powers is at stake, we don’t just throw
up our hands. In all these areas, we recognize that abdi-
cation is “not part of the constitutional design.”81 And
abdication here would be no more appropriate. To leave
this aspect of the constitutional structure alone undefended
would serve only to accelerate the flight of power from
the legislative to the executive branch, turning the latter
into a vortex of authority that was constitutionally re-
served for the people’s representatives in order to protect
their liberties.
III
A
Returning to SORNA with this understanding of our
charge in hand, problems quickly emerge. Start with this
one: It’s hard to see how SORNA leaves the Attorney
General with only details to fill up. Of course, what quali-
fies as a detail can sometimes be difficult to discern and,
——————
77 Stern v. Marshall, 564 U. S. 462, 484
(2011); Plaut v. Spendthrift Farm, Inc.,514 U. S. 211
, 225–226 (1995). 78 Clinton v. City of New York,524 U. S. 417, 449
(1998). 79 INS v. Chadha,462 U. S. 919
(1983). 80 Free Enterprise Fund v. Public Company Accounting Oversight Bd.,561 U. S. 477
, 496–497 (2010); Lucia v. SEC,585 U. S. ___
(2018). 81 Clinton,524 U. S., at 452
(Kennedy, J., concurring).
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(2019) 23
GORSUCH, J., dissenting
as we’ve seen, this Court has upheld statutes that allow
federal agencies to resolve even highly consequential
details so long as Congress prescribes the rule governing
private conduct. But it’s hard to see how the statute
before us could be described as leaving the Attorney Gen-
eral with only details to dispatch. As the government
itself admitted in Reynolds, SORNA leaves the Attorney
General free to impose on 500,000 pre-Act offenders all of
the statute’s requirements, some of them, or none of them.
The Attorney General may choose which pre-Act offenders
to subject to the Act. And he is free to change his mind at
any point or over the course of different political admin-
istrations. In the end, there isn’t a single policy decision
concerning pre-Act offenders on which Congress even tried
to speak, and not a single other case where we have up-
held executive authority over matters like these on the
ground they constitute mere “details.” This much appears
to have been deliberate, too. Because members of Con-
gress could not reach consensus on the treatment of pre-
Act offenders, it seems this was one of those situations
where they found it expedient to hand off the job to the
executive and direct there the blame for any later prob-
lems that might emerge.
Nor can SORNA be described as an example of condi-
tional legislation subject to executive fact-finding. To be
sure, Congress could have easily written this law in that
way. It might have required all pre-Act offenders to regis-
ter, but then given the Attorney General the authority to
make case-by-case exceptions for offenders who do not
present an “ ‘imminent hazard to the public safety’ ” com-
parable to that posed by newly released post-Act offend-
ers.82 It could have set criteria to inform that determina-
tion, too, asking the executive to investigate, say, whether
——————
82 Cf. Touby, 500 U. S., at 166.
24 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
an offender’s risk of recidivism correlates with the time
since his last offense, or whether multiple lesser offenses
indicate higher or lower risks than a single greater
offense.
But SORNA did none of this. Instead, it gave the Attor-
ney General unfettered discretion to decide which re-
quirements to impose on which pre-Act offenders. The
Attorney General’s own edicts acknowledge the consider-
able policy-making powers he enjoys, describing his rules
governing pre-Act offenders as “ ‘of fundamental im-
portance to the initial operation of SORNA, and to its
practical scope . . . since [they] determin[e] the applicabil-
ity of SORNA’s requirements to virtually the entire exist-
ing sex offender population.’ ”83 These edicts tout, too, the
Attorney General’s “discretion to apply SORNA’s require-
ments to sex offenders with pre-SORNA convictions if he
determines (as he has) that the public benefits of doing so
outweigh any adverse effects.”84 Far from deciding the
factual predicates to a rule set forth by statute, the Attor-
ney General himself acknowledges that the law entitles
him to make his own policy decisions.
Finally, SORNA does not involve an area of overlapping
authority with the executive. Congress may assign the
President broad authority regarding the conduct of foreign
affairs or other matters where he enjoys his own inherent
Article II powers. But SORNA stands far afield from any
of that. It gives the Attorney General the authority to
“prescrib[e] the rules by which the duties and rights” of
citizens are determined, a quintessentially legislative
power.85
Our precedents confirm these conclusions. If allowing
——————
83 75 Fed. Reg. 81850
(quoting72 Fed. Reg. 8896
). 8475 Fed. Reg. 81850
.
85 The Federalist No. 78, at 465 (Hamilton); see also Part II–A, supra.
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(2019) 25
GORSUCH, J., dissenting
the President to draft a “cod[e] of fair competition” for
slaughterhouses was “delegation running riot,” then it’s
hard to see how giving the nation’s chief prosecutor the
power to write a criminal code rife with his own policy
choices might be permissible.86 And if Congress may not
give the President the discretion to ban or allow the inter-
state transportation of petroleum, then it’s hard to see
how Congress may give the Attorney General the discre-
tion to apply or not apply any or all of SORNA’s require-
ments to pre-Act offenders, and then change his mind at
any time.87 If the separation of powers means anything, it
must mean that Congress cannot give the executive
branch a blank check to write a code of conduct governing
private conduct for a half-million people.
The statute here also sounds all the alarms the founders
left for us. Because Congress could not achieve the con-
sensus necessary to resolve the hard problems associated
with SORNA’s application to pre-Act offenders, it passed
the potato to the Attorney General. And freed from the
need to assemble a broad supermajority for his views, the
Attorney General did not hesitate to apply the statute
retroactively to a politically unpopular minority. Nor
could the Attorney General afford the issue the kind of
deliberative care the framers designed a representative
legislature to ensure. Perhaps that’s part of the reason
why the executive branch found itself rapidly adopting
different positions across different administrations. And
because SORNA vested lawmaking power in one person
rather than many, it should be no surprise that, rather
than few and stable, the edicts have proved frequent and
shifting, with fair notice sacrificed in the process. Then,
too, there is the question of accountability. In passing this
——————
86 Schechter Poultry, 295 U. S., at 552–553 (Cardozo, J., concurring).
87 Panama Refining, 293 U. S., at 430
.
26 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
statute, Congress was able to claim credit for “comprehen-
sively” addressing the problem of the entire existing popu-
lation of sex offenders (who can object to that?), while in
fact leaving the Attorney General to sort it out.
It would be easy enough to let this case go. After all, sex
offenders are one of the most disfavored groups in our
society. But the rule that prevents Congress from giving
the executive carte blanche to write laws for sex offenders
is the same rule that protects everyone else. Nor is it hard
to imagine how the power at issue in this case—the power
of a prosecutor to require a group to register with the
government on pain of weighty criminal penalties—could
be abused in other settings. To allow the nation’s chief
law enforcement officer to write the criminal laws he is
charged with enforcing—to “ ‘unit[e]’ ” the “ ‘legislative and
executive powers . . . in the same person’ ”—would be to
mark the end of any meaningful enforcement of our sepa-
ration of powers and invite the tyranny of the majority
that follows when lawmaking and law enforcement re-
sponsibilities are united in the same hands.88
Nor would enforcing the Constitution’s demands spell
doom for what some call the “administrative state.” The
separation of powers does not prohibit any particular
policy outcome, let alone dictate any conclusion about the
proper size and scope of government. Instead, it is a
procedural guarantee that requires Congress to assemble
a social consensus before choosing our nation’s course on
policy questions like those implicated by SORNA. What is
more, Congress is hardly bereft of options to accomplish
all it might wish to achieve. It may always authorize
executive branch officials to fill in even a large number of
details, to find facts that trigger the generally applicable
rule of conduct specified in a statute, or to exercise non-
——————
88 The Federalist No. 47, at 302.
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(2019) 27
GORSUCH, J., dissenting
legislative powers. Congress can also commission agencies
or other experts to study and recommend legislative lan-
guage. Respecting the separation of powers forecloses no
substantive outcomes. It only requires us to respect along
the way one of the most vital of the procedural protections
of individual liberty found in our Constitution.
B
What do the government and the plurality have to say
about the constitutional concerns SORNA poses? Most
everyone, the plurality included, concedes that if SORNA
allows the Attorney General as much authority as we have
outlined, it would present “a nondelegation question.”89 So
the only remaining available tactic is to try to make this
big case “small-bore”90 by recasting the statute in a way
that might satisfy any plausible separation-of-powers test.
So, yes, just a few years ago in Reynolds the government
represented to this Court that SORNA granted the Attor-
ney General nearly boundless discretion with respect to
pre-Act offenders. But now, faced with a constitutional
challenge, the government speaks out of the other side of
its mouth and invites us to reimagine SORNA as compel-
ling the Attorney General to register pre-Act offenders “to
the maximum extent feasible.” And, as thus reinvented,
the government insists, the statute supplies a clear state-
ment of legislative policy, with only details for the Attor-
ney General to clean up.
But even this new dream of a statute wouldn’t be free
from doubt. A statute directing an agency to regulate
private conduct to the extent “feasible” can have many
possible meanings: It might refer to “technological” feasi-
bility, “economic” feasibility, “administrative” feasibility,
——————
89 Ante, at 6.
90 Ante, at 17.
28 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
or even “political” feasibility. Such an “evasive standard”
could threaten the separation of powers if it effectively
allowed the agency to make the “important policy choices”
that belong to Congress while frustrating “meaningful
judicial review.”91 And that seems exactly the case here,
where the Attorney General is left free to make all the
important policy decisions and it is difficult to see what
standard a court might later use to judge whether he
exceeded the bounds of the authority given to him.
But don’t worry over that; return to the real world. The
bigger problem is that the feasibility standard is a figment
of the government’s (very recent) imagination. The only
provision addressing pre-Act offenders, §20913(d), says
nothing about feasibility. And the omission can hardly be
excused as some oversight: No one doubts that Congress
knows exactly how to write a feasibility standard into law
when it wishes.92 Unsurprisingly, too, the existence of
some imaginary statutory feasibility standard seemed to
have escaped notice at the Department of Justice during
the Attorney General’s many rulemakings; in those pro-
ceedings, as we have seen, the Attorney General has
repeatedly admitted that the statute affords him the
authority to “balance” the burdens on sex offenders with
“public safety interests” as and how he sees fit.93
Unable to muster a feasibility standard from the only
statutory provision addressing pre-Act offenders, the
plurality invites us to hunt in other and more unlikely
corners. It points first to SORNA’s “[d]eclaration of pur-
pose,” which announces that Congress, “[i]n order to pro-
——————
91 Industrial Union Dept., AFL–CIO v. American Petroleum Institute,
448 U. S. 607, 676
, 685–686 (1980) (Rehnquist, J., concurring in judg- ment). 92 See, e.g.,42 U. S. C. §§1310
(b)(2)(C), 1383b(e)(2)(B);20 U. S. C. §3509
;49 U. S. C. §24201
(a)(1).
93 75 Fed. Reg. 81851–81852.
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(2019) 29
GORSUCH, J., dissenting
tect the public from sex offenders and offenders against
children . . . establishes a comprehensive national system
for the registration of those offenders.”94 But nowhere is
feasibility mentioned here either. In fact, this provision
doesn’t purport to guide the Attorney General’s discretion
at all. Instead, it simply declares what Congress believed
the rest of the statute’s enacted provisions had already
“establishe[d],” without the need for any action by the
Attorney General. And by now surely we must all agree
that broad and sweeping statements like these about “a
statute’s ‘basic purpose’ are . . . inadequate to overcome
the words of its text regarding the specific issue under
consideration.”95 While those adopting SORNA might
have declared that they hoped and wished for a “compre-
hensive national system,” the fact remains that the law
they actually adopted for pre-Act offenders leaves every-
thing to the Attorney General. Hopes and dreams are not
laws.
Besides, even if we were to pretend that §20901
amounted to a directive telling the Attorney General to
establish a “comprehensive national system” for pre-Act
offenders, the plurality reads too much into the word
“comprehensive.” Comprehensive coverage does not mean
coverage to the maximum extent feasible. “Comprehen-
sive” means “having the attribute of comprising or includ-
ing much; of large content or scope,” “[i]nclusive of; em-
bracing,” or “[c]ontaining much in small compass;
compendious.”96 So, for example, a criminal justice system
may be called “comprehensive” even though many crimes
go unpursued. And SORNA itself contains all sorts of
——————
94 34 U. S. C. §20901
. See also ante, at 11–12. 95 Mertens v. Hewitt Associates,508 U. S. 248, 261
(1993) (emphasis
deleted).
96 3 Oxford English Dictionary 632 (2d ed. 1989).
30 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
coverage exceptions for post-Act offenders yet claims to
comprehensively address them.97 In the same way, no
reason exists why SORNA might not also claim to address
pre-Act offenders “comprehensively” even though the
Attorney General is free to exercise his discretion to forgo
registration for some, many, or maybe all of them. The
statute still “comprehensively” addresses these persons by
indicating they must abide whatever rules an Attorney
General may choose. In all these ways, SORNA might be
said to address sex offenders past, present, and future in a
way that “compris[es] or includ[es] much,” and that is “of
large content or scope,” but in a way that nevertheless
delegates important policy decisions to the executive
branch.
Finding it impossible to conscript the statute’s declara-
tion of purpose into doing the work it needs done, the
government and plurality next ask us to turn to SORNA’s
definition of “ ‘sex offender.’ ”98 They emphasize that
SORNA defines a “sex offender” as “ ‘an individual who
was convicted of a sex offense’ ”—and, they note, pre-Act
offenders meet this definition.99 Because pre-Act offenders
fall within the definition of “sex offender[s],” the govern-
ment and plurality continue, it follows that the Attorney
General must ensure all of them are registered and sub-
ject to SORNA’s demands.
That much, however, does not follow. To say that pre-
Act sex offenders fall within the definition of “sex offend-
ers” is merely a truism: Yes, of course, these people have
already been convicted of sex offenses under state law.
But whether these individuals are also subject to federal
registration requirements is a different question entirely.
——————
97 See, e.g., 34 U. S. C. §§20911
(7)(A)–(B), (8), 20915(a), (b)(1). 98 Ante, at 12–13. 99Ibid.
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GORSUCH, J., dissenting
And as we have seen, the only part of the statute that
speaks to pre-Act sex offenders—§20913(d)—makes plain
that they are not automatically subject to all the Act’s
terms but are left to their fate at the hands of the Attorney
General. Look at it this way: If the statute’s definitional
section were really enough to command the registration of
all sex offenders, the Act would have had no need to pro-
ceed to explain, as it does at great length, when post-Act
sex offenders must register and when they need not.
If that argument won’t work, the plurality points us to
§20913(d)’s second clause, which grants the Attorney
General the authority “to prescribe rules for the registra-
tion of . . . sex offenders . . . who are unable to comply”
with the Act’s initial registration requirements.100 Accord-
ing to the plurality, this language suggests that Congress
expected the Attorney General to register pre-Act offend-
ers to the maximum extent feasible. But, of course, this
clause, too, says nothing of the sort. And the authority
provided under §20913(d)’s first clause—which gives the
Attorney General the blanket authority “to specify the
applicability of the requirements of this subchapter”—is
additional to the authority granted under the second
clause. So not only does the Attorney General have the
authority to prescribe rules for the registration of pre-Act
offenders under the second clause, he is free to specify
which statutory requirements he does and does not wish
to apply under the first clause. Far from suggesting a
maximalist approach then, the second clause read in light
of the first only serves to underscore the breadth of the
Attorney General’s discretion.
With so little in statutory text to work with, the gov-
ernment and the plurality “can’t resist” highlighting cer-
——————
100 Ante, at 14.
32 GUNDY v. UNITED STATES
GORSUCH, J., dissenting
tain statements from the Act’s legislative history.101 But
“legislative history is not the law.”102 Still less can com-
mittee reports or statements by individual legislators be
used “to muddy clear statutory language” like that before
us.103 And even taken on their own terms, these state-
ments do no more than confirm that some members of
Congress hoped and wished that the Attorney General
would exercise his discretion to register at least some pre-
Act offenders. None of these snippets mentions a “feasibil-
ity” standard, and none can obscure the absence of such a
standard in the law itself.
That leaves the plurality and the government to try to
fish its feasibility standard from our decision in Reynolds.
But Reynolds would make a difference only if it bound us
as a matter of stare decisis to adopt an interpretation
inconsistent with the statute’s terms. And, of course, it
does no such thing. The government and the plurality
submit that Reynolds was premised on an understanding
that Congress intended the statute to apply to pre-Act
offenders to the maximum extent feasible. To support
their reading they point to Reynolds’ surmise that Con-
gress “may well have thought [that there could be] practi-
cal problems” with applying SORNA to pre-Act offenders
and for that reason left their registration obligations to be
sorted out by the Attorney General.104 But speculation
about some of Congress’s motives in adopting §20913(d)
aside, Reynolds plainly understood the statute itself as
investing the Attorney General with sole power to decide
whether and when to apply SORNA’s requirements to pre-
——————
101 See ante, at 13–14.
102 Epic Systems Corp. v. Lewis, 584 U. S. ___
, ___ (2018) (slip op., at 23). 103 Milner v. Department of Navy,562 U. S. 562
, 572 (2011).
104 Reynolds, 565 U. S., at 440–441.
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GORSUCH, J., dissenting
Act offenders.105
*
Nothing found here can come as a surprise. In Reyn-
olds, the government told this Court that SORNA supplies
no standards regulating the Attorney General’s treatment
of pre-Act offenders. This Court agreed, and everyone
proceeded with eyes open about the potential constitutional
consequences; in fact, the dissent expressly warned that
adopting such a broad construction of the statute would
yield the separation-of-powers challenge we face today.106
Now, when the statute faces the chopping block, the gov-
ernment asks us to ignore its earlier arguments and
reimagine (really, rewrite) the statute in a new and nar-
rower way to avoid its long-predicted fate. No wonder
some of us are not inclined to play along.
The only real surprise is that the Court fails to make
good on the consequences the government invited, resolv-
ing nothing and deferring everything. In a future case
with a full panel, I remain hopeful that the Court may yet
recognize that, while Congress can enlist considerable
assistance from the executive branch in filling up details
and finding facts, it may never hand off to the nation’s
chief prosecutor the power to write his own criminal code.
That “is delegation running riot.”107
——————
105 Id., at 445
(holding that “the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General so specifies”);id., at 439
(rejecting argument that any SORNA requirements apply to pre-Act offenders “before the Attorney General validly specifies” they do);id.,
at 440–441 (observing that the Attorney General might con- clude that “different federal registration treatment of different catego- ries of pre-Act offenders” is “warranted”). 106 Seeid., at 450
(Scalia, J., dissenting). 107 Schechter Poultry,295 U. S., at 553
(Cardozo, J., concurring).