By Emaan R. Jaberi*
The Non-Delegation doctrine “is a principle of administrative law that Congress cannot delegate its legislative powers to other entities.”[i] This doctrine requires Congress to give an “intelligible principle” to agencies on which to base their regulations.[ii] By requiring an intelligible principle, the judiciary is able to place a check on Congress’ ability to “transfer to others [its] essential legislative function,” as a means of maintaining the separation of powers, and to prevent the executive from infringing on Congress’ legislative function.[iii] While there have been periodic arguments regarding Non-Delegation, for over three-quarters of a century the Court has “not [found] a violation of the doctrine.”[iv]
However, on October 2, 2018, the Supreme Court heard oral arguments for Gundy v. United States regarding “[w]hether the federal Sex Offender Registration and Notification Act’s [SORNA] delegation of authority to the attorney general to issue regulations under 34 U.S.C. 20913(d) violates the Non-Delegation doctrine.”[v] Many have found this grant of certiorari surprising because the Court has been reluctant to utilize this doctrine in recent years to enforce the separation of powers.[vi] Importantly, this could provide the Court an opportunity to revive Non-Delegation, and to supplement the intelligible principle doctrine by creating a stricter standard depending on the agency to which Congress legislates. The challenged 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 enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).[vii]
The difficulty this statute presents is that Congress “didn’t specify whether these new criminal provisions would apply to pre-Act offenders” which could affect an estimated “500,000” individuals.[viii] In a previous challenge to this law, the Court in Reynolds v. United States held that SORNA did not apply to pre-SORNA offenders of its own force, unless the attorney general specified so.[ix] Thus, the Reynolds Court placed the application of SORNA to pre-Act offenders at the discretion of the attorney general.[x] However, as the dissent in Reynolds suggests, “it is not entirely clear” whether Congress has the authority to grant the Attorney General such broad discretion to decide “whether a criminal statute will or will not apply to certain individuals” without a “statutory standard” to govern “discretion.”[xi] This sets the stage for the challenge in Gundy.
The arguments focus on whether 34 U.S.C. 20913(d) contains an intelligible principle to constrain the Attorney General’s discretion, whether the intelligible principle can be sought elsewhere within the statute, and whether there is a separation of powers issue because of the criminal nature of the SORNA delegation being given to the chief federal prosecutor, the Attorney General of the United States.
Generally, the Court has found there to be an intelligible principle if “Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”[xii] The Court’s rationale has been “driven by a practical understanding that in our increasingly complex society, replete with changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”[xiii]
Petitioners contend that the Government cannot “plumb sources external to Section 20913(d) for some unstated intelligible principle that Congress itself did not provide.”[xiv] Even if the Court did believe that the Government could do so, the Government’s sources “do not show that Congress intended or expected” for “the Attorney General to expand the Act to cover pre-Act offenders to the maximum extent feasible.”[xv] Finally, if the sources the government relies upon creates an intelligible principle it does not suffice here because “Congress must provide more meaningful guidance . . . especially for a law that leaves it to the nation’s top prosecutor to specify whether and how a federal criminal law should be applied to a class of a half million individuals.”[xvi]
Respondents argue that SORNA was enacted to make more uniform and effective the existing patchwork of federal and state sex-offender registration systems.[xvii] Respondents believe that the intelligible principle can come from “the statement of express statutory purpose” for a comprehensive national system, “the inclusive definition of ‘sex offender,’ the broad registration requirement in 2913(a),” and “the text and title of 913(d). . . addressing the inability to comply.”[xviii] Further, Respondents contend that there isn’t an issue regarding this delegation to the Attorney General because he was not “defining the elements of the offense or defining the criminal punishment,” because Congress had already done so.[xix]
At Oral Argument, the Court demonstrated that it had two primary concerns. First, was whether other provisions of SORNA could provide the congressional guidance needed to establish an intelligible principle.[xx] Justice Kagan pressed this line of questioning during the Government’s presentation regarding what the Attorney General could and couldn’t do “given the language of this statute and given the language of Reynolds.”[xxi] The second concern was whether the delegation in SORNA can be distinguished in relation to other delegations, or if the “Non-Delegation Doctrine [could] apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement.”[xxii] Here, Justice Gorsuch expressed concern stating “I’m having trouble thinking of another delegation in which this Court has ever allowed the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute.”[xxiii] While there are multiple ways this court could rule, both broadly and narrowly, there are two important ways the Court can hold.
If the Court rules that SORNA does contain an intelligible principle that can be found in the sources stated by the government, there will be future concerns regarding this practice and its reliability. Factors such as “statutory preambles,” are not always a reliable guide for what Congress intended.[xxiv] Legislation requires compromise, and a single preamble cannot articulate the “conflicting goals” or the intention of the congressional body from a “broader, aspirational” statement.[xxv] There is also a potential for the Non-Delegation doctrine to lose any remaining force, allowing for searching interpretations to find and define principles to guide the promulgation of regulation.[xxvi] This should be concerning, because regulations should be guided by the explicit intentions of Congress, and if these intentions could be avoided by searching elsewhere for an intelligible principle, the intentions of Congress would be usurped.
Alternatively, the Court could rule that SORNA does contain a traditional intelligible principle by looking through the entirety of the statute, but because of the “special nature of this delegation,” more guidance is needed from Congress.[xxvii] As the Petitioner states, this is “the retroactive application of criminal law penalties that affect the individual liberty interests in the most profound way” and there must be a division between “the law-maker” and “the executive.”[xxviii] The bare principle that the Government argues for would allow the Attorney General to promulgate regulations with criminal consequences, and subsequently allow them to prosecute. This discretion “offends basic notions of separation of powers.”[xxix] Ruling in this way would allow the Court to refine the Non-Delegation doctrine and play a more “aggressive role” in interpreting Congress’ delegations.[xxx] However, if this occurs, the new question is how and when should heightened scrutiny be triggered. As Justices Alito and Breyer alluded to, if guidance such as “in the public interest” which is used in the SEC’s Rule 10b-5 promulgations would be insufficient here, a multitude of other regulations could come under threat of violating the Non-Delegation doctrine.[xxxi]
The challenge here ultimately reflects a tension between allowing Congress to address complex national issues, while also restraining the ability of administrative agencies to pursue their own interests. Regardless, Gundy has the chance to substantially change the course of the Non-Delegation Doctrine, whether it is revived, refined to include considerations for the separation of powers, or allowed to fall away.
It could be ideal for the Court to pronounce a limited holding and require a more stringent intelligible principle requirement for when authority is given to the Attorney General. This has the potential to leave most of the existing regulations intact, while also addressing the especially troubling separation of powers issue at play. If this were to occur, there is a possibility that the Non-Delegation Doctrine would be revitalized with a sliding scale for the level of description that is needed in an intelligible principle, depending on the agency. As with the creation of any sliding scale and standard, there is a chance for this area of law to become overly convoluted. However, if the holding can be constrained enough, a stricter intelligible principle requirement for the Attorney General could be a preferable outcome to the abandonment of the Non-Delegation doctrine.
* Emaan R. Jaberi is an Associate Editor on MJEAL. He can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Legal Information Institute, Nondelegation Doctrine, Cornell Law (Nov. 17, 2018, 6:43 P.M.), https://www.law.cornell.edu/wex/nondelegation_doctrine.
[ii] J.W. Hampton v. United States, 276 U.S. 394, 409 (1928).
[iii] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935).
[iv] Stephen Wermiel, SCOTUS for law students: Non-delegation doctrine returns after long hiatus, SCOTUSblog (Dec. 4, 2014, 8:00 PM), http://www.scotusblog.com/2014/12/scotus-for-law-students-non-delegation-doctrine-returns-after-long-hiatus/.
[v] Mila Sohoni, Argument preview: Justices face nondelegation challenge to federal sex-offender registration law, SCOTUSblog (Sep. 25, 2018, 10:11 AM), http://www.scotusblog.com/2018/09/argument-preview-justices-face-nondelegation-challenge-to-federal-sex-offender-registration-law/ (internal quotations omitted).
[vi] Matthew Cavedon & Jonahtan Skrmetti, Part Like It’s 1935?: Gundy v. United States and the Future of the Non-Delegation Doctrine, 19 The Fed. Soc. Rev. 42 (https://fedsoc.org/commentary/publications/party-like-it-s-1935-gundy-v-united-states-and-the-future-of-the-non-delegation-doctrine).
[vii] 34 U.S.C. § 20913 (d) (2018).
[viii] Steven D. Schwinn, Court to Hear Arguments in Nondelegation Doctrine Challenge to Sex Offender Registration Act, Constitutional Law Prof Blog (Oct 1, 2018) https://lawprofessors.typepad.com/conlaw/2018/10/court-to-hear-arguments-in-nondelegation-doctrine-challenge-to-sex-offender-registration-act.html.
[ix] Sohoni, supra note 5.
[x] See id.
[xi] Reynolds v. United States, 132 S.Ct. 975, 986 (2012).
[xii] Mistretta v. United States, 488 U.S. 361, 372 (1989).
[xiii] Reynolds, supra note, 11, at 372 – 373.
[xiv] Reply Brief for Petitioner at 2, Gundy v. United States, No. 17-6086 (Sept. 4 2018).
[xv] Id. (internal quotations omitted).
[xvi] Id. at 18 (internal quotations omitted).
[xvii] Brief for United States at 4, Gundy v. United States, No. 17-6086 (Aug. 2 2018).
[xviii] Oral Arguments at 48:00 Gundy v. United States, No. 17-6086 (Oct. 2 2018). https://apps.oyez.org/player/#/roberts9/oral_argument_audio/24617.
[xix] Id. at 50:31.
[xx] Mila Sohoni, Argument analysis: Justices grapple with nondelegation challenge, SCOTUSblog (Oct. 3, 2018, 1:33 PM), http://www.scotusblog.com/2018/10/argument-analysis-justices-grapple-with-nondelegation-challenge/.
[xxi] Oral Argument supra note 18 at 35:59.
[xxii] Steven D. Schwinn, Oral Argument Analysis, Constitutional Law Prof Blog (Oct 3, 2018) https://lawprofessors.typepad.com/conlaw/oral-argument-analysis/.
[xxiii] Oral Argument supra note 18 at 13:01.
[xxiv] Brief for William D. Araiza and 14 Other Constitutional, Criminal and Administrative Law Professors as Amici Curiae in Support of Petitioner, Gundy v. United States at 12 (No. 17-6086).
[xxv] Id. 12 – 13.
[xxvi] Id. 14 – 15.
[xxvii] Oral Arguments supra note 18 at 54:55.
[xxix] Brief for William D. Araiza et. al Supra 24 at 21.
[xxx] Schwinn supra 22.
[xxxi] Oral Argument supra note 18 at 3:45.