Gundy v. United States (17-6086)

argument 17-6086

Gundy v. United States

Supreme Court of the United States 55 min 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the constitutional issue at the heart of Gundy v. United States?

John G. Roberts 0:00

We'll hear argument first this morning in Case 17-6086, Gundy v. the United States. Ms. Baumgartel?

Sarah Baumgartel 0:17

Mr. Chief Justice, and may it please the Court, Sorna's delegation provision grants unguided power to the nation's top prosecutor to expand the scope of criminal laws and and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals. It combines criminal lawmaking and executive power in precisely the way that the Constitution was designed to prohibit. This delegation is unconstitutional. This delegation can be distinguished from every delegation that has previously been upheld by this Court due to a combination of its total lack of standard and the nature and significance of the delegated power. Unlike other delegations that this Court has approved, SORNA has no standard to guide the Attorney General's exercise of discretion.

John G. Roberts 1:12

Well, the government says that they do have a standard, and it's the apply the prohibition or the requirements in the law to the maximum extent feasible.

Sarah Baumgartel 1:21

Your Honor, that language does not appear anywhere in the statutory text, nor can it be derived from the sources that the government cites.

Unknown 1:27

What about the list that's contained in, what is it, 20901, the list of past offenders? On your view, none of those people would be required to register.

Sarah Baumgartel 1:45

That's not correct. So one important thing about this case is that every state had an existing sex offender registration system prior to SORNA's enactment. And those registration systems would remain in effect regardless of whether SORNA existed or not. And so, for example, petitioner was required to register under existing Maryland law. and so would the vast majority of sex offenders who were also then required to re-register under SORNA. These state registration systems had been in existence, many of them since the early 90s, but since 1996, every state had its own registration system. But they would

Unknown 2:25

not come under the federal registration system, which was the purpose of SORNA to create. None of those examples... would be covered by the federal registration requirement.

Sarah Baumgartel 2:42

Well, as this Court held in Reynolds, Congress left it to the Attorney General to determine whether SORNA would apply retroactively at all. And so Congress declined to make the initial decision as to whether any pre-act offenders should be required to register. This was consistent with how Congress had approached registration schemes in the past. Congress had previously enacted registration legislation that — conditioned state funding on requiring certain things from sex offender registries. And in each of those prior cases, Congress had not made the law retroactive. And so there's nothing strange about Congress doing this. As the Court held in Reynolds, it then gave the Attorney General full authority to decide whether the law should be applied retroactively, so the initial on-off determination, but then as well how it should apply, which offenders should be included –

Sarah Baumgartel 3:37

if it should extend all the way back to 20, 30, 40 years. There was absolutely no guidance provided to the Attorney General. Well,

Samuel A. Alito 3:45

suppose the statute said that the Attorney General shall have the authority to determine the application of this subchapter to pre-enactment offenders as public safety and fairness requires. Would that be a violation of the non-delegation doctrine?

Sarah Baumgartel 4:03

Yes, Your Honor. Given the subject matter of this delegation, Congress needs to provide more guidance than something along the lines of in the public interest. What

Stephen G. Breyer 4:11

about the most famous regulation that I think people in this room would imagine, Rule 10b-5? I mean, Rule 10b-5 is promulgated under a statute that says the SEC can forbid the use of any manipulative device — that's like the sex offender part — in contravention of such rules as — are appropriate in the public interest.

Sarah Baumgartel 4:34

So there are a few distinctions. One is that the SEC, obviously, is a different body than the Attorney General. And so this is a point where the courts do process and delegation concerns converge.