In Gundy v. United States, the U.S. Supreme Court ruled 5-3 that the Sex Offender Registration and Notification Act (SORNA) did not violate the nondelegation doctrine, the constitutional principle forbidding Congress from delegating its legislative powers to the executive.
Justice Elena Kagan’s majority opinion noted that the court has only declared delegations of authority unconstitutional twice in its entire history and that past courts have upheld even broader delegations with less guidance from Congress. Justice Samuel Alito, who voted to uphold SORNA, wrote a separate opinion stating his willingness to reconsider how the court approaches future nondelegation doctrine challenges.
Justice Gorsuch filed a dissenting opinion arguing that SORNA is unconstitutional because it gives the U.S. attorney general the power to write and enforce his own criminal code. He argued, “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?”
Herman Gundy was convicted for failing to register as a sex offender under SORNA even though his offense occurred before SORNA passed. He argued that Congress improperly gave away legislative power to the attorney general when it allowed him to decide whether and how to apply SORNA to sex offenders who were convicted earlier.
The last time the U.S. Supreme Court found that Congress violated the nondelegation doctrine was in two 1935 cases involving the National Industrial Recovery Act passed during the New Deal.