- The Washington Times - Tuesday, October 2, 2018

Two Supreme Court justices from opposite ends of the bench cast doubt Tuesday on the Justice Department’s authority to require hundreds of thousands of convicts to register as sex offenders even though their cases came before the 2006 registration law passed.

Justices Ruth Bader Ginsburg and Neil M. Gorsuch suggested Congress turned over too much decision-making in the Sex Offender Registration and Notification Act, which allowed the U.S. attorney general to decide to apply it retroactively.

Herman Avery Gundy, one of the people snared by the retroactive registration, brought the challenge, saying he already served his sentence for his 2005 conviction and shouldn’t be forced to comply with a law that didn’t exist at the time.

Though the 2nd Circuit Court of Appeals rejected his argument, the high court granted his appeal, hearing arguments Tuesday. His case appeared to resonate with Justices Gorsuch and Ginsburg, who said the delegation of authority to the attorney general to decide on retroactivity seemed to cross lines.

They also said people convicted years before the law may not know they are affected.

“How do people even know who is going to be included in this class until they hear from the attorney general? And I — 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,” Justice Gorsuch said.

Added Justice Ginsburg: “There’s no notice to these people.”

Tuesday’s argument was about separation of powers between the executive and legislative branches and what’s known as the non-delegation doctrine. That’s the legal theory that some powers are so inherent to Congress that it cannot be allowed to delegate them to the administration.

Deputy Solicitor General Jeffrey B. Wall said there was no violation in the case because the Justice Department was carrying out Congress’s will that offenders be registered, which lawmakers expressed during the debate over the bill.

“To be honest with you, I think it defies both the text of SORNA and reality to think that Congress was agnostic about whether hundreds of thousands of people who have committed very serious sex offenses, as petitioner has, should be required to register,” Mr. Wall told the court.

“I think there’s no way to read SORNA’s text, its legislative history, and not come away with the firm and definite notion that Congress wanted as many of those offenders in the system as the attorney general could get in,” he added.

SORNA was enacted so sex offenders could be tracked once they’re released back into the community.

It requires each state to keep a database and information on the felons. Thus far, 18 jurisdictions have implemented SORNA, while 26 are engineering the database.

Mr. Wall told the justices that if they rule against the attorney general’s decision, some of those states may not follow through.

“There will no longer be a duty to register,” he said. “All told, our best estimate is that we’ll lose a couple of thousand people out of the registries every month.”

SORNA is part of civil law but is enforced by criminal penalties for those who fail to follow through.

Justice Elena Kagan ticked off similar examples when Congress has written civil laws and then left it up to the administration to decide how to enforce them.

“These are all places where the delegation is to a civil regulation as it is here, but if you violate that regulation that some secretary or attorney general or whatever has written, you’re going to face criminal sanctions. So what’s the difference between this case and all those other cases?” she said.

But Justice Gorsuch said the law amounts to “a blank check to the attorney general of the United States to determine who he’s going to prosecute.”

Justice Ginsburg jumped in at that point, telling Sarah Baumgartel, Mr. Gundy’s lawyer, she should follow Justice Gorsuch’s lead: “That’s your argument stated very concisely.”

“I’ll cede my time,” Ms. Baumgartel responded, as the courtroom erupted in laughter.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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