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Unless the attorney general “validly specifie[d]” that SORNA was applicable to pre-SORNA offenders, the court held, SORNA’s registration requirement did not apply to them, and the case therefore had to be remanded so the 3rd Circuit could decide on the interim rule’s validity.
(On remand, the 3rd Circuit concluded that the attorney general had failed to comply with the Administrative Procedure Act’s requirement of notice-and-comment rulemaking in issuing the interim rule, and it vacated Reynolds’ conviction.) Justice Antonin Scalia dissented in , and he was joined in this dissent by — and only by — Justice Ruth Bader Ginsburg.
In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules.
One of these cases reached the Supreme Court in 2012 in . Court of Appeals for the 3rd Circuit rejected Reynolds’ argument because that court had earlier held that SORNA by its own terms required pre-SORNA offenders to register; the validity of the interim rule, it reasoned, was thus irrelevant to Reynolds.
Later that year, he was arrested and indicted for violating SORNA for failure to register as a sex offender upon traveling to New York from Pennsylvania. Gundy argues that “an originalist interpretation of the Constitution” flatly forbids such a delegation of legislative power.
Upon leaving that facility two months later, Gundy remained in New York. Gundy contends that the power wielded by the attorney general here is an immense one and “quintessentially legislative” — the power to “prescribe rules, backed by criminal sanctions, governing the conduct of roughly half a million people” — and such a delegation cannot be constitutional.Gundy was convicted in 2005 of the rape of an 11-year-old girl and sentenced to 20 years in prison.In 2010, Gundy began serving a federal prison sentence for violating the terms of his supervised release, and the Bureau of Prisons moved him from Maryland to a prison in Pennsylvania. 20913(d)] violates the nondelegation doctrine.” Gundy’s merits brief contends that SORNA’s delegation to the attorney general violates a core principle of separation of powers: that only Congress can legislate.That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.” The prudent course, Scalia urged, would be to interpret the statute narrowly so that it steered clear of the constitutional shoals of the nondelegation doctrine, the principle that Congress cannot transfer its power to legislate to another branch of government.The issue flagged by the dissent has lingered ever since: Does SORNA’s delegation to the attorney general violate the nondelegation doctrine? In 2008, the attorney general promulgated guidelines that applied SORNA’s registration requirement to pre-SORNA sex offenders, among them Gundy.