The Roberts Court, June 1, 2017. Seated, from left to right: Justices Ruth Bader Ginsburg and Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas and Stephen G. Breyer. Standing, from left to right: Justices Eleana Kagan, Samuel A. Alito, Sonia Sotomayor, and Neil M. Gorsuch. Photograph by Franz Jantzen, Supreme Court Curator’s Office.

Gundy v. United States is a case to be argued before the Supreme Court. This case deals with the non-delegation doctrine. Article I, Section I of the United States Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Read strictly, this implies Congress may not delegate any of its powers to other agencies, as only Congress may create law. However, precedent, such as J. W. Hampton, Jr., & Co. v. United States, have drastically softened this restriction. The non-delegation doctrine today functions under the ‘intelligible principle’ test. This test simply requires that Congress lay down an intelligible principle to which the delegated actor must conform. For example, if Congress delegated tax-making authority to a certain actor, it might set the intelligible principle of having all taxes be less than a certain percentage of an individual’s income. Gundy focuses on a specific portion of SORNA (Sex Offender Registration and Notification Act). 42 U.S.C. § 16913(d) 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) of this section,” (emphasis added).

Subsequently, the question posed by Gundy is, “Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.”

In its brief, the Government suggests that to meet the intelligible principle test, only a showing of a provision of a ‘general policy’ is enough. The Court should reject this as a tautology – both require a generally applicable principle. Even if determined to be separate terms, the Government’s construction of ‘general policy’ is overbroad and incorrect. It first attempts to suggest that, with provision of a ‘purpose’, the general policy can be established. However, this would potentially allow Congress to delegate all of its authority, as all acts could be construed to have a purpose. A showing of legislative intent cannot be the metric by which a non-delegation challenge must be judged, as the application of this rule would not comport with precedent that dealt with purposeful legislation yet struck them down. The Government also suggests that, for a limited delegation of authority, such as under Gundy, less strict guidance is necessary. While this concept is supported by precedent, it does not entail a complete removal of guidance – intelligible principles must still be supplied.

The detailing of the scope of the Attorney General’s power should not be construed to imply an intelligible principle. The containment of scope details what policy decisions the actor may make, while the intelligible principle details what factors must be considered in making policy decisions. The subsection gives no intelligible principle – it just delegates authority. Therefore, the intelligible principle test is not met.

The decision of the Second Circuit should be overturned.

Sources

Brief of Petitioner, at https://www.supremecourt.gov/DocketPDF/17/17-6086/48309/20180525141125861_Brief%20for%20Petitioner.pdf

Brief of Respondent, at https://www.supremecourt.gov/DocketPDF/17/17-6086/58355/20180802190422595_17-6086bsUnitedStates.pdf

Statute, at https://codes.findlaw.com/us/title-42-the-public-health-and-welfare/42-usc-sect-16913.html

J.W. Hampton case, at https://en.wikipedia.org/wiki/J._W._Hampton,_Jr.,_%26_Co._v._United_States

U.S. Constitution, at https://www.senate.gov/civics/constitution_item/constitution.htm

American Power and Light case, at https://supreme.justia.com/cases/federal/us/329/90/#104

Case history summary, at http://www.scotusblog.com/case-files/cases/gundy-v-united-states/