Rarely does a request for en banc review advance the case (unless you are the government). But when an en banc denial spins off four dissenters and two written dissents, the case is noteworthy. Or even cert-worthy. That case is US v. Nichols. From Tim Henry, AFPD in Wichita representing Mr. Nichols,
Think back, way back, even before law school; back to American History class in middle school. Do you remember being taught that there are three branches of government that act as a check or balance against each other’s powers, and that this evidenced the constitutional principle of Separation of Powers? Well, the members of the 109th Congress were clearly so brilliant in their childhood that they skipped over that year of middle school. Thus, in the summer of 2006, Congress enacted SORNA (Sex Offender Registration and Notification Act) which gave exclusive discretion to the Attorney General to determine whether SORNA would apply to pre-enactment offenders which, by most estimates, total approximately a half a million people in the United States. See 42 U.S.C. sec. 16913(d).
No guidance was given by Congress to the Attorney General but for a short declaration of purpose found at section 16901 that simply states a “comprehensive national system for the registration of” sex offenders is needed to “protect the public.” Nothing more. This discretion could be that SORNA could apply to none, some (depending on the severity of the prior conviction), or all pre-enactment offenders. To no one’s surprise, then Attorney General Alberto Gonzalez decided that SORNA should apply to all pre-enactment offenders.
To those who also had American History in high school, you would likely recognize that such vast delegation of authority by the Legislative branch to the Executive branch may raise some Separation of Powers’ hairs on the back of your neck. Not so with Congress, or with a lot of courts that rarely delve into the minutia of the Non-Delegation Doctrine which is dusted off ever generation or so, only to be sent back to the dusty shelves of our vanishing law libraries.
But alas, there is one judge, Judge Gorsuch of the Tenth Circuit, who said enough is enough. Joined by three other circuit judges, Judge Gorsuch wrote an opinion taking Congress to task for giving no guidance to the Attorney General when deciding who and how SORNA was to be implemented on pre-enactment offenders. SORNA failed even to meet the very low “intelligible principle” standard.
In Touby v. United States, 500 U.S. 160, 166 (1991), the Supreme Court suggested an even higher standard than “intelligible principle” is needed where regulatory activity by the Executive branch carries with it criminal consequences. There, it was suggested the Congressional enactment must provide “meaningful constraint” over the delegation of power to the Executive branch.
Judge Gorsuch, who is known for his well-written and sometimes entertaining opinions, doesn’t disappoint here. “If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.” Taking a cue from Justice Scalia’s dissent in Reynolds v. United States, Judge Gorsuch says SORNA’s delegation to the Attorney General here “doesn’t just sail close to the wind. It sails right into it.”
Judge Gorsuch makes an important distinction between administrative delegation, e.g., by Congress to the EPA in enforcing the Clean Air Act, and delegation in the criminal context where a “conviction and sentence represent the ultimate intrusions on personal liberty.” “When it comes to legislative delegations we’ve seen, too, that the framers’ attention to the separation of powers was driven by a particular concern about individual liberty and even more especially by a fear of endowing one set of hands with the power to create and enforce criminal sanctions.”
Judge Gorsuch “distill[s]” the higher “meaningful constraints” standard suggested in Touby to at least three “meaningful” limitations for Congress to constitutionally delegate its legislative authority to the Executive branch in the criminal context. “(1) Congress must set forth a clear and generally applicable rule [ ] that (2) hinges on a factual determination by the Executive [ ] and (3) the statute provides criteria the Executive must employ when making its finding [ ].”
True, some might try to pass off the question of SORNA’s applicability to past offenders as a mere “detail.” But the statute before us leaves the Attorney General with “unfettered discretion to determine both how and whether SORNA [is] to be retroactively applied” to a half-million individuals under threat of criminal prosecution from his own deputies.[ ] And however far you want to bend the boundaries of what qualifies as a “detail” it’s hard to see how that might qualify. Our case just isn’t anything like your grandfather’s tax stamp challenge.
“[I]n a delegation challenge the question isn’t whether the Executive is likely to exercise the delegation in one way or another but whether Congress is empowered to delegate the decision at all.” And if they do, there must be a direct link between discretion and direction, i.e., the discretion given by Congress must be tied to specific statutory provisions that expressly direct the exercise of the discretion. Here, SORNA has no direct statutory link between discretion and direction. The United States admitted as much in their brief in Reynolds v. United States, 132 S.Ct. 975 (2012), where they acknowledged the Attorney General is free to apply SORNA to no pre-enactment offenders, to all of them, or somewhere in between.
For those of you who represent clients charged with SORNA violations, please preserve not only the above Non-Delegation Doctrine challenge for pre-enactment offenders, but also the challenge raised for those whose clients flee to other foreign countries that no longer reside in an “enumerated jurisdiction.” There is a clear split between the Tenth and Eighth Circuits on this issue that is fully briefed in Nichols Petition for Rehearing En Banc which you should be able to retrieve off of your legal research service. If not, contact any of the Kansas FPD offices and we will e-mail the petition to you.
-- Tim Henry