Sunday, March 18, 2018

Supreme Court to examine SORNA's application to pre-SORNA offenders---under the nondelegation doctrine

Do you have a client charged with a SORNA offense? Did that client's registration-triggering conviction predate SORNA? If so, you might be tempted to argue that ex post facto principles prohibit any conviction under SORNA. And we hope that you win that argument. But there may be a better argument---one that the Supreme Court will be considering next term: Whether Congress violated the nondelegation doctrine when it left it to the attorney general to decide whether to apply SORNA retroactively.

This is the question that the Supreme Court has decided to answer in Gundy v. United States:
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.
With the cert grant in Gundy, it's important to preserve this issue. But don't assume it's a dead-bang winner. The last time the High Court relied on the nondelegation doctrine to strike a federal law was in 1935.

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