Gundy v. United States: Gunning for the Administrative State
18 Pages Posted: 1 Dec 2019 Last revised: 4 Dec 2019
Date Written: November 8, 2019
The Supreme Court's recent decision in Gundy v. United States, anticipated to be a blockbuster decision that might undo the modern administrative state, turned out to be a constitutional non-event. Gundy argued that Congress violated the nondelegation doctrine when it ceded authority to the U.S. Attorney General to decide the retroactive applicability of the federal Sex Offender Registration and Notification Act (SORNA) to individuals convicted before its 2006 enactment. Gundy, whose rape conviction was in 2005, was convicted in 2012 of a federal felony under SORNA, as a result of its retroactive application. A five-Justice plurality rejected Gundy's challenge, applying the same doctrine it has used to reject nondelegation challenges for the past eighty years.
This symposium contribution argues that Gundy not only did not live up to its fanfare; it was a lost opportunity for the Court to provide a more robust nondelegation doctrine, one likely having appeal across the Court’s political spectrum. In particular, the Court could have enunciated a new, more demanding test applicable only to delegations of criminal justice authority, like SORNA. Such an approach, which would require more guidance from Congress on delegated decisions, and thus constrain delegation, would be justified given the recognized distinctiveness of criminal sanctions. In addition to critiquing the Court's decision in Gundy, the paper discusses why such a distinct approach is warranted, and notes both the challenges it would present and its ancillary benefits, including much-needed clarification of criteria used to distinguish civil and criminal sanctions.
Keywords: Gundy, nondelegation, sex offender, SORNA, Megan's Law, registration and notification
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