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But, the government contends, that discretion is limited to a “defined subset of sex offenders,” and indeed is no different from a scheme in which Congress itself required all pre-SORNA offenders to register and instead authorized the attorney general to issue exemptions from that requirement.The government denies that the delegation in SORNA implicates retroactivity or federalism concerns, the void-for-vagueness doctrine or the law of deference.In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.Beyond the law of sex-offender registration, the approach the court takes in could have repercussions across the law of the administrative state.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 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.Gundy contends that other SORNA provisions that speak to the need for a “comprehensive national system” of registration or the goal of “protect[ing] the public” neither supply an intelligible principle nor dictate the answers to key policy judgments and value choices that Congress is required to make.Gundy adds that SORNA’s delegation to the executive offends retroactivity doctrine and federalism concerns to boot.Identifying a host of questions that SORNA leaves unanswered, Gundy argues that the delegation contains no guidance, let alone the requisite “substantial guidance,” on how the attorney general should wield her authority in this important area.Instead, Gundy says, SORNA confers on the attorney general — the “nation’s top prosecutor” — the “unguided discretion” to subject hundreds of thousands of individuals to the act’s registration requirements and its criminal enforcement provisions.