Today, in Gundy v. United States, Case No. 17-6086, in a 4-1-3 decision, the Supreme Court affirmed a Second Circuit opinion that had held that Congress had not unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of the Sex Offender Registration and Notification Act (SORNA) registration requirements to pre-Act offenders. Four justices specifically held that 34 U.S.C. § 20913(d) – which requires the Attorney General to apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment – was not an unconstitutional delegation of Congressional authority. In his concurring opinion, Justice Alito indicated that he was receptive to reconsidering nondelegation arguments, but a majority of the Court was not willing to reconsider its precedent in allowing Congress to delegate some of its legislative powers. As such, Justice Alito stated that “it would be freakish to single out the provision at issue here for special treatment." Justice Kavanaugh took no part in the consideration or decision of the case.
Merits briefing is available on the Supreme Court’s website, here. The Training Division provides sentencing resources on constitutional and statutory challenges to SORNA.