Gundy v. United States, 139 S. Ct. 2116

Background

SORNA (2006) creates federal sex-offender registration scheme with detailed rules for post-Act offenders but leaves treatment of >500,000 pre-Act offenders to 34 U.S.C. § 20913(d), which grants the Attorney General authority to “specify the applicability” of the Act to pre-Act offenders and to “prescribe rules for the registration” of such offenders.
Congress left no express standard in § 20913(d); Attorneys General have adopted divergent rules over time (ranging from no action to full application to selective application), and DOJ acknowledged the statute does not compel action or set timing.
Herman Gundy, a pre-Act offender, was prosecuted under an Attorney General rule that applied SORNA’s registration requirements retroactively, exposing him to a 10-year federal sentence for failing to register under those rules.
The constitutional question: whether § 20913(d) unlawfully delegates Congress’s legislative power to the Attorney General in violation of the separation of powers (nondelegation doctrine).
The concurrence (Alito) votes to affirm because the statute meets the Court’s longstanding intelligible-principle approach; the dissent (Gorsuch, joined by Roberts and Thomas) would invalidate the delegation as a paradigmatic and dangerous abdication of legislative duty.

Issues

Issue	Gundy's Argument	Government/Plurality Argument	Held
Whether § 20913(d) unlawfully delegates legislative power by leaving applicability and content of registration rules for pre-Act offenders to the AG	§ 20913(d) grants essentially unlimited policy-making authority to the AG—blank check delegation to write criminal-law obligations	The statute should be read (or salvaged) to limit AG discretion (e.g., to apply SORNA to pre-Act offenders "to the maximum extent feasible") or otherwise falls within permissible delegation doctrines	Majority (per plurality + Alito concurring in judgment) did not invalidate; Gorsuch dissent would find the delegation unconstitutional and would invalidate the statute
Whether § 20913(d) can be characterized as conditional legislation triggering only executive fact-finding	The provision does not set factual predicates or criteria; it authorizes pure policymaking, not limited fact-finding	The government/ plurality try to construe the statute’s purpose, definitions, or Reynolds precedent to supply constraints that make the AG’s role one of filling-in details or applying feasible coverage	Court declined to adopt a limiting reading that cures the delegation problem; dissent rejects purportedly salvaging constructions as inconsistent with text
Whether legislative-history, definitions, or other provisions supply an intelligible principle or feasibility limitation	Legislative history and definitional provisions do not impose a feasibility standard; Congress purposely left decisions to the AG	Government and plurality point to SORNA’s stated purpose, the definition of "sex offender," the clause about those "unable to comply," and Reynolds as sources of limiting guidance	Dissent finds those sources inadequate; plurality relies on narrower statutory readings or deference doctrines to avoid deciding a broader nondelegation ruling
Whether longstanding precedents (intelligible principle, major-questions, vagueness) permit upholding § 20913(d)	Gundy argues precedent does not allow Congress to leave core legislative choices to a single executive official; historical separation-of-powers principles require reversal	Government emphasizes the Court’s modern permissive approach (intelligible-principle), plus doctrines that constrain agency power (major questions, vagueness) as reasons to avoid invalidation	The Court did not adopt a broad nondelegation revival; dissent urges reexamination and stricter enforcement of separation-of-powers limits

Key Cases Cited

Whitman v. American Trucking Ass'ns., 531 U.S. 457 (2001) (reaffirmed modern intelligible-principle nondelegation standard)
Schechter Poultry Co. v. United States, 295 U.S. 495 (1935) (struck down delegation as "delegation running riot")
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (invalidated delegation lacking standards or policy direction)
J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928) (articulated the "intelligible principle" test)
Wayman v. Southard, 23 U.S. 1 (1825) (distinguished legislative policy from permissible delegation to fill in details)
Touby v. United States, 500 U.S. 160 (1991) (upheld limited temporary scheduling under the Controlled Substances Act where statutory criteria constrained executive action)
Reynolds v. United States, 565 U.S. 432 (2012) (construed SORNA to leave applicability to pre-Act offenders to the Attorney General)