Dissenters in Gundy v. United States Agree with NCLA’s Amicus Brief, Cite to NCLA Scholars

Washington, D.C. — Today, the U.S. Supreme Court handed down its decision in Gundy v. United States in which it upheld the federal government’s authority under the Sex Offender Registration and Notification Act (SORNA), a 2006 law requiring sex offenders to register with local authorities. In an opinion authored by Justice Kagan, a plurality of the Court decided that the statute provided sufficient direction to the Attorney-General (a so-called “intelligible principle”) in his application of the law. It also held that the statute was explicit enough in specifying that it applies to pre-Act offenders.

The Court rejected convicted sex offender Herman Gundy’s argument that in passing the law, Congress divested too much lawmaking authority to the Attorney-General in violation of a principle of constitutional law called the “nondelegation doctrine.” Though often neglected by courts, that doctrine forbids Congress from assigning legislative powers to the executive branch.

Although Justice Alito concurred in the 4-1-3 judgment issued by JJ. Kagan, Breyer, Ginsburg, and Sotomayor, he also proclaimed that he would be willing to revisit the Court’s approach to the nondelegation doctrine in a future case where a majority of the Court was willing to do so, implying that he believes the current doctrine is too lax in what it permits Congress to delegate. That majority was missing here, likely in part because Justice Kavanaugh was not yet seated when the Court heard this case last fall.

The New Civil Liberties Alliance filed an amicus brief in Gundy on June 1, 2018, urging the court to revive the nondelegation doctrine and repudiate the legal fictions that have allowed Congress to divest its legislative power. NCLA also pointed out the serious problems associated with allowing the nation’s top cop to write the criminal laws he is charged with enforcing.

NCLA believes that the Supreme Court should abandon the misleading term “delegation” and instead recognize that Congress cannot “divest” itself of the power provided exclusively to the legislative branch by the Constitution. In his dissent, Justice Gorsuch echoed portions of NCLA’s argument, adding “if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?” NCLA was pleased to see that the dissent cited not only our founder, Prof. Philip Hamburger, but also our Advisory Board Chairman, The Hon. Janice Rogers Brown, as well as two other members of NCLA’s Board of Advisors, Prof. Gary Lawson and Prof. David Schoenbrod.

“NCLA agrees with the Gundy v. U.S. dissenters that allowing ‘the nation’s chief prosecutor the power to write his own criminal code’ is ‘delegation running riot’—even for this single statute.  However, we take solace in the apparent willingness of at least four justices to consider reviving and reinvigorating the nondelegation doctrine. NCLA will be on the lookout for an appropriate case to bring to the Court’s attention for that purpose.”
Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance

“While the plurality opinion failed to address Congress’s disturbing delegation of lawmaking powers to the Attorney General—who also enforces the law—there is much to celebrate in today’s ruling. Justice Gorsuch, joined by The Chief Justice and Justice Thomas, eloquently made the case for why Congress cannot divest its lawmaking powers to the Executive. Anyone concerned about Americans’ civil liberties should be heartened by that view. Justice Alito’s concurrence leaves the door open to revitalization of this core constitutional principle. NCLA looks forward to seeing the full Court breathe new life into the nondelegation doctrine in future proceedings.”—Peggy Little, Senior Litigation Counsel, New Civil Liberties Alliance


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.