Amicus Brief: Herman Avery Gundy v. United States


NCLA argued that the court of appeals’ judgement should be reversed for four separate and independent reasons. First, 34 U.S.C. § 20913(d) violates the Constitution by divesting Congress of legislative powers and transferring those powers to the Attorney General. Second, § 20913(d) failed to provide an “intelligible principle” to guide the Attorney General’s discretion, as current Supreme Court doctrine required. Third, the Constitution did not allow the Attorney General to simultaneously create and execute a rule like 28 C.F.R. § 72.3 that he was charged with enforcing. Fourth, the Constitution does not permit criminal offenses to be defined in administrative rules rather than statutes.

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CASE: Herman Avery Gundy v. United States


DOCUMENT: No.17-6086

COUNSEL FOR AMICUS CURIAE: Philip Hamburger, Mark Chenoweth, Margaret A. Little

FILED: June 1, 2018


June 1, 2018 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of Petitioner
Click here to read the full document.


June 1, 2018 | New Civil Liberties Alliance to Supreme Court: “Don’t let the Attorney General write criminal laws”

Washington, D.C. — The Constitution vests all legislative powers in Congress, and thus bars Congress from splitting its authority with an unelected executive official. Nonetheless, when Congress in 2006 wrote the rules for registration of sex offenders in the Sex Offender Registration and Notification Act (SORNA), it gave a blank sheet, with no guidelines, to the Attorney General to create registration rules for past offenders.

This executive lawmaking is being challenged at the U.S. Supreme Court in Gundy v. United States. Although the particular case concerns registration rules for sex offenders, the decision here will have sweeping implications for all sorts of executive lawmaking. The New Civil Liberties Alliance (NCLA) therefore today filed an amicus brief urging the Court to recognize that its doctrines have legitimized a wide range of unconstitutional executive lawmaking.

“Congress cannot surrender its lawmaking authority,” said Mark Chenoweth, NCLA Executive Director and General Counsel. “Worse yet, Congress may not assign the drafting of criminal laws to the Attorney General, who is the nation’s top prosecutor.”

NCLA’s central legal points include:

•The Supreme Court should abandon its term “delegation” and should instead use the Constitution’s vesting language. That is, it should recognize that, because the Constitution vests legislative power in Congress, Congress cannot divest itself of this power.

•The Court’s “intelligible principle” test is a legal fiction. It is inexcusable to rely on this test to justify executive exercise of legislative power where Congress does not even supply an intelligible principle for the executive to use.

•The Court should not excuse the Attorney General’s conduct by focusing merely on the unconstitutionality of the underlying statute. In exercising legislative power, and in violating his duty (derived from the president) to take care that the laws be faithfully executed, the Attorney General himself is acting unconstitutionally, and the Court should hold his conduct unlawful and void.

For copies of the amicus brief, call 703.403.1111, email or visit our website

NCLA, headquartered in Washington, D.C., is a nonprofit, civil liberties organization dedicated to protecting Americans’ constitutional rights. NCLA brings pro bono litigation against administrative threats to civil liberties and seeks to spur a broader civil liberties movement against such dangers. 

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