Brief of Amicus Curiae of Competitive Enterprise Institute in Gundy v. US

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Herman Gundy was convicted of violating the Sex Offender Registration and Notification Act (“SORNA”). Pub. L. No. 109-248, tit. I, 120 Stat. 587 (2006) (codified as amended at 34 U.S.C. § 20911 et seq.). SORNA itself does not specify whether its criminal penalties apply to individuals, such as Mr. Gundy, who were convicted of a sex offense prior to the statute’s enactment. Instead, SORNA empowers the Attorney General to resolve this crucial question— along with any other rules of conduct the Attorney General wishes to impose on such individuals. 34 U.S.C. § 20913(d) (“The Attorney General shall have the authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with [initial registration].”). 

Deciding which rules will govern Mr. Gundy’s conduct is the sole province of this nation’s legislature, not the Attorney General. This principle has deep roots in English common law. Sir Edward Coke declared that the executive could not “create any offence by his prohibition or proclamation, which was not an offence before.” Case of Proclamations [1610], 3 77 ER 1352 (KB). When this principle was ignored, by delegating lawmaking power to the King in the Proclamation by the Crown Act (1539), Sir William Blackstone called it “the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom.” 1 Commentaries on the Laws of England *271 (1765).

Our Founders implemented this restriction in the Constitution through the Legislative Vesting Clause, U.S. Const. art. I, § 1, which in turn is properly interpreted in accordance with the common law of agency. The common law prohibits the subdelegation of any power that requires discretion or judgment. In contrast, ministerial duties, which are mandatory and essentially involve no discretion, may be subdelegated. This is the essence of the nondelegation doctrine. 

The Legislative Vesting Clause provides that only Congress has discretionary power over the general rules of private conduct. Ministerial duties, such as duties conditioned on whether a certain event has occurred, may be delegated by Congress.

During World War II, the Court, in response to the wartime emergency, allowed Congress to go beyond this limit. Congress’ power was expanded to allow delegations not only to answer factual questions, but judgmentally select the facts on which policy is based. While not necessary for this case, the Court should overrule these opinions to clarify the nondelegation doctrine.

SORNA delegates discretionary power to the Attorney General over the conduct of many private individuals. No factual determination is required of the Attorney General; instead, it is entirely up to his discretion. Such a delegation is inconsistent with the original meaning of the Legislative Vesting Clause, and the Court should rule it unconstitutional.

Read the full brief here.