Can DOJ Define the Crimes It Prosecutes? The Court Must Decide.

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Herman Avery Gundy was convicted of sexual assault in Maryland and served time in the state’s prison system. After his prison term ended, Gundy failed to reregister as a sex offender when he moved between states, as was required by state law. In a remarkable twist of fate, his case, Gundy v. U.S. — heard earlier this month at the Supreme Court — may completely upend Congress’s habit of handing off vast powers to unelected bureaucrats.

Gundy’s problem was compounded because, starting in 2006, Congress required all new sex offenders to register with their state government. Apparently stumped over what to do with people like Gundy who were convicted of a sex offense before the law went into effect — an estimated half a million people — Congress threw up its proverbial hands and left it to the U.S. Attorney General to sort out.

This may be politically convenient for Congress but it is a major problem for everyone who must live in a world run by unelected, unaccountable bureaucrats. In Gundy’s case, he was, in effect, convicted of violating a law that does not exist because Congress failed to fill in the blanks. That’s not fair to any American citizen.

Under a Supreme Court precedent called the “Non-Delegation Doctrine,” Congress cannot delegate excessive policy-making authority to the executive branch. In fact, the injustice of over-delegating important policies was recognized at least as far back as 18th-century England, before the United States was founded. It was generally understood that only Parliament could create law, and the one time Parliament delegated its lawmaking authority to the king, Sir William Blackstone denounced the effort as “the most despotic tyranny” which would “have proved fatal to the liberties of this kingdom.” Both John Locke and Sir Edward Coke also said this sort of delegation was beyond the power of the king.

When drafting the United States Constitution, the Founders relied upon these established principles. But there was an exception made for delegations that do not involve discretion, such as questions of fact.

The court has allowed very vague delegations in the past, but also ruled there had to be at least some guiding principle to guide such delegation. In court, the government tried to argue there was implicit guidance given to the attorney general — namely, to apply the act to the “maximum extent feasible” and thus to register as many sex offenders as possible. But as Justice Sonia Sotomayor noted during oral argument, there are “no plain words that add ‘maximum feasibility’ in this statute.”

Justice Gorsuch pointedly asked the government if Congress had delegated authority to the attorney general to come up with registration requirements for post-enactment offenders as well. The government suggested that even such a complete delegation over what behavior of all future and past sex offenders would constitute crimes could constitutionally be delegated to the attorney general.

Justice Breyer voiced concern that this case could upend the modern administrative state and put hundreds of thousands of regulations in jeopardy. That was unlikely when the case was initially argued, with four justices apparently opposed to such a broad interpretation. But if the court splits four to four and orders the case to be reargued, with Justice Kavanaugh now as a potential deciding vote, this certainly seems possible.

For the last 85 years, the court has upheld every delegation of power from Congress to the administrative state. The Gundy case could disrupt that streak. It could reshape the power regulatory agencies exercise over all of our lives.

Originally published at Real Clear Policy.