How a strange Supreme Court case involving sex offenders could gut the EPA

Guess we've got to relitigate the 1930s now.

Environmental Protection Agency Administrator and adversary Scott Pruitt smiles. (Photo by Molly Riley-Pool/Getty Images)
Environmental Protection Agency Administrator and adversary Scott Pruitt smiles. (Photo by Molly Riley-Pool/Getty Images)

Gundy v. United States is an extraordinarily technical case involving the legal obligations of sex offenders convicted more than a decade ago. Yet it also asks the Supreme Court to reopen a door that was nailed shut during the Franklin Delano Roosevelt administration. And should that door be opened, it could have sweeping legal consequences, potentially hobbling entire federal agencies and rendering much of American law unenforceable.

Gundy involves the Sex Offender Registration and Notification Act (SORNA), which, as the name suggests, requires certain sex offenders to register “in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” When a registered sex offender moves from one state to another, they are required to re-register in their new home state.

The petitioner in this case, Herman Avery Gundy, was convicted of a sex offense in 2005. His case is unusual because he was charged with violating SORNA while he was still in federal custody — he allegedly violated the law by failing to register in New York after he was transferred from a prison in Pennsylvania to a halfway house in the Bronx. Gundy’s lawyers argued that sex offenders are not required to register until after they are released from custody, but the Supreme Court ignored these arguments.

Instead, the Court will consider a narrow question regarding the Attorney General’s power to apply SORNA to Mr. Gundy. And, depending on how the Supreme Court resolves this question, the Court could potentially upend a vast array of environmental, labor, and other business regulations.


SORNA was enacted in 2006, and it applied automatically to all sex offenders who were convicted after it took effect. The provision of SORNA at issue in Gundy provides that “the Attorney General shall have the authority to specify the applicability of the requirements of this subchapter 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.”

Pursuant to this power, the Justice Department issued a sweeping rule which provided that “the requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” Thus, even though Gundy was convicted in 2005, before SORNA was law, DOJ regulations require him to register as a sex offender.

Gundy’s lawyer argues, however, that this delegation of authority to the Attorney General violates a largely defunct constitutional doctrine known as “Nondelegation.”

The Nondelegation Doctrine briefly reared its head during the New Deal, at which time the Supreme Court used it to strike down laws delegating authority to the Roosevelt administration. It holds that there are limits on Congress’ power to delegate certain authority to federal agencies, and that laws which exceed these limits are void.

As a practical matter, however, the doctrine is difficult to administer, and the Constitution itself provides few hints on how courts should determine which delegations of power are unconstitutional. Even Neil Gorsuch, who, as a Tenth Circuit judge, called for the doctrine to be revived, acknowledged that “delegation doctrine may not be the easiest to tease out and it has been some time since the Court has held a statute to cross the line.”

The Supreme Court, for its part, has held that Congress does not run afoul of the Nondelegation Doctrine unless it offers no guidance whatsoever to agencies on how they should exercise their delegated powers. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform,'” the Court explained in Mistretta v. United States, “‘such legislative action is not a forbidden delegation of legislative power.'”

Yet the provision of SORNA at issue in Gundy does, in former Justice Antonin Scalia’s words, sail “close to the wind with regard to the principle that legislative powers are nondelegable.” Unlike other federal laws delegating authority to federal agencies, SORNA does not place many explicit limits on which sex offenders can be required to register by the Attorney General.

Notably, Justice Ruth Bader Ginsburg joined Scalia’s dissenting opinion expressing concerns about this delegation of power, so Scalia’s concerns cross partisan lines.

One way that the Supreme Court could resolve Gundy, in other words, would be to hand down an exceedingly narrow opinion singling out this one provision of law as unusual, but reaffirming the general rule that courts should not apply the Nondelegation Doctrine aggressively. Such a decision wouldn’t need to break from existing law, but it also would not have many implications for future cases.

The Constitution is vague and a too-strong Nondelegation Doctrine could easily be wielded to implement the justices’ policy preferences. A narrow decision in Gundy would avoid a world where agency regulations stand or fall largely based on whether five members of the Court agree with them.

Enter Neil Gorsuch

Nevertheless, there are many influential voices who would very much like to live in a world where Nondelegation is wielded to halt progressive regulation. Beginning in the Obama administration, the conservative Federalist Society grew obsessed with finding ways to roll back agency regulations and to cut out the legs of agencies like the EPA. Now, the Federalists play a major role in choosing Donald Trump’s judicial nominees — including Supreme Court appointee Neil Gorsuch — and they remain just as obsessed with reviving doctrines such as Nondelegation.

The theme of the Society’s most recent annual lawyer’s meeting was “Administrative Agencies and the Regulatory State.” Its headline speaker was Gorsuch.

Meanwhile, Gundy won’t be the first time that Gorsuch considered the impact of the Nondelegation Doctrine on SORNA. In a 2015 opinion Gorsuch wrote as an appellate court judge, the Supreme Usurper In Waiting criticized the very provision at issue in Gundy. He also suggested several ways that the Court could strengthen the Nondelegation Doctrine, some of which were quite radical.

At one point, Gorsuch seems to suggest that agencies may only resolve very narrow questions. If Congress provides, for example, “that margarine manufacturers must pay a tax and place a stamp on their packages showing the tax has been paid — Congress may leave to the President ‘details’ like designing an appropriate tax stamp.” Congress may also provide that certain regulations are triggered by “a factual finding by the President.”

But it is far from clear that Gorsuch, were it up to him, would allow anything resembling a modern environmental regulatory regime to exist. Current law, for example, requires the EPA to monitor the energy industry, determine “the best system of emission reduction” that can be achieved using current technology in a cost-effective manner, and require certain polluters to implement that system. That requires a great deal more discretion by agency officials than what goes into designing a tax stamp.

The Nondelegation Doctrine is defunct, largely because there are few good ways to determine when it should or should not be invoked. So it is better to leave such matters up to an elected legislature than to give unelected judges a sweeping new power to invalidate federal regulations. As an immediate matter, Gundy involves a narrow provision of law which treads very close to the edges of Nondelegation, and a responsible Court could rule in favor of Mr. Gundy without opening a can of worms.

But you go to court with the judges you have, not the ones who you can rely on to exercise their power responsibly. The Republicans who control the Supreme Court are under considerable pressure to invigorate the Nondelegation Doctrine and to use it for partisan ends. Should they revive Nondelegation in Gundy, there are no assurances that they won’t become intoxicated with their new power.