News You Can Use: SCOTUS refrains (for now) from reviving nondelegation doctrine in Gundy v. United States

By Perrin Tourangeau

Perrin is a summer intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.  She is a rising second-year law student at the University of Virginia School of Law.  She was born and raised in Denver, and hopes to return to Colorado after finishing law school to pursue a career in public defense.

 In  Gundy v United States, a plurality of the Supreme Court narrowly dodged a nondelegation conflict presented by a challenge to the Sex Offender Registration and Notification Act (SORNA). Justices Kagan, Ginsburg, Breyer, and Sotomayor concluded that a SORNA provision which gives the Attorney General the authority “to specify the applicability” of SORNA’s registration requirements to sex offenders who were convicted before its enactment (pre-Act offenders) was a “distinctly small-bore” legislative delegation and, thus, “easily passes [constitutional] muster.” Gundy v. United States, –S. Ct.–, 9, 2019 WL 2527473 (2019); see 34 U.S.C. § 20913(d).

The nondelegation doctrine prohibits Congress from transferring its legislative power to another federal branch. Id. at 2. However, Congress can “confer substantial discretion on executive agencies to implement and enforce the laws, so long as it “supplie[s] an intelligible principle to guide the delegee’s use of discretion.” Id. at 4. While the provision in question does not explicitly impose a limitation on the Attorney General’s discretion regarding the application of SORNA to pre-Act offenders, based on the statute’s declaration of purpose, definition of “sex offender,” and legislative history, the plurality interpreted it to confine “the Attorney General’s discretion … only to considering and addressing feasibility issues” of applying the statute to pre-Act offenders, rather than allowing the Attorney General to decide whether or not to apply the statute to pre-Act offenders in general. Id.at 4-7. Therefore, the Court held that, because SORNA requires “the Attorney general [to] apply SORNA’s registration requirements as soon as feasible to offenders convicted before the enactment,” the statute provides an intelligible principle limiting the Attorney General’s authority and, thus, does not violate the nondelegation doctrine. Id. at 2.

The plurality expressed its hesitation to use the nondelegation doctrine to invalidate the provision, stating that “if SORNA’s delegation is unconstitutional, then most of the Government is unconstitutional,” and highlighting Congress’s need to delegate authority “under broad general directives.” Id. at 9 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). As noted on SCOTUS Blog, “[t]he lineup in Gundy shows that there are four justices … who are still willing to use the tools of statutory interpretation to fend off the nondelegation problem.” Mila Sohoni, Opinion analysis: Court refuses to resurrect nondelegation doctrine, SCOTUSBlog (June 20, 2019).

Justice Alito concurred in the judgment only, stating that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” Id. at 10 (Alito, J., concurring in the judgment).

Justice Gorsuch, joined by Justice Thomas and the Chief Justice, dissented, taking issue with both the plurality’s interpretation of SORNA and its nondelegation analysis. Id. (Gorsuch, J., dissenting). Looking to contradictory representations about the provision’s meaning made by the government in previous cases and the lack of an explicit standard limiting the delegation in the statute’s text, the dissent concluded that SORNA’s delegation impermissibly authorizes “the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing” and provides no meaningful standard by which to limit that delegation. Id. at 22-23. Justice Gorsuch stated that in a previous case, “the government told this Court that SORNA supplies no standards regulating the Attorney General’s treatment of pre-Act offenders. This Court agreed, and everyone proceeded with eyes open about the potential constitutional consequences; in fact, the dissent expressly warned that adopting such a broad construction … would yield the separation-of-powers challenge we face today.” Id. at 25. Although Justice Gorsuch described the plurality’s feasibility standard as “imaginary,” he noted that even were it explicitly written into the section at issue, it is too ambiguous to actually cabin the executive’s exercise of the statutory delegation. Id. at 23.

The dissent proposes a more potent (or, as the dissent suggests, more constitutionally faithful) version of the nondelegation doctrine. Justice Gorsuch characterizes the intelligible principle doctrine as “another way to describe the traditional rule that Congress may leave the executive the responsibility to find facts and fill up details.” Id. at 17. According to the dissent, three kinds of statutory delegations “are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to ‘fill up the details’; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power.” Sohoni, supra. To the dissent, the nondelegation doctrine is a vital constitutional protection because it aids in the preservation of individual liberties, promotes legislative deliberation, provides stability, predictability, and fair notice to individuals, and increases political accountability. Gundy, –S. Ct. at 14(Gorsuch, J., dissenting).

Responding to the plurality’s concerns about the nondelegation doctrine’s potential to destabilize the entire modern executive branch, Justice Gorsuch argued that enforcing the doctrine does not “spell doom for what some call the ‘administrative state.’” Id. at 22. He frames the doctrine as merely a “procedural protection” and, thus, noted that it “does not prohibit any particular policy outcome, [nor does it] dictate any conclusion about the proper size and scope of government. Id. This construction of the doctrine hardly leaves Congress without tools to achieve its legislative objectives: according to Justice Gorsuch, Congress permissibly “may … authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers.” Id.

Justice Kavanaugh did not participate in the decision.

Takeaways

  • SORNA applies to pre-Act offenders. This much is obvious: those convicted of a qualifying sex offense before SORNA’s enactment (pre-Act offenders) must comply with SORNA’s registration requirements as dictated by the Attorney General pursuant to 34 U.S.C. § 20913(d) and 75 Fed. Reg. 81850. Those pre-Act offenders who knowingly fail to register under the Act may be imprisoned for up to ten years. 18 U.S.C. § 2250(a).
  • Be on the lookout for potential challenges to legislative delegations in criminal statutes. Four justices explicitly indicated in Gundy that they are “willing to reconsider the nondelegation doctrine from the ground up,” and Justice Kavanaugh could provide a fifth vote to revitalize the doctrine in future cases. Sohoni, supra. The Gundy dissent is particularly concerned with statutory delegations that combine “lawmaking and law enforcement responsibilities … in the same hands” as well as those that give the executive branch the power to “make all the important policy decisions” without providing a meaningful standard “court[s] might later use to judge whether [the executive] exceeded the bounds of the authority,” like the ambiguous feasibility standard that the majority read into34 U.S.C. § 20913(d). Gundy, –S. Ct. at 23 (Gorsuch, J., dissenting). However, some commentators doubt the potency of this potential revival of the nondelegation doctrine, arguing that the “intelligible principle” doctrine is too “mushy” to be applied consistently by the Court, Rick Hills, Gundy, Constitutional Coalitions, and the Credible Commitment Problem of the Constitutional Doctrine, PrawfsBlawg (June 22, 2019), and that if the Court was unwilling to invalidate a “low-stakes” statute like that in Gundy, it is highly unlikely to invalidate future laws as the stakes increase. Adrian Vermeule, Never Jam Today, Notice & Comment (June 20, 2019).
  • Preserve, preserve, preserve. Given Justice Alito’s concurrence and the fact that Justice Kavanaugh did not participate in the Gundy decision, lawyers should continue to preserve the nondelegation argument regarding U.S.C. § 20913(d) in SORNA cases involving pre-Act offenders. The Gundy concurrence and dissent suggest that future challenges to this provision might be worthwhile, and we may even see rehearing requests pr more certiorari petitions because Justice Kavanaugh did not weigh in on the decision.

 

News You Can Use: Tenth Circuit holds supervised release Standard Condition 12 is improper delegation of authority to probation – United States v. Cabral

Standard Condition 12 requires people on supervised release to notify third parties about the “risks” they pose, at the discretion of their probation officer. See U.S.S.G. § 5D1.3(c)(12). Last year, in United States v Hull, 893 F.3d 1221 (10th Cir. 2018), the Tenth Circuit upheld this condition against vagueness and improper delegation challenges in a case where the judge specified that the relevant “risks” were those related to the defendant’s prior convictions for bank robbery and home invasion.

Recently, in United States v Cabral, —F.3d—, 2019 WL 2416950 (10th Cir. 2019), the Tenth Circuit vacated Standard Condition 12 in a case where the judge refused to limit its scope in any way. The Tenth Circuit punted on Mr. Cabral’s vagueness challenge, which it found prudentially unripe, but found that the unbounded condition was an improper delegation of authority to the probation officer.

The law here is well settled. Article III gives only judges the authority to impose punishment, and the judiciary may not delegate that authority to a non-judicial probation officer. Mr. Cabral argued on appeal that the risk-notification condition improperly delegates to probation the power to define the term “risk”—and thus “to determine what conduct the condition proscribes, and when it will be enforced”—without meaningful guidance from the district court. The circuit agreed: “By tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a “risk” to others in any facet of his life and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests.” 2019 WL 2416950, at *7.

Notably, the law on interpreting these open-ended supervised release conditions is usually pretty bad for us on appeal, because the Tenth Circuit interprets conditions “such that they comply with the law.” But as you’ll see in the opinion, it was impossible to apply this general rule here, because of what the district court said at sentencing. (For example, “I don’t care if I can’t say what the risk is now.”) As Judge McHugh wrote: “the district court here emphatically opened the door to boundless scenarios implicating various liberty interests,” from the right to familial association to the right to engage in a lawful occupation. 2019 WL 2416950, at *7-8.

Also noteworthy is Judge McHugh’s apparent sensitivity to the hardship indigent clients face in pursuing modification of supervised release, because there is no right to appointed counsel at those proceedings: “the prospect that Mr. Cabral would otherwise have to retain private counsel or proceed pro se to challenge the condition further supports our immediate review of his challenge, with the benefit (to him and to us) of counsel’s briefing.”

Takeaways

  • Seek clarification of Standard Condition 12. After Cabral, it’s clear that Standard Condition 12 requires some kind of limitation—it can’t be read to allow probation officers to require disclosure of literally any risk. So ask the sentencing court to be clear about what risks your client will be required to disclose, or else propose a limit of your own. It may, for instance, make sense to tie the relevant risks directly to your client’s specific criminal history, as Judge Brimmer did in Hull.
  • Watch out for improper delegations to the probation office. This opinion serves as a good reminder that probation officers are not judges, and their discretion should be limited to deciding “ministerial” questions—like what time to show up for an appointment—and not foundational ones—like what conduct is subject to a condition at all.
  • Keep an eye on standard conditions. Generally speaking, the Tenth Circuit is quite deferential when it comes to the standard conditions of supervised release set out in the Sentencing Guidelines. But as Cabral demonstrates, there are limits to that deference, and you shouldn’t assume that an otherwise overbroad, over-delegating condition is OK just because it’s a standard one.
  • Try to resolve questions about conditions of supervised release at sentencing. It may be tempting to put off resolving questions about the scope of your client’s conditions of supervised release until, well, he is actually on supervised release. But as Cabral reminds us, that strategy may put your client in a tough spot: After all, there’s no right to counsel to pursue modifications of supervised release. So if your client is facing a problematic condition of supervised release, see if you can take care of it at sentencing.