Gundy v. United States
A divided Court left in place a federal registration requirement for a man convicted of a sex offense before Congress created a national sex-offender registry, with a four-justice plurality and one more justice supplying a fifth vote to affirm his conviction for failing to register.
The decision did not produce a majority rationale: the fifth justice agreed only with the outcome, not the reasoning, while three dissenting justices argued the law let the Attorney General write his own rules for a half-million people, calling it an unconstitutional handoff of Congress's lawmaking power.
How it got here: Gundy was convicted of failing to register as a sex offender; after his appeal was rejected, the Supreme Court agreed to decide whether SORNA's grant of authority to the Attorney General violates the separation of powers.
The Case in Depth
What happened
Herman Gundy pleaded guilty to a sex offense in 2005, before Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006. SORNA let the Attorney General decide whether and how the law's registration requirements applied to the roughly 500,000 people, like Gundy, who had already been convicted before the statute existed. After his release, Gundy was arrested again for failing to register under rules the Attorney General had set for pre-Act offenders, facing an additional prison term.
The question before the Court
Did Congress give the Attorney General too much power to decide which sex offenders convicted before a 2006 federal registration law had to comply with it?
Why it matters
Roughly half a million people convicted of sex offenses before 2006 remain subject to registration rules set largely at the Attorney General's discretion rather than by a fixed congressional standard. The case also kept alive a debate—flagged by three dissenting justices and one concurring justice—over whether Congress can hand agencies sweeping rulemaking power without violating the separation of powers, a question with implications far beyond sex-offender registries.
What changes now
Gundy's conviction stands, and the Attorney General retains broad discretion over registration rules for the remaining pre-Act sex offender population. Because no opinion commanded a majority rationale, the constitutional status of broad delegations like this one remains unsettled; the concurring justice signaled he would be open to revisiting the Court's lenient nondelegation approach in a future case with a full nine-member Court.
What this does not decide
Because the fifth vote came from a concurrence that rejected the plurality's reasoning without offering its own rationale, the decision does not establish a majority view on how much power Congress may hand to agencies. It leaves open whether the Court's longstanding lenient approach to delegation challenges will survive future review with a full Court.
Concurrences and dissents
Concurrence — Justice Alito
“it would be freakish to single out the provision at issue here for special treatment.”Alito explains why he votes to affirm despite reservations about the Court's lenient delegation standard.
Justice Alito agreed with the outcome but not the plurality's reasoning. He noted that the Court has for 84 years uniformly rejected nondelegation challenges under a very loose standard, and while he would support revisiting that approach if a majority were willing, he would not single out this statute for stricter treatment while the Court's precedents remain otherwise unchanged.
Dissent — Justice Gorsuch
“It purports to endow the nation's chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.”Gorsuch's central objection to the scope of authority SORNA gives the Attorney General.
Justice Gorsuch argued that SORNA's grant of authority to the Attorney General over pre-Act offenders is an unconstitutional delegation of Congress's lawmaking power, since the statute sets no standard at all for how the Attorney General must treat this group. He traced the history and purpose of the separation of powers, criticized the modern 'intelligible principle' test as a distortion of older doctrine, and would have struck the provision down rather than reinterpret the statute to avoid the constitutional problem.
How the Court got there
The legal reasoning, step by step
- A four-justice plurality read SORNA's text, purpose clause, and definition of 'sex offender' together to conclude that Congress had directed the Attorney General to apply the registration requirements to pre-Act offenders to the maximum extent feasible, rather than giving him unlimited discretion.
- Under that reading, the plurality treated the Attorney General's role as filling in details and implementing an already-set congressional policy, which satisfies the traditional test requiring Congress to supply an 'intelligible principle' guiding the agency.
- A fifth justice agreed only with the result, stating that he could not say the statute lacked an adequate standard under the loose approach the Court has applied to delegation challenges since the 1930s, without endorsing the plurality's reasoning.
- Three dissenting justices countered that the statute's only provision on pre-Act offenders gives the Attorney General total discretion to register all, some, or none of them, and to change his mind at will, with no feasibility standard anywhere in the text.
- The dissent applied a stricter separation-of-powers framework distinguishing between filling in details, executive fact-finding, and matters of overlapping executive authority, and concluded SORNA's grant to the Attorney General fit none of those categories because it let him make Congress's core policy choices himself.
Doctrinal impact
Cases affected by this decision
Reaffirms Schechter Poultry
Dissent treats this 1935 ruling striking down a broad delegation to the President as still-valid law defining the limits of Congress's power to delegate.
Reaffirms Panama Refining Co. v. Ryan
Dissent relies on this 1935 decision striking down a vague delegation as continuing precedent on what makes a delegation unconstitutional.