Courthouse Steps Oral Argument: Gundy v. United States

Criminal Law & Procedure, Federal Separation of Powers, Administrative Law, and Regulatory Transparency Project Teleforum

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Since 1789, the Supreme Court has struck down only two laws on “nondelegation” grounds, both in 1935. Gundy v. United States will potentially be a third such ruling, depending on whether the Deputy Solicitor General can convince the justices to save the delegation of authority in the Sexual Offence Notification Act (SORNA). The particular provision of SORNA at issue, which directs the Attorney General to decide whether SORNA’s registration requirements apply to sexual offenders convicted before the Act’s passage, may allow the Court to issue a narrow or broad ruling, but any opinion applying the nondelegation doctrine is likely to be a landmark ruling. The case directly affects three of the Federalist Society’s practice groups, and the case indirectly affects almost every other area of federal law.

The nondelegation doctrine operates to prevent Congress from delegating the lawmaking power the people vested in it to another branch or any other entity, but what is the core lawmaking power that Congress cannot delegate? How broadly can Congress phrase its legislation, and how much can it delegate to the regulatory agencies to fill in?  The courts’ role in enforcing the constitutional delegation line is even more hotly debated.  No justice has disagreed that the nondelegation rule is essential to maintaining the constitutional Separation of Powers, but some have expressed concern in prior decades about a judicially manageable standard for the courts to apply. In recent years, the Court’s lax enforcement of its “intelligible principle” standard from 1928 has been criticized by Justice Thomas, then Judge Gorsuch and many other commentators. The Gundy case presents the Court with a range of options, including from amici who have asked the Court to provide teeth to its intelligible principle standard or to adopt a textually-based standard that would more fully restore the delegation doctrine.  How far will the majority go to revive the nondelegation rule, and will concurring justices urge additional movement in the same direction?  Or will the doctrine, now on life support, be further diminished?

Todd Gaziano is the counsel of record for Pacific Legal Foundation’s brief in Gundy supporting reversal of the decision below, and joins us to discuss the oral arguments.

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Administrative Law & Regulation Practice Group, Criminal Law & Procedure Practice Group, and Federalism & Separation of Powers Practice Group was recorded on Tuesday, October 2, 2018, during a live teleforum conference call held exclusively for Federalist Society members.      

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon, we'll be discussing today's Supreme Court oral argument of the case Gundy v. United States. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are happy to have with us Todd Gaziano who is the Director for the Center for Separation of Powers at the Pacific Legal Foundation. Todd was fortunate enough to attend the oral arguments this morning and will be providing us with his insights. After hearing from our speaker, we will then go to audience Q&A. Thank you for speaking with us. Todd, the floor is yours.

 

Todd Gaziano:   Thank you very much, Micah. As most listeners know, including just by reading the blurb for today's call, it's been 85 years since the Supreme Court has struck down any federal law on nondelegation grounds. In fact, it's only done so twice, both in 1935, but I will explain, not based entirely on the oral argument, why most of us think that this will be the third such occasion, and any movement in that direction is likely to lead to a landmark decision. For those who've already downloaded the transcript, which I think is available, or were in the courthouse today, you know that the Justices were pretty active in their questioning, and they were relatively informed on the issues presented in the briefs, and I think, even in some of the amicus briefs, many of which have been filed.

 

      But, as I'll explain a little later in the call, right before your questions are opened up, I think it's still extremely hard to predict where the Court might go. There's a range of actions that I'll try to outline, from just striking down the statute on a very narrow ground to doing a little bit more, putting a little bit of teeth in the current standard for nondelegation cases, which is the intelligible principle standard. And I hope, at least from my perspective, and I do express an opinion that I hope the nondelegation doctrine is reinvigorated, that at least a couple of Justices write a concurring opinion that might go further than a majority if a majority strikes down the statute. And I think almost any of those decisions would be landmark. It would also be landmark if the Solicitor General's view that was ably argued by the Principle Deputy Solicitor General, Jeff Wall, was upheld which would uphold the statute because I think that would almost effectively kill the nondelegation doctrine.

 

      But let me digress, for at least a few of you who aren't as steeped in the nondelegation doctrine as others, to sort of sketch out some of the framework of analysis in most delegation doctrine cases and the statute at issue, which is the Sexual Offender Notification Act and Mr. Gundy's claims. Then I will return to describe some of the exchanges by the Justices and why it was such an interesting oral argument. As far as the nondelegation doctrine is concerned, the Supreme Court has made clear, and rightly so, that it's rooted in the constitutional separation of powers. Many scholars will focus on the first few words of the Vesting Clause of Article I, and that's certainly very important, but I don't think that's the only textual or structural part of the Constitution that provides the principle for the nondelegation doctrine.

 

      But let's begin, as textualists should, with that first Vesting Clause. Article I, Section 1, begins that "all legislative power herein granted," so all the legislative power that exists that's granted in the Constitution, quote, "shall be vested in a Congress of the United States." It then goes on to describe the composition of Congress, but I submit that there is a lot more text that relates to the more important questions, and that is whether the legislative power that is vested in Congress can be redelegated or subdelegated, as some people prefer to call. The Supreme Court at least, as opposed to a few academics, has always said that the Congress cannot delegate the core of its lawmaking power. Gary Lawson and others have explained why that is so; among the other reasons, there is no redelegation power. There's a Necessary and Proper Clause, as we know, that extends somewhat the subject upon which the Congress can legislate, but there is no delegation power.

 

      But I think there is even more impact in the fact that the Framers hotly debated how to cabin the legislative power. They didn't just vest it in a Congress. As many of you know on the call, they considered the lawmaking power to be the most dangerous power to our liberty, and so what they did is they created two Houses of Congress, and they had the method of appointment, originally election of the senators by state legislators, later by the population, but they're still elected by different size constituencies for different terms, and then they give the President a veto power. And, as you know, the President is elected nationwide for a four-year term. All of this -- and there's an additional requirement the legislation is presented near simultaneously with presidential approval, so you can't have one House propose something 30 years ago and the other House pick it up later, and a President, 20 years later, signing it. There needs to be near-simultaneous agreement by these three actors, or a supermajority in the House and the Senate, to enact legislation.

 

      Well, the Framers discussed that this would temper the influence of factions, and what it also requires is that all legislative action requires a high degree of consensus, and high degree of compromise. So it is inconceivable, even if normal agency principles didn't apply, it is inconceivable that that Framers would have taken such care to cabin and limit the lawmaking power, and yet, allow a Congress to delegate that power to one individual, let's say one regulatory official who alone, and his successors or her successors over the next 60 years, could fill in the gaps.

 

      So that is the sort of textual basis for the nondelegation principle. And as I said, while some people in academia would be happy with it being fully delegable, the Court has always insisted, Justices of the Court have always insisted that the core lawmaking power can't be delegated. There is a dispute, at least in the courts, on two principles. First of all, what is the core lawmaking power that Congress must retain, and what can it allow the agencies, regulatory agencies, what kind of gaps can it allow to fill? When I was in law school, we referred to interstitial gaps which, clearly, the executive in the courts in interpreting a statute must fill. But the original definition of interstitial was the gaps between grains of sand, so they were small gaps.

 

      There remains an interesting and important debate about the scope of the delegation that can be given to agencies. And then the equally important principle is what the Court's role is in enforcing it. So in almost every case where the Court in the last 85 years has upheld the delegation, it has reaffirmed the importance of the principle in one case. Relatively recently, the Court said that it's essential to the functioning of the separation of powers that this principle of legislative nondelegation be maintained, even though individual Justices have expressed some reservation about whether and how they are empowered to enforce it.

 

      Again, as most of you know, the current standard is whether Congress has provided an intelligible principle for the regulatory official or other to regulate or limit their discretion. That comes from a 1928 case, the J. W. Hampton case, and the real problem is a lot of amici in this case has seen is that the standard itself might not be a textually based one that reflect what the true lawmaking power is, but it's been especially laxly applied.

 

      And that brings us, really, to the current Gundy case. In the Sexual Offender Notification Act, Congress established what was discussed today as a comprehensive scheme for federal sexual offender notification. There was some debate about what Congress meant by comprehensive, and I'll return to that in a minute, but there's a provision that is at issue in the Gundy case. Congress couldn’t decide, affirmatively couldn't decide, whether it should apply to pre-Act offenses. In other words, whether those who committed pre-Act offenses had to register under the federal scheme, no matter how comprehensive it was. And so in the House version of the legislation, they would have applied it to pre-Act offenders. The Senate would not agree, and so the final provision simply delegates to the Attorney General to make that determination in regulations.

 

      In the specific provision at issue, there is no guidance whatsoever as to how the Attorney General was to make that decision. One of the factors that make this case especially interesting is that 11 courts of appeals uniformly upheld that standardless delegation. I think they had gotten the message from the Supreme Court that almost anything goes, and they didn't want to rock the boat. One of those courts of appeals made that decision over then-Judge Gorsuch's dissent from denial of rehearing. So on March 5th of last year, or of this year, I should say, when the Supreme Court granted cert in this case, there was no conflict in the circuit. There was 11 uniform circuits. Now, Justice Kennedy was on the Court, so we don't know what an 8 member Court may say, but generally, the Supreme Court with Gorsuch doesn't grant cert to affirm the 11 unanimous circuits before the D.C. Circuit could rule otherwise.

 

      But the debate today, and now I'll return now to the hot bench, today was fairly active, but it's a little bit hard to read where the Court may go. Justice Kagan seemed to be the most uniformly in defense of the Solicitor General's argument that some stray words in the statute could provide the context that she thought enabled the delegation to the Attorney General to be read in a particular way. And the way the Solicitor General argued it was that Congress wanted this comprehensive registration scheme to be applied to the maximum extent possible. That was at least one of the formulations, and the only issue for the Attorney General was one of feasibility.

 

      The petitioner's counsel, who is the public defender in this case for Mr. Gundy, argued that, really twofold.  One is there's nothing in the text of the statute that refers to feasibility, and that's it's a rather strained interpretation of the statute to say that Congress really wanted it applied to the maximum extent possible. The Chief Justice Roberts and Gorsuch later pointed out that comprehensiveness could refer to the nature of the regulatory scheme, that the subject matter of the regulatory scheme, not who it applied to. And who it applied to is a substantive matter that even Justice Sotomayor appeared to recognize, which was different, and perhaps distinguishable. On this particular point, Chief Justice Roberts later offered the hypothetical of Congress deciding what bridge standards there would be but leaving it to the regulator as to -- I think a more apt analogy might have been who has to follow them, but I think in his analogy, it was which bridges should it apply to.

 

      Another sort of supporter, the closest next supporter to the administration, seemed to be Justice Breyer, at least he expressed a concern. He mentioned 300,000 regulations might be at issue. And clearly, in some context, a number of other regulations are at issue, and he was searching for a distinction between the Securities Act of 1934, and some other acts that he mentioned, and the provision at issue. One distinction that was offered was that this was a criminal provision, or it was a provision subject to criminal liability, and it was the Attorney General, the prosecutor, who was essentially defining the scope of the law.

 

      Interestingly, Justice Kagan pushed back on that distinction. And those of us, including myself and my colleagues at the Pacific Legal Foundation that filed an amicus brief, hope that the nondelegation doctrine is at least somewhat more reinvigorated and, eventually, completely reinvigorated to apply to civil offenses, may have taken some heart in Kagan pointing out that many civil offenses are punishable by criminal penalties. So that it wasn't so obvious a distinction that the Attorney General was delegated the authority in SORNA, as opposed to these other regulatory schemes. Even so, I think Sotomayor and Breyer were struggling toward the end of the oral argument to see if the criminal context in some way couldn't be used to strike down the particular delegation in the SORNA statute and create some sort of limiting principle that would allow the Court to uphold almost every other extremely broad and vague delegation to regulatory agencies.

 

      So that returns me to, I think, the most thoughtful writer on the Court, who spoke today at least, was Gorsuch. Justice Thomas, as many of you know, has expressed interest, since the American Trucking case in the last century, on reinvigorating the delegation doctrine in finding a constitutionally text-based standard. Gorsuch has done the same, and he pointed out, as he did last term, that the delegation doctrine is related to the Court's void for vagueness doctrine. And this is an issue that my colleagues and I also wrote about in our amicus brief before the Court. The Court has applied a different standard when the Court is too broad and too vague in giving power to a constable or other official in defining the law. And we think the same should apply when the Congress attempts to give regulatory power, whether that regulatory power allows bankrupting fines or criminal penalties.

 

      So Justice Gorsuch developed that theme a little bit in today's argument and referred to his decision in Dimaya last term. Of interest, last term he had four other Justices who joined him, and they were the traditional liberal Justices. With regard to the point of levity in the oral argument, was at one point, he made a very favorable argument for striking down the statute and the petitioner's lawyer just responded, "You're right. I cede my time." But she did not give up her time and continued her argument until the end.

 

      I think with that, I’m near the end of my summary of both the case and the background principles in the oral argument. But let me return, while callers are thinking of their questions, to why I think there's a range of decisions and why almost all of them would be landmark decisions. It would certainly be a landmark decision if this statute is upheld if the Solicitor General's argument finds five Justices to say that they could read in the comprehensiveness with the definition of offender this principle that the Attorney General is really supposed to apply to the maximum extent possible.

 

      But I think that the other possibilities are also somewhat revolutionary, given the doctrine's shape after the past 85 years. So if there's a majority -- even if a majority finds somewhat of a limiting principle, that will encourage others to apply it in, perhaps, ways that is a little bit broader than some Justices intend. It's also, as I say, I think, encouraging litigation, or will encourage future litigation, to test the bounds of any opinion that strikes down SORNA if two Justices provide a roadmap. That would most likely be Justice Thomas and Justice Gorsuch. If it's reargued, I think another Justice, particularly that Kavanaugh's confirmed, might well join in providing a textually-based roadmap.

 

      I should add that several of my allied organizations filed great amicus briefs; very interesting arguments in the Institute for Justice's brief on how the states apply this nondelegation doctrine, but there are also very helpful briefs by CEI with Reason and Cascade, the New Civil Liberties Alliance, Cato, and Cause of Action, the Constitutional Center for Jurisprudence, and Becket Fund, among others. Those are the groups that wanted to provide at least some significant teeth to the intelligible principle standard and generally go beyond that to find a standard that would more fully reinvigorate the nondelegation doctrine. There were many other amicus in support of Gundy from the ACLU to others that were looking for a narrower way of striking down the delegation, one that would allow Congress to continue to write very, very broad civil statutes. But for some of the same purposes I think Kagan pointed out in defending even the SORNA statute, I think it'll be difficult to strike it down in the purely criminal context and not apply it in at least some civil context.

 

      So with that, I'm happy to answer any questions.

 

Micah Wallen:  Thank you, Todd. Let's go to audience questions. I'm not seeing any questions lined up right away. Todd, could you tell us more about the broad range of amicus briefs filed and whether most of them got it right in terms of what the Court thought was important, or did they go a common misdirection and -- just kind of develop that more?

 

Todd Gaziano:  Yeah, thanks for asking. Given that this doctrine has not been, I think, taken seriously or fully developed in the last 85 years, I think the amicus briefs were more helpful that normal because they weren't the typical "me too" briefs. I mentioned that the Institute for Justice's brief analyzed the way that states and state courts deal with the nondelegation doctrine, and they classified the states in some different, sort of interesting categories. And I think that ought to be very helpful to the federal court to show that this a workable -- that there are workable ways for the courts to enforce a delegation doctrine, so I think that's very instructive.

 

      I mentioned that in our brief at the Pacific Legal Foundation, we explained to the Court that they really had been applying another standard that was workable, but they could easily apply to the nondelegation doctrine. But we also pointed out another particularly frustrating example of a federal agency wanting to have it both ways. There's a doctrine that first arose in a nonregulatory context called "no law to apply," and in that case, the agency tries to defeat a challenge to its decision by saying, "Congress gave us complete discretion, and there's simply no law for the courts to apply." We pointed out that if there's simply no law that a court could apply, then there is no intelligible principle, and the Court should rule the delegation to be unconstitutional, at least with regard to the regulatory context. As I said, that no law to apply doctrine emerged in some traditional areas of executive prerogatives but now has been increasingly applied to regulatory actions.

 

      Some of the other briefs, of course, do talk about why the intelligible principle is not a textually based one. And further, I think there is agreement among several, at least that I mentioned on the call, that the original intelligible principle test might have made sense in the J. W. Hampton case, but the Court has abdicated any responsibility to enforce it.

 

Micah Wallen:  Thank you, Todd. Let's go to our first audience question.

 

Caller 1:  Yes, [inaudible 24:44]. In the ideological divide involving the administrative state and how this argument seems to fit nicely into that divide, and yet, the Trump administration took the position that, in this context, would actually support the administrative state and how that might tie into things like Chevron coming up potentially this term.

 

Todd Gaziano:  Well, I think that you're right in pointing out two things. First of all, the -- even political appointees like the Principle Deputy Solicitor General, Jeff Wall, and his boss, the Solicitor General, Noel Francisco, will not reflexively attack the administrative state. Their duty, in some respects a debatable one, in this case, is first and foremost to defend federal law. So there's this sort of caricature of the Trump administration that was never appropriate; that it is 100 percent deregulatory or taking every action to attack the administrative state. Personally, I wish it would do more, and we'll encourage them to so.

 

      But your other point was that this relates to agency deference and deference doctrines like Chevron, and that's very much true. I think that in our brief at the Pacific Legal Foundation, and I'm sure some others, we pointed out how the Court's other deference doctrine makes the nondelegation problem far worse. So it's bad enough if Congress gives huge swaths of federal power to agencies with nothing more than statement that they're to exercise that huge swath of power in the public interest, for example, to take the FCC statute, or in some of the other areas that have been pointed out. But it's worse if the courts don't then try to fairly interpret what that delegation means and give deference to the agency's interpretation, particularly an interpretation of a statute that's so broad, what is unreasonable under Chevron?

 

      A third compounding error was the Court's City of Arlington decision a few years ago in which the agencies even get to decide whether they have jurisdiction over a particular matter. So when you add all three of those doctrines together, the Court is abdicating even more, and I think the main argument we should be making, or the main action that's called for is for the courts to step up. Yes, we'd like the President to do more, too, and so let's try to see if we can get the President to do so, but it's the Court's function to say what the law is, and that includes the constitutional law about delegation, and that includes the statutory interpretation question without leaning heavily in favor of the government every time the government sues an individual.

 

Caller 1:  If I could just follow up, I think your answer is really helpful, but the point is if the administration is concerned about the arise of the administrative state and wishes to sort of cut back on it, that it wouldn't see that these three elements as integrated and have an integrated approach in arguing before the Supreme Court. I'm surprised that the Solicitor General would take the Obama administration's position on this issue in light of the Trump administration's stance involving the administrative state if, in fact, the principles are related. They're all integrated. They can't be separated, it seems to me, intellectually.

 

Todd Gaziano:  Well, I agree with you, but I also think that the Solicitor General should not ask for Chevron deference, but it's continued to do so. I think the Court is at least stepping up a little there, and I think they'll step up in this Gundy case. That's my prediction. I’m not sure how far the majority will go, but last term, for example, the Court examined their five cases where there was a request for Chevron deference, and there's some exceptions, as you all know, to the application of such deference, and in all five cases, the Court found an exception. One of the newest and most important exceptions is one that then-Judge, or current Judge, I should say, Kavanaugh, has championed, and that is the major questions doctrine, and the Supreme Court seems to be applying that exception. So the courts are stepping up. I still hold hope. I do think that Solicitor General Noel Francisco is arguing some positions, including one tomorrow, that's atypical of a liberal administration, but they certainly could go further.

 

Micah Wallen:  Thank you, Todd. Let's go to our next question.

 

Caller 2:  Hi. I was just wondering if there's amicus briefs that were filed in favor of the government's position, and who was filing those briefs?

 

Todd Gaziano:  I'm sorry. The amicus briefs on the government's side?

 

Caller 2:  Yes.

 

Todd Gaziano:  I believe there were some, and I would say the best brief on the government's side is the government's brief itself, but I'm looking right now through the docket, and I may be wrong. I don't see any that were filed in support of the government, which is another indication that most commentators think that the Court probably will strike this down. By the way, I invite a caller who could look at the docket better than I can while I'm on the phone to correct me if there were amicus briefs filed in support of the government, and perhaps another caller can mention what they were.

 

      But the main disagreement, I think, is between some academics, the ACLU, and others who want the Court to strike down the particular -- I'm sorry, the main, at least, disagreement between the amici is those who want a very narrow ruling, one that will only strike down either SORNA or something very close but confers discretion to the Attorney General in a matter that results in a criminal penalty, like in those of us who think that the principle needs to apply broader.

 

      And in defense of my view, I'll add that there's nothing in the Vesting Clause in Article I, there's nothing in the nondelegation principle or anything about lawmaking that distinguishes the principle that Congress can't delegate its lawmaking power between criminal and civil acts, and I'll remind you of the point that Justice Kagan made in the oral argument today. Many, many of the civil provisions carry a criminal penalty, so it seemed strange to her, and I tend to agree, that you could strike down the broad delegation to the Attorney General, but you could limit that if the same delegation were given to the Secretary of HHS, and the Attorney General enforced it.

 

      The other type of distinction in the Court has done historically is that there have been at least minor standards that Congress has applied, the kind of standards that Justice Breyer seemed concerned of today in the public interest. There were various hypotheticals. The Chief Justice at one point asked if the same statute could be passed, but the Attorney General would be given a broad waiver, and the answer from the advocate, at least initially, was it depended on whether they gave principle for the Attorney General's waiver.

 

      But some of us in the courtroom and discussing afterward was wondering whether the Chief Justice was referring to something like DACA. In fact, Congress has given the Attorney General -- or has set down a rule that, regarding immigration, that has given the Attorney General certain waiver authority. Maybe that had nothing to do with the Chief Justice's question, but the Supreme Court Justices, if they weren't thinking about it today, certainly will by the time they write their opinion, be careful about how broadly these principles apply in other classes of cases.

 

Micah Wallen:  Thank you, Todd. Not seeing any other questions currently lined up. Todd, did you have any closing remarks?

 

Todd Gaziano:  Well, I will mention one other exchange and maybe someone will come up with a question during that. Ginsburg, at one point, Justice Ginsburg, at one point, asked the Deputy Solicitor General Wall, "How was a person who committed an offense 30 years prior to the federal SORNA law's passage supposed to know that they had to apply?" And Solicitor General Wall's first response was, "Well, he would have gotten notice of the rulemaking," which -- as if anyone who's committed an offense 30 years ago needs to read the federal register every single day. Well, that clearly wasn't satisfying to Justice Ginsburg. His second response was probably better, but he said that, "Well, there might be some individual offenders who might have a as-applied due process challenge as to them," but I do think that that points to some of the problems of these broad delegations.

 

      These broad delegations that result in the 300,000 regulations that Justice Breyer spoke of present almost the opposite problem, I think, that Justice Breyer was hinting at. Justice Breyer, I think, may have wanted to save almost all the 300,000 regulations. But others of us are concerned first about notice, and second about democratic principles of the consent of the governed. If the rule that binds us, if the rule of conduct that binds third parties, really isn't set down by Congress, if there's just a huge grant of power and the rule of conduct is set down by the regulatory agency, that presents a nondelegation problem. And that's what Justice Thomas wrote about, a few terms about. That was sort of the standard, I think, he was hinting at in an opinion about three or four years ago, and that's close to what Justice Gorsuch has written about as well.

 

      So there are due process issues, but I think we can separate even the due process notice issues from the structural issues. Regardless of whether someone has actual notice of a particular rule, if the particular rule of conduct was only vaguely hinted at the in authorizing statute, if the rule of conduct is you shall not discharge this or that type of affluent at this or that level of this or that -- but all Congress has done is given EPA and the Army Corps authority over navigable waters. Then it seems like the real rule of conduct is being laid down by the regulators, and we don't have consent of the governed. We've got a -- for those of us who think as I do that consent of the governed means that the Congress really needs to lay down the rules of conduct, and leaving agencies some interstitial power to fill in some minor gaps, we have a very, very long way to go.

 

Micah Wallen:  Thank you, Todd. And we did have another question come in while you were speaking, so without further ado, we'll move to that.

 

Annette Jefferson:  Yes, hi. It's Annette Jefferson. I just wanted to know if there's any applicability of bill of attainders, like being punished without trial or, ex post facto laws in terms of nondelegation, what those constitutional provisions or constitutional --

 

Todd Gaziano:  Excuse me, I can't hear most of what you're -- can you -- if you're on speaker, could you take it off speaker for a minute?

 

Annette Jefferson:  Okay. Are you able to hear me better now?

 

Todd Gaziano:  Or maybe Micah could try and -- yeah, I can hear you a little bit better now.

 

Annette Jefferson:  Okay. Sorry about that. I was wondering is there any applicability of the constitutional -- the word is escaping me -- provisions or terms of the bill of attainder or ex post facto laws when it comes to -- when it refers to nondelegation in the context of a particular act, whether that delegation is permissible?

 

Todd Gaziano:  Sure. I still only heard part of it, but let me try to answer, and then you can tell me whether I captured it. There was a discussion that application of the registration requirement -- sometimes different advocates or justices refer to is as retroactively applied. That issue -- the pure issue of retroactivity was not part of the question presented, and that would apply whether it was the Attorney General making the call, the on/off switch supposedly to apply to past pre-Act offenders or not.

 

      But it was a little bit discussed that maybe you ought to factor into the deliberation -- I see them as somewhat distinct. And the way this issue has come up in the lower courts is that the requirement is one of current conduct. So the current conduct that's required is to register and reregister whenever you move. And the argument, at least, and I'm not sure I buy it entirely, is that registration is not a criminal penalty, and therefore, the ex post facto laws, the ex post facto prohibition doesn't apply. It's just a civil notification statute that provides notice to third parties. And there are some situations where Congress could pass some sort of notification law that says current manufacturers of XYZ must provide notice, even if what triggered that notice was something they've done in the past.

 

      But I do think it's a close case, but it's a separate issue. It's a separate issue than the one the Supreme Court took up today, and the one they took up today was whether the Attorney General could make this call, rather than Congress -- whether Congress had provided enough discretion, and would the other litigation that would raise the issue of whether this current registration requirement is punitive and is so tied to a past criminal act that it effects a ex post facto violation.

 

Annette Jefferson:  Great. Thank you.

 

Micah Wallen:  All right, there are no further questions lined up. So Todd, did you have anything further you'd like to add before I wrap up?

 

Todd Gaziano:  Just one last thing. There are three Practice Groups of this society that are directly affected, and I'm very glad the other practice groups have been involved in posting papers and other calls.  The Criminal Law Practice Group obviously implicated because this is a criminal law provision. The Administrative Law section, or Practice Group, is also implicated because it has -- nondelegation has a huge impact on them. I am primarily a member of the Federalism & Separation of Powers Practice Group, and I've joked with the Administrative Law Practice Group that if our view of the separation of powers were to prevail, or at least those of many of our -- then there would be much less administrative law for them to have to worry about.

 

      But it is interesting that this case is central to three Practice Groups, but it actually affects every practice group because the scope of Congress' power to delegate law will affect every, the substantive law of every practice group. So this is a critically important decision. I think if the Court is deadlocked, I would like to see it reargued when a ninth Justice is added, but either way, I think it's the kind of case we're going to be reading and studying for many decades.

 

Micah Wallen:  Well, on behalf of The Federalist Society, I want to thank Todd for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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