Sex-Offender Registrations Unconstitutional, Supreme Court Hears
A child rapist’s conviction for failing to register as a sex offender should be set aside because federal rules requiring him to register were created improperly, the offender’s lawyer told skeptical members of the Supreme Court on Oct. 2.
This is the second case of the court’s new term in which the issue is whether Congress delegated too much power to the executive branch, in violation of the Constitution. On Oct. 1, the court heard oral arguments in a case concerning regulations seeking to protect an endangered frog.
At issue is the non-delegation doctrine, a constitutional and administrative law principle that has rarely been invoked lately, and flows out of Article I of the U.S. Constitution. Because “All legislative Powers herein granted shall be vested in a Congress of the United States,” the doctrine holds that Congress isn’t allowed to delegate its lawmaking powers to executive agencies or private entities.
While the high court relied on the doctrine in striking down elements of the New Deal in Schechter Poultry Corp. v. U.S. (1935), the otherwise straightforward legal principle was undermined in the Progressive Era. In 1928, in J.W. Hampton Jr. & Co. v. U.S. the court read language into Article I that doesn’t exist: Lawmaking powers may be delegated so long as Congress lays down an “intelligible principle” on which the recipient of the delegated powers may act.
Although the court acknowledged in Mistretta v. U.S. (1989) that Congress generally isn’t allowed to delegate its legislative powers to another branch of government, it favorably cited its 1928 decision, which held Congress may seek assistance from the other branches.
While a decision to strike down the federal sex-offender registration regulations in question would be truly revolutionary in its ramifications, and call into question the legitimacy of the modern administrative state — replete as it is with unelected bureaucrats exercising vast powers the framers of the U.S. Constitution never intended them to possess—the justices seemed largely unmoved by the arguments presented.
Conviction and Punishment
At oral arguments on Oct. 2, no one disputed that Herman Avery Gundy, 44, who convicted in 2005 of raping an 11-year-old girl, failed in 2012 to register as a sex offender as required by the now 12-year-old Sex Offender Registration and Notification Act (SORNA). However, litigants clashed over the constitutionality of SORNA. Gundy now lives and works in Hagerstown, Maryland, where he is currently registered as a sex offender.
https://www.theepochtimes.com/sex-offender-registrations-unconstitutional-supreme-court-hears_2676902.html
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Chief Justice John Roberts then interrupted Baumgartel:
“Well, the government says that they do have a standard and it’s … [to] apply the prohibition or the requirements in the law to the maximum extent feasible.”
Baumgartel replied, saying, “that language does not appear anywhere in the statutory text, nor can it be derived from the sources that the government cites.”
She added, “This is really the fundamental weighing of liberty versus security interests, the sorts of decisions that the people’s legislative body is supposed to make and not supposed to delegate to the chief prosecutor.”