Gundy v. United States: Breathing New (and Unexpected) Life Into the Nondelegation Doctrine

Brandon K. Wharton

In Gundy v. United States, the Supreme Court of the United States considered whether title 34, section 20913(d) of the United States Code, which allows the Attorney General of the United States to “specify the applicability” of the Sex Offender Registration and Notification Act’s (“SORNA”) registration requirements to pre-Act offenders, violates the nondelegation doctrine. The nondelegation doctrine is a principle of constitutional and administrative law that “bars Congress from transferring its legislative power to another branch of Government.” The Court held that section 20913(d) does not violate the nondelegation doctrine because it “makes clear that the Attorney General’s discretion extends only to considering and addressing feasibility issues.” Because the Court’s statutory interpretation of section 20913(d) is consistent with Reynolds v. United States, which also interpreted the statutory meaning of SORNA, and because section 20913(d) provides an intelligible principle to guide the Attorney General’s discretion, the outcome in Gundy was correct. The Court, however, underemphasized the many practical consequences that would have followed if the dissent’s view had prevailed.