## Facts

- Herman Gundy pleaded guilty in 2005 to sexually assaulting a child in Maryland.
- In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), creating a uniform national sex-offender registration framework.
- SORNA’s initial-registration provision, 34 U.S.C. § 20913, sets a general timing rule for registration tied to release from custody for the registrable offense.
- For offenders convicted before SORNA’s enactment, § 20913(d) gives the Attorney General “the authority to specify the applicability” of SORNA’s registration requirements to those pre-Act offenders and to issue rules governing their registration.
- After serving his Maryland sentence, Gundy was transferred into federal custody for a supervised-release violation stemming from an earlier federal conviction.
- During that transfer, Gundy was permitted to travel unescorted by bus from Pennsylvania to New York.
- Gundy went to New York and lived there without registering as a sex offender.
- The federal prosecution relied on a Department of Justice rule applying SORNA’s registration requirements to pre-Act offenders.
- In 2013, Gundy was indicted under 18 U.S.C. § 2250(a) for traveling in interstate commerce and then failing to register as required by SORNA.
- Gundy moved to dismiss, arguing (among other points) that § 20913(d) unconstitutionally delegated legislative power to the Attorney General by letting the Executive decide SORNA’s reach as to pre-Act offenders.

## Issues

1. Whether 34 U.S.C. § 20913(d), which authorizes the Attorney General to specify SORNA’s applicability to pre-Act offenders and to issue related registration rules, violates the nondelegation doctrine.
2. If § 20913(d) is constitutional, whether Gundy’s conviction under 18 U.S.C. § 2250(a) for failing to register may stand.

## Decision

- The Supreme Court affirmed the Second Circuit and left Gundy’s conviction in place.
- Justice Kagan announced the judgment of the Court in a plurality opinion joined by Justices Ginsburg, Breyer, and Sotomayor.
- The plurality read § 20913(d) in light of SORNA’s text, purpose, and the Court’s prior interpretation in Reynolds v. United States, concluding that Congress made the basic policy choice to cover pre-Act offenders and left the Attorney General discretion mainly about timing and practicality—requiring application to pre-Act offenders “as soon as feasible.”
- Applying the Court’s existing “intelligible principle” approach, the plurality concluded that § 20913(d) provided adequate direction and did not amount to an unconstitutional transfer of legislative power.
- Justice Alito concurred in the judgment only, supplying the fifth vote to affirm; he did not join the plurality’s reasoning but stated he would be willing to reconsider the Court’s nondelegation precedents in an appropriate case, while concluding those precedents required affirmance here.
- Justice Gorsuch dissented, joined by Chief Justice Roberts and Justice Thomas, arguing that § 20913(d) let the Attorney General decide the scope of federal criminal law for a broad class of people and therefore crossed the constitutional line.
- Justice Kavanaugh did not participate.

## Legal Principles

- Congress may delegate authority to the Executive if it supplies an “intelligible principle” that meaningfully directs the exercise of delegated discretion.
- A delegation is evaluated in context: statutory purpose, structure, and related provisions can limit what might look like broad language when read in isolation.
- A statute can be construed to leave the Executive discretion over implementation details (such as timing and transitional administration) while reserving major policy decisions to Congress.
- Under existing doctrine applied by the plurality, delegations affecting criminal enforcement are not categorically invalid; they are assessed under the same intelligible-principle framework.
- When the Court issues a plurality decision without a single majority rationale, the judgment controls and the case’s precedential effect is generally assessed by looking to the narrowest grounds supporting the result (Marks v. United States), here reflected in Justice Alito’s concurrence in the judgment.

## Conclusion

In Gundy v. United States, the Court affirmed a failure-to-register conviction and held that SORNA’s delegation in 34 U.S.C. § 20913(d) did not violate the nondelegation doctrine. Reading the statute as requiring the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible, the plurality found adequate legislative direction under the intelligible-principle test, and Justice Alito concurred in the judgment based on existing precedent while expressing openness to revisiting the doctrine in a future case.


Gundy v. United States, 139 S.Ct. 2116 (2019)