[3] Precedent is that it is only constitutional for Congress to delegate legislative power to the executive branch if it provides an "intelligible principle" as guidance.
[4] The outcome of the case could have greatly influenced the broad delegations of power Congress has made to the federal executive branch,[5] but it did not.
Gundy did not register as a sex offender in either Maryland (where he committed his crime) or New York (his state of residence), and was thus arrested for violating SORNA (18 U.S.C. § 2250).
It rejected Gundy's argument that the delegation of authority to the Attorney General within SORNA violated the nondelegation clause, based on circuit precedent in the case United States v.
The plurality opinion was written by Elena Kagan, who was joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
Justice Kagan found that because SORNA guided the Attorney General to eventually apply the registration requirements to all offenders, it did not violate the nondelegation doctrine.
His opinion referenced and disagreed with Justice Alito's vote, believing that this case would be an appropriate vehicle to revisit nondelegation.
He believed that the statute "hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code."
Simultaneously, another case (Paul v. United States) resting on largely the same facts was appealed to the Supreme Court.
Justice Kavanaugh wrote a statement respecting the denial of certiorari in Paul, indicating that he too might wish to revisit nondelegation in a future case.
Dissenting from the denial, Justice Thomas wrote: The question whether the Occupational Health and Safety Administration’s broad authority is consistent with our constitutional structure is undeniably important.
See Paul v. United States, 589 U.S. ___, ___ (2019) (statement of Kavanaugh, J., respecting denial of certiorari) (slip op., at 2); Gundy, 588 U. S., at 149 (Alito, J., concurring in judgment); id., at 164 (Gorsuch, J., joined by Roberts, C. J., and Thomas, J., dissenting).