Skip to main content

Congress' Delegation of Authority to Determine SORNA's Applicability to Pre-Act Sex Offenders Did Not Violate the Nondelegation Doctrine

In United States v. Cooper, No. 13-2324, the Third Circuit considered whether Congress' decision to delegate authority to determine the applicability of federal registration requirements to sex offenders convicted before the Sex Offender Registration and Notification Act's ("SORNA") enactment was constitutional.  SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update his or her registration. 18 U.S.C. § 2250(a). The statute defines sex offenders to include persons convicted of sex offenses prior to SORNA’s enactment. 42 U.S.C. § 16911(1). However, Congress delegated to the Attorney General the authority to determine whether SORNA’s registration requirements would apply to pre-SORNA sex offenders. The Attorney General has since determined that SORNA’s registration requirements do in fact apply to offenders convicted of sex offenses prior to SORNA’s enactment. 28 C.F.R. § 72.3.

The Court determined that Congress’ delegation of this responsibility to the Attorney General was constitutional under the "nondelegation doctrine," which is rooted in the principle of separation of powers. The Court declined to apply a heightened standard here simply because Congress delegated the authority to create criminal liability. Instead, the Third Circuit analyzed Congress’ delegation of authority under the more common "intelligible principle" test. Under the intelligible principle test, a delegation of authority is constitutional so long as Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." See Mistretta v. United States, 488 U.S. 361, 372-73 (1989). The Court ultimately concluded that since Congress laid out the general policy underlying the SORNA, the public agency to apply the policy, and the boundaries of the delegated authority, its delegation to the Attorney General did not violate the nondelegation doctrine.


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017),, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively d…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…