Argument preview: Standing to challenge sex offender rule

The federal Sex Offender Registration and Notification Act, or SORNA, has been percolating in the lower courts since its enactment in 2006.  Convicted sex offenders seem to have attacked its registration requirements every which way, leaving a trail of lower court opinions that address everything from congressional authority to enact SORNA to the Tenth Amendment and related federalism concerns.

But the Supreme Court has not yet entered this thicket.  Its two rulings on SORNA, both in 2010, involved relatively minor aspects of the Act, rather than the more significant constitutional issues.  This case, the first set for oral argument this Term, is no different.

In Reynolds v. United States, the Court will consider a surprisingly narrow issue:  standing.  In particular, the case asks whether a sex offender who was convicted before SORNA’s enactment has standing to challenge the Attorney General’s rule that applies SORNA’s registration requirement to pre-enactment offenders.

Because it is not at all obvious why this is even an issue, some background on SORNA, and on Billy Joe Reynolds, might be helpful.

SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies.  It provides that a sex offender’s failure to register, or to keep registration current, itself constitutes a federal crime.  Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA’s registration requirements apply to sex offenders who were convicted before SORNA’s enactment:

Initial registration of sex offenders unable to comply with subsection (b)

“The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).€

The Attorney General exercised this authority and issued just such a rule on February 28, 2007.  That rule indicated that SORNA’s registration requirements applied to all pre-enactment offenders.  But the rule did not go through ordinary notice-and-comment rulemaking procedures; instead, the Attorney General invoked the “good cause€ exception to the Administrative Procedure Act and made the rule effective immediately.

The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment.  Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law.

In November 2007, Reynolds was charged and indicted with violating SORNA’s registration requirements after he moved to Pennsylvania without updating his registration.  He moved to dismiss the indictment, arguing – among other things – that the Attorney General’s rule violated the APA.  The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss.  The Third Circuit affirmed, ruling that SORNA’s registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General.  The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it.  (It is not clear if this case involves formal Article III standing, or “standing€ in its more colloquial sense.  But it doesn’t matter: either way, Reynolds has to show that he had some stake in the Attorney General’s rule.)  This appeal followed.

Reynolds argues that the plain language of Section 16913(d) delegates to the Attorney General the authority to determine both whether SORNA’s requirements apply to pre-enactment offenders and how they apply.  In particular, he says that the plain language of the first clause, delegating the authority “to specify the applicability€ of SORNA’s registration requirements, means that the Attorney General gets to say whether they apply at all.  He claims that the language of the second clause, on contradistinction to the language of the first, only underscores this: the authorization to the Attorney General “to prescribe rules€ means that the Attorney General gets to say how they apply.  Reynolds argues that some courts’ contrary reading is too cramped, would frustrate congressional purpose, and cut against the Court’s 2010 ruling in Carr v. United States (holding that SORNA’s criminal provision does not apply to sex offenders whose interstate travel occurred before enactment, because that provision states elements in the present, rather than past, tense).  Finally, Reynolds argues that his reading is supported by SORNA’s structure and legislative history.

The government argues that the plain language of SORNA’s registration requirements means that all sex offenders, including pre-enactment offenders, must register.  It says that SORNA’s delegation to the Attorney General to “specify the applicability€ of the registration requirements further suggests that the SORNA’s requirements apply by their own force.  Finally, the government argues that SORNA’s structure, context, and purpose, and the weight of lower court authority, support its reading.

The government argued in its brief opposing review that the issue here is “narrow, transitory, and of diminishing importance.€  It’s hard to see how that’s wrong.  After all, the precise standing question applies to a small and shrinking class of sex offenders – those convicted of failing to register between February 28, 2007, the date of the Attorney General’s rule, and August 1, 2008, the latest date that any court of appeals has said that the Attorney General issued a valid final rule that required pre-enforcement offenders to register.

Moreover, the ruling, either way, won’t affect the ability of pre-enforcement offenders to challenge registration requirements under SORNA.  Pre-enforcement and post-enforcement offenders will be able to lodge claims against SORNA’s registration requirements one way or another, regardless of the outcome here.  This case only affects pre-enforcement offenders’ standing to challenge the February 28, 2007, rule.

Finally, this case is not framed to present the more interesting constitutional issues around SORNA.  The Court will almost surely limit its ruling to the precise standing issue here.

Given all this, we might wonder why the Court even agreed to hear the case.  It’s likely that the Court just needed to resolve a circuit split – a simple explanation for a surprisingly narrow case.