Standing for sex offenders: Oral argument review in Reynolds v. United States

We knew going into oral argument this week that the statute at issue in Reynolds v. United States was hazy.  After all, what does it mean for Congress to authorize the Attorney General to “specify the applicability of” the registration requirements for pre-enforcement sex offenders under the federal Sex Offender Registration and Notification Act (SORNA)?  There seems to be no precedent for this kind of delegation, and any interpretation raises significant problems.  But even as the argument on Monday highlighted these ambiguities and problems, it also revealed the factors that the Court will balance to navigate them, and suggested the likely result.

      On the one side, the Court seemed acutely aware that Reynolds’s preferred interpretation  – that as a pre-enforcement offender, he was subject to SORNA’s registration requirements only after the Attorney General issued regulations – raised serious potential constitutional problems.  In particular, the Court recognized that Reynolds’s interpretation means that SORNA delegates to the Attorney General the complete and awesome authority to determine whether registration applies at all to pre-enforcement offenders.  Counsel for the government put it this way: According to Reynolds, the Attorney General has complete control over the light switch.  Thus by Reynolds’s reckoning, SORNA veers toward a violation of the non-delegation doctrine and separation-of-powers principles.  Chief Justice Roberts and Justice Ginsburg both raised this issue, but Justice Scalia put perhaps the finest point on it:

My problem is that it’s very strange.  I find it very strange to leave it up to the Attorney General whether something will be a crime or not.  It will be a crime if the Attorney General says so and it won’t be a crime if he doesn’t.  I mean, especially leave it up to the Attorney General, for pete’s sake; he’s the prosecutor.  You know, it will be a crime if the prosecutor thinks it is and it won’t be a crime if the prosecutor thinks it isn’t.  I don’t know of any parallel, and I think it’s sailing close to the edge of constitutionality.

And there’s another, practical problem: Under Reynolds’s interpretation, SORNA would create a registration vacuum for pre-enforcement offenders, at least until the Attorney General “specified the applicability of” its registration requirements.  That’s because, according to Reynolds, state registration doesn’t satisfy SORNA registration, and SORNA itself does not require pre-enforcement offenders to register.  Thus SORNA wouldn’t touch pre-enforcement offenders until the Attorney General acted.  But some Justices suggested that this kind of vacuum would frustrate congressional purpose – to unify the national registration of sex offenders and to re-locate and register those many offenders that were lost under previous state and national registration schemes.  Counsel for the government argued that this approach unnecessarily and wrongly complicates registration; instead, state registration (which was mandatory for Reynolds himself, and which he skipped) also satisfies SORNA’s requirements for pre-enforcement offender registration.  There was some sympathy for this more simple approach on the bench, underscoring this practical problem with Reynolds’s position.

But on the other hand, the government’s position – that SORNA itself requires pre-enforcement offenders to register, irrespective of any regulation from the Attorney General – has its own problems.  For one, it would have been easy for Congress to do this with plain language in the statute; but it didn’t.  In fact, as Justice Sotomayor pointed out, Congress rejected an alternative version of the bill that would have plainly required pre-enforcement offenders to register.  (Justice Sotomayor was careful to remind us that not all of her colleagues would be persuaded by this kind of legislative history.)

Moreover, the government’s understanding of the Attorney General’s authority – the “safety valve,” as counsel called it – may have gone too far.  Justices Scalia and Kagan both seemed taken aback by the government’s claim that the Attorney General’s authority to “specify” the requirements would allow the Attorney General to entirely exempt all pre-enactment offenders from SORNA’s registration requirements.  This seems to swing from Reynolds’s position too far the other way.

Finally, and perhaps most importantly, the government’s interpretation leads to confusion, even incoherence, between SORNA’s requirement for initial registration and its requirement for keeping registration current for pre-enforcement offenders.  In a lengthy exchange between Justice Breyer and counsel for the government, sometimes joined by Justices Scalia and Kagan, the Justices suggested that the government’s position could leave some pre-enforcement offenders without any idea what the law required and no way to comply.  Counsel for the government, assisted at one point by Chief Justice Roberts, argued that SORNA’s structure suggested otherwise and that its criminal provision was tailored around these problems.

If the argument is any prediction, the Court will likely balance worries about an unconstitutional construction that undermines legislative purpose (if it adopts Reynolds’s interpretation) against concerns that SORNA’s registration requirements are incoherent for some pre-enforcement offenders and that SORNA gives too much power to the Attorney General to nullify registration (if it adopts the government’s understanding).  For a majority on this Court, this balance probably favors the government: the government’s position both avoids a constitutionally questionable interpretation of the statute and would read SORNA to sweep in all pre-enforcement offenders – a read that seems more natural in light of SORNA’s overall structure, and a read that is consistent with a plausible understanding of congressional purposes.

But even this wouldn’t necessarily close the case.  Reynolds raised an alternative argument that he still would have standing to challenge the Attorney General’s interim rule, even if SORNA itself required him to register.  This is because the Attorney General issued the rule without notice and comment, which would have allowed Reynolds to persuade the Attorney General why he should be exempted from the registration requirements under the rule.  Because the interim rule did not exempt him, he has standing to challenge it.  This seems a too-clever turn to have any real traction, but it serves as a useful final reminder that this is one dodgy statute.