Updated:
June 2, 2018

Whether it violates the separation of powers for Congress to delegate to the Attorney General, the nation’s chief prosecutor, the unfettered authority both to decide whether a criminal law should apply and to prosecute violators of that law.

The Framers of our Constitution—all too aware of the threats posed by concentrated power—chose to divide authority among three independent branches of government.  That design, the Supreme Court has emphasized, “serves not only to make Government accountable but also to secure individual liberty.” Under that system, Congress is granted authority to make the laws and the Executive Branch, which includes the Attorney General, is directed to faithfully execute those laws. Under the “nondelegation doctrine,” it violates the Constitution’s requirement of separation of powers if Congress delegates its lawmaking authority to the executive branch without sufficient guidance.

That is what the Sex Offender Registration and Notification Act (SORNA) does.  SORNA created a nationwide registry for convicted sex offenders. Congress applied it to all who committed sex offenses after the law’s enactment. But Congress could not decide whether it should apply retroactively to people, like Herman Gundy, who were convicted before the law was passed. Instead, SORNA authorized the Attorney General, who prosecutes violations of SORNA, to determine whether and how the statute applies to prior sex offenders. And it did so without any guidance as to how the Attorney General should decide to apply the law retroactively. 

In an amicus brief filed with the Supreme Court, the ACLU argues that heightened separation of powers concerns are raised in the criminal context, and that SORNA is unconstitutional because it fails the heightened requirements for delegations of criminal lawmaking authority to the Attorney General. We argue that the separation of powers demands more guidance from Congress in the criminal context. 

Not all delegations from Congress are created equal. The Court has recognized that the complexity and scope of a national government requires that Congress have leeway to delegate broadly in the context of civil administrative law to agencies that have the expertise, experience, and bandwidth to translate general policies into detailed rules—for example, to permit the EPA to decide what sorts of chemicals are toxic or the FDA to regulate prescription drugs.

But criminal law is different – and constitutionally distinctive. This is reflected in the many guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments that restrict governmental power either exclusively or with greater force in criminal cases.  It is reflected in a range of basic legal doctrines, from the rule of lenity to the void-for-vagueness principle. And it is manifest in the constitutional prohibitions on ex post facto laws and bills of attainder. The Framers’ concern with the threats to liberty associated with criminal punishment was a key motivation in their adoption of divided government.

The Court should therefore make clear, we argue, that, like the guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments, the separation of powers demands more in the context of criminal law—especially where the same official is delegated the power to determine whether criminal law should apply and to prosecute violators of that law. Under those principles, SORNA is unconstitutional.

Stay Informed