The Fragmented Gundy Court Suggests the Nondelegation Doctrine Might Have a Future

Yesterday a fragmented Supreme Court announced its judgment in Gundy v. United States, which upheld a provision of the Sex Offender Registration and Notification Act (SORNA) that allows the attorney general to decide whether and how sex offenders convicted prior to passage of the Act need to register under the comprehensive national system of registration established by the statute. That delegation of authority to the attorney general was challenged under the nondelegation doctrine, under which Congress, the branch vested by the Constitution with legislative power under the Constitution, may not transfer such power to another branch …

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