United States v. Keith Cooper ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2324
_____________
UNITED STATES OF AMERICA
v.
KEITH ALLEN COOPER,
Appellant
_____________
On Appeal from the United States District Court
for the District of Delaware
District Court No. 1-12-cr-00067-001
District Judge: The Honorable Richard G. Andrews
Argued January 8, 2014
Before: SMITH, SHWARTZ, and SCIRICA,
Circuit Judges
(Filed: April 10, 2014)
Ilana H. Eisenstein [ARGUED]
Edward J. McAndrew
Office of the United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
Counsel for Appellee
Edson A. Bostic
Daniel I. Siegel [ARGUED]
Office of Federal Public Defender
800 King Street
Suite 200
Wilmington, DE 19801
Counsel for Appellant
Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Amicus Appellant
________________
OPINION
________________
SMITH, Circuit Judge.
Keith Allen Cooper (“Cooper”) is a sex offender
who was convicted of rape in Oklahoma and paroled
2
prior to the enactment of the Sex Offender Registration
and Notification Act (“SORNA” or the “Act”), Pub. L.
No. 109-248, 120 Stat. 587, 590–611 (2006) (codified
primarily at 18 U.S.C. § 2250 & 42 U.S.C. § 16901 et
seq.). After Congress enacted SORNA, Cooper was
convicted of failing to comply with the sex offender
registration requirements set forth in SORNA. In
bringing this appeal, Cooper invokes the nondelegation
doctrine, challenging the constitutionality of the
provision of SORNA in which Congress delegated to the
Attorney General the authority to determine the
applicability of the Act’s registration requirements to pre-
SORNA sex offenders.
We conclude that SORNA does not violate the
nondelegation doctrine. Accordingly, we will affirm
Cooper’s conviction.
I
In 1999, Cooper was convicted in Oklahoma state
court on three counts of rape in the first degree. Cooper
was paroled in January 2006. As required by pre-SORNA
law, he registered as a sex offender in Oklahoma on or
around January 20, 2006.
In July 2006, Congress enacted SORNA, which
requires sex offenders to comply with specific
registration requirements and to update registration
information in the event of a change of name, address,
3
employment, or student status. Pursuant to the
promulgation of an administrative rule on February 28,
2007, and subsequent issuance of a final rule, the
Attorney General made SORNA’s registration
requirements applicable to individuals (such as Cooper)
who were convicted of sex offenses prior to the
enactment of SORNA.
In or around early 2011, Cooper moved from
Oklahoma to Delaware. Although SORNA required
Cooper to notify authorities of this change in residence,
Cooper did not provide either Oklahoma or Delaware
authorities with his updated residence information, nor
did he separately register as a sex offender in Delaware
after moving there.
In 2012, Cooper was arrested and charged with
one count of failure to register as a sex offender, in
violation of 18 U.S.C. § 2250(a), in the United States
District Court for the District of Delaware. On November
2, 2012, Cooper moved to dismiss the indictment on the
basis that, inter alia, SORNA’s delegation of authority to
the Attorney General to determine the applicability of the
Act’s registration requirements to pre-SORNA sex
offenders violates the nondelegation doctrine and thus is
unconstitutional. The District Court denied Cooper’s
motion to dismiss.
Cooper pled guilty but reserved his right to appeal
from the denial of the motion to dismiss. The District
4
Court sentenced him to eighteen months’ imprisonment,
ten years of supervised release, and a special assessment
of $100.00. Cooper then brought this timely appeal.
II
Congress enacted SORNA as Title I of the Adam
Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006).
As set forth in the statute’s declaration of purpose,
Congress enacted SORNA “to protect the public from
sex offenders and offenders against children” by
“establish[ing] a comprehensive national system for the
registration of [sex] offenders.” 42 U.S.C. § 16901.
SORNA “reflects Congress’ awareness that pre-Act
registration law consisted of a patchwork of federal and
50 individual state registration systems.” Reynolds v.
United States, 132 S. Ct. 975, 978 (2012). Thus, “[t]he
SORNA reforms are generally designed to strengthen and
increase the effectiveness of sex offender registration and
notification for the protection of the public, and to
eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could
attempt to evade registration requirements or the
consequences of registration violations.” The National
Guidelines for Sex Offender Registration and
Notification, 72 Fed. Reg. 30210-01, 30210 (May 30,
2007).
SORNA specifies that all sex offenders “shall
5
register, and keep the registration current,” in each state
where the offender lives, works, or attends school. 42
U.S.C. § 16913(a). When an offender changes his name,
residence, employment, or student status, within three
business days the offender is required to appear in person
in at least one jurisdiction where the offender lives,
works, or is a student to notify that jurisdiction of the
change in registration information. 42 U.S.C. § 16913(c).
SORNA requires that the jurisdiction receiving this
information immediately provide it to all other
jurisdictions in which the offender is required to register
in order to achieve a comprehensive national registry. Id.
Relevant to this appeal, 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 registration. 18 U.S.C.
§ 2250(a). 1 Once a sex offender is subject to SORNA’s
1
18 U.S.C. § 2250(a) provides:
6
registration requirements, that offender can be convicted
under § 2250 if he thereafter engages in interstate or
foreign travel and then fails to register. See Carr v.
United States, 560 U.S. 438, 447 (2010).
The statute defines “sex offender” to include
individuals who were convicted of sex offenses prior to
the enactment of SORNA. 42 U.S.C. § 16911(1)
(defining “sex offender” as “an individual who was
convicted of a sex offense”); see also Reynolds, 132 S.
Ct. at 978 (noting that SORNA “defines the term ‘sex
offender’ as including these pre-Act offenders”).
However, SORNA does not set forth the registration
Whoever (1) is required to register under the
Sex Offender Registration and Notification
Act; (2)(A) is a sex offender as defined for
the purposes of the Sex Offender
Registration and Notification Act by reason
of a conviction under Federal law (including
the Uniform Code of Military Justice), the
law of the District of Columbia, Indian tribal
law, or the law of any territory or possession
of the United States; or (B) travels in
interstate or foreign commerce, or enters or
leaves, or resides in, Indian country; and (3)
knowingly fails to register or update a
registration as required by the Sex Offender
Registration and Notification Act; shall be
fined under this title or imprisoned not more
than 10 years, or both.
7
procedures for pre-SORNA sex offenders. Instead, in 42
U.S.C. § 16913(d), Congress delegated to the United
States Attorney General the authority to determine
whether SORNA’s registration requirements would apply
retroactively to pre-SORNA sex offenders.
Section 16913(d) provides:
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 . . . .
42 U.S.C. § 16913(d).
On February 28, 2007, pursuant to the authority
delegated to it by § 16913(d), the Attorney General
issued an immediately effective rule establishing that
“[t]he requirements [of SORNA] apply to all sex
offenders, including sex offenders convicted of the
offense for which registration is required prior to the
enactment of the Act.” Applicability of the Sex Offender
Registration and Notification Act, 72 Fed. Reg. 8894-01,
8897 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3). The
Attorney General subsequently issued proposed
guidelines for the interpretation and implementation of
SORNA on May 30, 2007, reiterating that SORNA’s
8
registration requirements apply retroactively to pre-
SORNA offenders. See The National Guidelines for Sex
Offender Registration and Notification, 72 Fed. Reg.
30210-01, 30212 (May 30, 2007). Additional rules,
repeating that SORNA’s registration requirements apply
to pre-SORNA sex offenders, were promulgated on July
2, 2008. See The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38030-01,
38035–36 (July 2, 2008). The Attorney General
subsequently issued a Final Rule, which became effective
as of January 28, 2011. See Applicability of the Sex
Offender Registration and Notification Act, 75 Fed. Reg.
81849-01 (Dec. 29, 2010).2
III
The District Court had original jurisdiction
pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over this challenge to
the constitutionality of SORNA. United States v.
2
Cooper does not contest that by the time he moved
to Delaware in or around early 2011, the Attorney
General had validly promulgated rules requiring pre-
SORNA sex offenders to register and keep their
registration current. Cooper challenges only the
constitutionality of the section of SORNA that delegated
the authority to promulgate such rules to the Attorney
General.
9
Pendleton, 636 F.3d 78, 82 (3d Cir. 2011).
IV
Cooper’s sole argument on appeal is that his
conviction should be vacated because Congress violated
the nondelegation doctrine when it delegated its authority
to the Attorney General to determine the applicability of
SORNA’s registration requirements to pre-SORNA sex
offenders. See 42 U.S.C. § 16913(d).
The nondelegation doctrine “is rooted in the
principle of separation of powers that underlies our
tripartite system of Government.” Mistretta v. United
States, 488 U.S. 361, 371 (1989). Article I, Section 1 of
the Constitution provides: “All legislative powers herein
granted shall be vested in a Congress of the United
States.” U.S. Const. art. I, § 1. Thus, to safeguard the
separation of powers enshrined in the Constitution, “‘the
integrity and maintenance of the system of government
ordained by the Constitution’ mandate that Congress
generally cannot delegate its legislative power to another
Branch.” Mistretta, 488 U.S. at 371–72 (quoting Field v.
Clark, 143 U.S. 649, 692 (1892)).
Yet the history of the nondelegation doctrine
reveals a wide gulf between the considerations rooted in
the text of the Constitution and the jurisprudence that has
since developed in the courts. In one of the first cases to
give significant attention to the issue, Wayman v.
10
Southard, 23 U.S. 1 (1825), the Supreme Court
considered a constitutional challenge to Congress’
delegation to the judicial branch of authority to establish
procedural rules for service of process and execution of
judgments. Upholding the constitutionality of this
delegation, Chief Justice Marshall distinguished between
the nondelegable “powers which are strictly and
exclusively legislative” and “those of less interest, in
which a general provision may be made, and power given
to those who are to act under such general provisions to
fill up the details.” Id. at 42–43. Marshall’s opinion noted
also that the line between the delegable and nondelegable
powers of Congress “has not been exactly drawn,” id. at
43, concluding that the delegation in that suit did not
implicate impermissible delegation of Congress’
legislative powers.
A similar analysis is found in Field v. Clark, 143
U.S. 649 (1892). That case involved a challenge to the
constitutionality of an act authorizing the President to
suspend tariff provisions for duty-free importation of
certain goods in the event the President determined that
such action was necessary to ensure reciprocal trade with
foreign nations. The Supreme Court again recognized the
importance of the prohibition against delegation of
legislative power as essential to constitutional separation
of powers. Id. at 692. However, the Court reasoned that
the delegation raised no constitutional violation because
the President was acting only as “the mere agent of the
11
law-making department to ascertain and declare the event
upon which [Congress’] expressed will was to take
effect.” Id. at 693.
United States v. Grimaud, 220 U.S. 506 (1911),
involved a nondelegation doctrine challenge to an act
authorizing the executive branch to make regulations for
the use and occupancy of forest reservations. Defendants
were charged with violating regulations promulgated by
the Secretary of Agriculture prohibiting the grazing of
sheep on reservation land without permit. Upholding the
delegation, the Court held:
From the beginning of the government,
various acts have been passed conferring
upon executive officers power to make
rules and regulations,—not for the
government of their departments, but for
administering the laws which did govern.
None of these statutes could confer
legislative power. But when Congress had
legislated and indicated its will, it could
give to those who were to act under such
general provisions ‘power to fill up the
details’ by the establishment of
administrative rules and regulations, the
violation of which could be punished by
fine or imprisonment fixed by Congress, or
by penalties fixed by Congress, or
measured by the injury done.
12
Id. at 517. Thus, where a violation of an offense has been
made punishable by Congress, the Court concluded, there
is no constitutional violation in the coordinate branch
establishing regulations governing implementation and
execution of the law, so long as the coordinate branch
“confin[es itself] within the field covered by the
statute . . . in order to administer the law and carry the
statute into effect.” Id. at 518.
From these early cases, the modern nondelegation
doctrine took shape in J.W. Hampton, Jr., & Co. v.
United States, 276 U.S. 394 (1928). In Hampton, the
Supreme Court considered a challenge to the
constitutionality of a tariff act in which Congress
delegated to the executive branch the authority to modify
tariff levels when the President determined that
prevailing rates were unequal between the United States
and foreign countries. Upholding the constitutionality of
the act, the Court emphasized the value of delegation of
authority for the efficient operation of government.
Nonetheless, the Court held that such delegated authority
must be constrained by “defined limits, to secure the
exact effect intended by [Congress’] acts of legislation,”
and “the extent and character of that assistance must be
fixed according to common sense and the inherent
necessities of the governmental co-ordination.” Id. at
406. In order to guide this analysis, Hampton established
what became known as the “intelligible principle” test:
“If Congress shall lay down by legislative act an
13
intelligible principle to which the person or body
authorized to fix such rates is directed to conform, such
legislative action is not a forbidden delegation of
legislative power.” Id. at 409. The Court determined that
the delegation in that case raised no constitutional
problem, because the act merely authorized the President
to carry out the purpose established by Congress and
provided the Executive with an intelligible principle to
guide this execution.
On only two occasions has the Court invalidated
legislation based on the nondelegation doctrine, and both
occurred in 1935.3 First, in Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) (Hughes, C.J.), the Court
invalidated Section 9(c) of the National Industrial
Recovery Act of 1933, which authorized the President to
prohibit the shipment of oil produced in excess of state-
imposed quotas. The Court held that this portion of the
Act was an impermissible delegation because it lacked
any standard whatsoever to limit the President’s
discretion:
Section 9(c) does not state whether or in
what circumstances or under what
conditions the President is to prohibit the
3
Thus, it has been said that the nondelegation
doctrine “has had one good year, and 211 bad ones (and
counting).” Cass Sunstein, Nondelegation Canons, 67 U.
Chi. L. Rev. 315, 322 (2000).
14
transportation of the amount of petroleum or
petroleum products produced in excess of
the state’s permission. It establishes no
criterion to govern the President’s course. It
does not require any finding by the President
as a condition of his action. The Congress in
section 9(c) thus declares no policy as to the
transportation of the excess production. So
far as this section is concerned, it gives to
the President an unlimited authority to
determine the policy and to lay down the
prohibition, or not to lay it down, as he may
see fit. And disobedience to his order is
made a crime punishable by fine and
imprisonment.
Id. at 415. The Court concluded that this provision of the
Act violated the constitutional maxim that “Congress
manifestly is not permitted to abdicate or to transfer to
others the essential legislative functions with which it is
thus vested,” id. at 421, because it provided no guidance
whatsoever to limit the discretion of the President in
executing the power delegated to him. Id. at 430.
Similarly, in A.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935) (Hughes, C.J.), the
Court struck down Section 3 of the National Industrial
Recovery Act, which authorized the President to approve
“codes of fair competition” for trades or industries, as an
unconstitutional delegation of authority. The Court
15
emphasized that the statute completely failed to define
“fair competition” and thus impermissibly transferred to
the executive branch the power to create law: “Congress
cannot delegate legislative power to the President to
exercise an unfettered discretion to make whatever laws
he thinks may be needed or advisable for the
rehabilitation and expansion of trade or industry.” Id. at
537–38.
Panama Refining and Schechter Poultry establish
the “outer limits of [the] nondelegation precedents.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474
(2001). These decisions make clear that Congress cannot
“provide[] literally no guidance for the exercise of
discretion” and cannot “confer[] authority to regulate the
entire economy on the basis of no more precise a
standard than stimulating the economy by assuring ‘fair
competition.’” Id.
But however bold these decisions may have been,
they failed to alter the trajectory of the nondelegation
doctrine. Shortly after the Hughes Court gave way to the
Stone Court,4 the case of Yakus v. United States, 321
U.S. 414 (1944), upheld a delegation to the Price
Administrator (an executive official appointed by the
President) to fix commodity prices at a “generally fair
4
Chief Justice Hughes retired, and former Associate
Justice Harlan Fiske Stone succeeded him as Chief
Justice, in 1941.
16
and equitable” level to effectuate the objectives of the
Emergency Price Control Act. The Court noted that
Congress had enacted the Emergency Price Control Act
“in pursuance of a defined policy and required that the
prices fixed by the Administrator should further that
policy and conform to standards prescribed by the Act.”
Id. at 423. Distinguishing Schechter Poultry, which
prescribed no method for attaining the objective sought
by Congress, the majority concluded that “Congress has
stated the legislative objective, has prescribed the method
of achieving that objective . . . and has laid down
standards to guide the administrative determination” in
exercising the delegated authority. Id. at 423. Further, the
Court announced that invalidation of the delegation
would only be proper if the act had a total “absence of
standards for the guidance of the Administrator’s action,
so that it would be impossible in a proper proceeding to
ascertain whether the will of Congress has been obeyed .
. . .” Id. at 426.
Writing in dissent, Justice Owen Roberts argued
that the statute in Yakus was an unconstitutional
delegation of congressional power. In Justice Roberts’s
view, “the Act sets no limits upon the discretion or
judgment of the Administrator. His commission is to take
any action with respect to prices which he believes will
preserve what he deems a sound economy . . . .” Yakus,
321 U.S. at 451 (Roberts, J., dissenting). Justice Roberts
plaintively argued that, in effect, the majority’s decision
17
“le[ft] no doubt that [Schechter Poultry] is now
overruled.” Id. at 452 (Roberts, J., dissenting). However,
the fate of Schechter Poultry that Justice Roberts
predicted did not come to pass. The Supreme Court’s
continued attention to Panama Refining and Schechter
Poultry signals that—while their continued existence is
hardly robust—they nonetheless have continuing
precedential force. See, e.g., Whitman, 531 U.S. at 474–
75; Mistretta, 488 U.S. at 373 n.7.
In a similar move away from Panama Refining and
Schechter Poultry, American Power & Light Co. v.
Securities & Exchange Comm’n, 329 U.S. 90 (1946),
addressed a nondelegation challenge to Section 11 of the
Public Utility Holding Company Act, which authorized
the Securities and Exchange Commission to require
companies to take steps the Commission deemed
necessary to prevent holding companies from “unduly or
unnecessarily complicat[ing] the [holding-company
system] structure” or “unfairly or inequitably
distribut[ing] voting power among security holders.” Id.
at 97. Rejecting the contention that these phrases had no
meaning (and thus provided no directives to guide the
delegation of authority), the Court suggested that the
larger context of the act itself could imbue these terms
with sufficient meaning to guide the Commission, i.e.
these terms “derive much meaningful content from the
purpose of the Act, its factual background and the
statutory context in which they appear.” Id. at 104.
18
Looking to the “express recital of evils” in the earliest
sections of the statute, the policy declarations set forth by
Congress, and standards and conditions established in
sections of the statute apart from Section 11, the Court
concluded “a veritable code of rules reveals itself for the
Commission to follow in giving effect to the standards of
§ 11(b)(2).” Id. at 105. Driven by a recognition that
“judicial approval accorded these ‘broad’ standards for
administrative action is a reflection of the necessities of
modern legislation dealing with complex economic and
social problems,” id., the Court determined that the
statute posed no nondelegation problem.
The Supreme Court has not invalidated a statute
for violating the nondelegation doctrine in the nearly 80
years since Panama Refining and Schechter Poultry. In
Mistretta v. United States, 488 U.S. 361 (1989), a
criminal defendant challenged the constitutionality of
Congress’ delegation of authority to the Sentencing
Commission to promulgate determinative-sentence
guidelines. The Court upheld this delegation on the basis
of the intelligible principle test. Id. at 372–74. Mistretta
reiterated that, in a modern society, delegations of
authority are necessary to accommodate the technical and
complex decisions that can accompany the
implementation of legislation. Id. at 372. Upholding the
delegation, the Court concluded that the grant of
authority to the Sentencing Commission contained
sufficient guidance and details in order to pass
19
constitutional muster. Id. at 374.
Under modern application of the nondelegation
doctrine, as long as Congress “lay[s] down by legislative
act an intelligible principle to which the person or body
authorized to exercise the delegated authority is directed
to conform, such legislative action is not a forbidden
delegation of legislative power.” Mistretta, 488 U.S. at
372 (quoting Hampton, 276 U.S. at 406) (brackets
omitted); see also Whitman, 531 U.S. at 472 (2001)
(noting that Congress may not abdicate legislative power,
but specifying that Congress may delegate
“decisionmaking authority” to a coordinate branch of
government as long as Congress lays down by legislative
act an intelligible principle to which the coordinate
branch is directed to conform). Under this test, a
delegation is “constitutionally sufficient if Congress
clearly delineates the general policy, the public agency
which is to apply it, and the boundaries of this delegated
authority.” Mistretta, 488 U.S. at 372–73 (quoting
American Power & Light Co., 329 U.S. at 105). Thus, the
Supreme Court has “‘almost never felt qualified to
second-guess Congress regarding the permissible degree
of policy judgment that can be left to those executing or
applying the law.’” Whitman, 531 U.S. at 474–75
(quoting Mistretta, 488 U.S. at 416 (Scalia, J.,
dissenting)).
20
V
A. Cooper Urges Application of a “Meaningfully
Constrains” Standard
Cooper argues that we should move the
nondelegation jurisprudence in a new direction. Relying
on Touby v. United States, 500 U.S. 160 (1991), and
United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011),
Cooper urges us to apply a heightened “meaningfully
constrains” standard to assess the delegation to the
Attorney General in SORNA, arguing that a more
rigorous standard must apply when Congress delegates
discretion to impose criminal liability.
Whatever benefits may inhere in a heightened
standard for cases in which Congress delegates authority
to create criminal liability, we are mindful that the
Supreme Court “has expressly refrained from deciding
whether Congress must provide stricter guidance than a
mere ‘intelligible principle’ when authorizing the
Executive ‘to promulgate regulations that contemplate
criminal sanctions.’” Amirnazmi, 645 F.3d at 575
(quoting Touby, 500 U.S. at 165–66). The “meaningfully
constrains” standard has been referenced in only a
handful of cases, none of which set forth factors or a
substantive analytical framework against which to assess
whether a specific delegation satisfies that standard. In
Amirnazmi, we did not resolve “the unsettled question of
whether something more demanding than an ‘intelligible
21
principle’ is necessitated within the context of delegating
authority to define criminal conduct.” Id. at 577. We
likewise decline to do so here. Until the Supreme Court
gives us clear guidance to the contrary, we assess the
delegation of authority to the Attorney General in 42
U.S.C. § 16913(d) under an intelligible principle
standard.
B. Analysis Under the Intelligible Principle Test
Applying the intelligible principle test, we
conclude that Congress did not violate the nondelegation
doctrine in delegating responsibility to the Attorney
General to determine the applicability of SORNA’s
registration requirements for pre-Act offenders in 42
U.S.C. § 16913(d). In enacting SORNA, Congress laid
out the general policy, the public agency to apply this
policy, and the boundaries of the delegated authority.
This is all that is required under the modern
nondelegation jurisprudence. Mistretta, 488 U.S. at 372–
73.
SORNA contains a general policy goal to guide the
Attorney General in applying the discretion delegated by
the Act. The first section of SORNA makes clear that the
Act’s aim is to establish a comprehensive national sex
offender registry in order to protect children and the
public at large from sex offenders. 42 U.S.C. § 16901.
The Attorney General’s discretion, established in
22
§ 16913(d), is governed by this general policy statement.5
Although we acknowledge that SORNA’s policy
statement is broad and does not contain directives
specifically aimed at the Attorney General, review of the
history of the nondelegation doctrine reveals that far less
precise policy statements have still passed muster. See,
e.g., American Power & Light Co., 329 U.S. at 105;
5
We do not agree with the argument made by
Cooper and the Amicus Curiae that our decision in
United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013),
indicates that SORNA’s general policy rationale is
constitutionally insufficient. In Reynolds, we determined
that the Attorney General failed to show good cause for
waiving the Administrative Procedure Act’s notice and
comment requirements in the issuance of the interim rule
regarding retroactivity of SORNA’s registration
requirements in February 2007. In so holding, we noted
that the Attorney General’s restatement of SORNA’s
public safety rationale by itself did not constitute good
cause to ignore the advance comment period required by
the Administrative Procedure Act. Id. at 512. Our
reasoning in Reynolds is not directly applicable to this
appeal. Here we assess the constitutionality of SORNA in
light of Supreme Court precedent on the nondelegation
doctrine. Thus, we decline to deviate from that precedent
based on our discussion in Reynolds of the Attorney
General’s action in issuing rules under the Administrative
Procedure Act.
23
Yakus, 321 U.S. at 420–23.
Second, the intelligible principle test requires that
Congress identify the recipient of the delegated authority.
Section 16913(d) unambiguously designates the Attorney
General as the recipient of the delegation. 42 U.S.C.
§ 16913(d).
Finally, while § 16913(d) itself contains no
limitations on the Attorney General’s discretion, we
understand the discretion delegated to the Attorney
General in § 16913(d) to be constrained by the legislative
determinations that Congress made in other sections of
SORNA. See American Power & Light Co., 329 U.S. at
104–05. In SORNA, Congress identified the crimes that
require registration, 42 U.S.C. § 16911; where the
offender must register, 42 U.S.C. § 16913(a); the time
period in which registration must be completed, 42
U.S.C. § 16913(b); the method of registration, 42 U.S.C.
§ 16913(b)-(c); the information that sex offenders must
provide in order to register, 42 U.S.C. § 16914(a); and
the elements of the crime of failure to register, 28 U.S.C.
§ 2250. Further, the boundaries of the Attorney General’s
authority are constrained by the task delegated by
Congress. In responding to the directive in Section
16913(d), the Attorney General can only determine the
specific question of whether SORNA’s registration
requirements apply to pre-SORNA sex offenders.
24
VI
It may well be, as Justice Scalia has written, that in
delegating this responsibility to the Attorney General,
Congress “sail[ed] close to the wind with regard to the
principle that legislative powers are nondelegable.”
Reynolds v. United States, 132 S. Ct. 975, 986 (2012)
(Scalia, J., dissenting). Indeed, we are puzzled as to why
Congress decided to delegate to the Attorney General the
authority to determine the applicability of SORNA’s
registration requirements to pre-SORNA offenders. The
decision to make SORNA’s registration requirements
applicable to pre-Act offenders is a weighty one—
particularly for the class of pre-SORNA offenders
affected by that decision. Although we find Congress’
delegation of this important decision curious at best, we
hold that it does not amount to an unconstitutional
abdication.
Under controlling nondelegation doctrine
jurisprudence, the hurdle for the government in this case
is not high.6 Applying the precedential authority on the
6
Each of our sister circuits to have considered the
issue has concluded that SORNA does not violate the
nondelegation doctrine. See, e.g., United States v.
Goodwin, 717 F.3d 511, 516–17 (7th Cir. 2013), cert.
denied, __ U.S. __, 134 S. Ct. 334 (2013); United States
v. Kuehl, 706 F.3d 917, 919–20 (8th Cir. 2013); United
States v. Parks, 698 F.3d 1, 7–8 (1st Cir. 2012), cert.
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nondelegation doctrine, we conclude that SORNA’s
delegation to the Attorney General in 42 U.S.C.
§ 16913(d) does not violate the nondelegation doctrine.
Accordingly, we will affirm.
denied, __ U.S. __, 133 S. Ct. 2021 (2013); United States
v. Rogers, 468 F. App’x 359, 362 (4th Cir. 2012) (not
precedential), cert. denied, 133 S. Ct. 157 (2012); United
States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United
States v. Guzman, 591 F.3d 83, 92–93 (2d Cir. 2010),
cert. denied, 130 S. Ct. 3487 (2010); United States v.
Whaley, 577 F.3d 254, 263–64 (5th Cir. 2009); United
States v. Ambert, 561 F.3d 1202, 1213–14 (11th Cir.
2009).
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