Supreme Court upholds sex offender registration rules

However, battle over separation of powers will likely continue

A divided Supreme Court ruled Thursday that a federal program regulating the registration of sex offenders is constitutional.

The case split the court, took months to decide and was watched closely because it raised questions about how much authority Congress can cede to the executive branch — in this case, the attorney general.

More than the fate of a specific federal program, the decision seemed to portend major battles over conservative concerns about the “administrative state,” and whether executive agencies and unelected public officials have been given too much power.

The case was one of the first argued last October, when the court’s current term began, and was decided in its closing days on a 5-to-3 vote. There were indications it would have come out differently if it had been considered after Justice Brett Kavanaugh joined the court and there was a full bench.

The court was split 4-4 on the question, and Justice Samuel Alito said he joined the liberals to make a majority only because of how the court had ruled on such questions in the past.

“If a majority of this court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort,” Alito wrote. “But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”

Justice Elena Kagan, writing for the plurality, said her conservative colleagues were close to making a mountain from a molehill in examining the Sex Offender Registration and Notification Act (SORNA).

“If SORNA’s delegation is unconstitutional, then most of government is unconstitutional — dependent as Congress is on the need to give discretion to executive officials to implement its programs,” Kagan wrote.

The case was brought by Herman Avery Gundy, who in 2005 pleaded guilty in Maryland to sexual assault of a minor. After his release from prison, Gundy was arrested and convicted of failing to register with local authorities in New York, as required under SORNA.

The federal law was enacted after his conviction, but it allowed the attorney general to decide the rules for those like Gundy. His lawyers at the Supreme Court said it gave the AG power both to write and enforce the law.