Supreme Court Sustains Executive Power in Sex Offender Case

WASHINGTON — The Supreme Court on Thursday ruled against a sex offender who had been convicted of failing to register with local authorities after his release.

The case had been closely watched because it could have given the court a chance to reconsider the fundamental constitutional question of how much authority Congress can delegate to the executive branch. In a 5-to-3 decision, the court ultimately ducked the question, but only after what appeared to have been a considerable and extended struggle.

The case was argued on Oct. 2, before Justice Brett M. Kavanaugh joined the court. He did not participate in the decision, and Thursday’s opinions indicated that the court had been split 4 to 4. In the end, Justice Samuel A. Alito Jr. cast his vote with the court’s four-member liberal wing to form a majority, but he adopted none of its reasoning.

Indeed, he indicated that he may be prepared to vote the other way if the question returned to the court and was heard by a nine-member bench.

“If a majority of this court were willing to reconsider the approach we have taken for the past 84 years,” Justice Alito wrote, “I would support that effort. 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.”

That provision is part of the 2006 Sex Offender Registration and Notification Act, or Sorna, which allowed the attorney general to decide how broadly to apply it to people who committed offenses before its enactment.

The offender challenging the law, Herman Gundy, was convicted in 2005 of sexually assaulting a minor. After his release in 2012, he was prosecuted for failing to register. In the Supreme Court, Mr. Gundy argued that Congress could not have delegated the decision of whether the 2006 law applied to him to the attorney general.

Justice Elena Kagan, writing for the four-justice plurality, said the law satisfied the court’s usual test of whether a delegation of authority was proper by having supplied an “intelligible principle” to guide the attorney general’s actions. As she read the statute, the attorney general had to require registration to the maximum extent feasible while taking account of the difficulty of notifying offenders convicted before the law took effect.

The law, she wrote, “falls well within constitutional bounds.”

Justice Kagan also alluded to the larger issues at stake. “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,” she wrote.

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined Justice Kagan’s opinion.

In dissent, Justice Neil M. Gorsuch said the justices in the majority had committed a grave mistake.

“Yes,” Justice Gorsuch wrote, “those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”

He challenged Justice Kagan’s reading of the law, saying it gave the attorney general vast discretion, leaving him free to impose on some 500,000 people “all of the statute’s requirements, some of them, or none of them.”

“And he is free to change his mind at any point or over the course of different political administrations,” Justice Gorsuch wrote.

Chief Justice John G. Roberts Jr. and Justice Clarence Thomas joined Justice Gorsuch’s dissent.

“In a future case with a full panel,” Justice Gorsuch wrote, “I remain hopeful that the court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code.”