Author Topic: In Sharp Dissent, Neil Gorsuch Faults SCOTUS for Letting the Attorney General 'Write His Own Crimina  (Read 995 times)

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Offline EasyAce

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The conservative justice comes out swinging on behalf of the non-delegation doctrine.
By Damon Root
https://reason.com/2019/06/20/in-sharp-dissent-neil-gorsuch-faults-scotus-for-letting-the-attorney-general-write-his-own-criminal-code/

Quote
The U.S. Constitution places the federal lawmaking power in the hands of Congress. Yet today a narrow majority of the U.S. Supreme Court held that Congress did not violate the Constitution, even though it passed a law which delegated a significant degree of lawmaking authority to the attorney general. Writing in dissent, Justice Neil Gorsuch faulted his colleagues for letting Congress "hand off to the nation's chief prosecutor the power to write his own criminal code."

At issue in today's ruling in Gundy v. United States is the Sex Offender Registration and Notification Act of 2006 (SORNA). Among other things, SORNA requires convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

It also says this: "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." Put differently, Congress left it up to the attorney general to decide how to deal with the estimated 500,000 individuals whose sex crime convictions predate SORNA's passage.

"It would be easy enough to let this case go," Justice Gorsuch acknowledged in his dissent. "After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else." In Gorsuch's view, SORNA effectively combined the Article I powers of Congress with the Article II powers of the executive in a single federal official. That result, he argued, marks "the end of any meaningful enforcement of our separation of powers."

Gorsuch's dissent was joined by Chief Justice John Roberts and Justice Clarence Thomas. Justice Brett Kavanaugh took no part in the case . . .


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Online Bigun

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Justice Gorsuch is 100% correct!  The Congress has been shoving its Constitutional duties off on others for so long there is no one alive who can remember when they didn't. It's an atrocity of the first order!

@EasyAce
« Last Edit: June 21, 2019, 05:39:31 pm by Bigun »
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Bill Cipher

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Disagree with Gorsuch on this. 

Offline GrouchoTex

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"In her majority opinion, Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, argued that if the congressional delegation at issue in this case qualifies as unconstitutional, "then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs."
"

Somewhat correct.
Congress does need to give discretion to the executive officials to implements its programs.
However, it does not give that discretion on the law itself.

"Congress left it up to the attorney general to decide how to deal with the estimated 500,000 individuals whose sex crime convictions predate SORNA's passage."
Which means congress didn't write that into the law, and shirked its responsibility, in my view.

Why would the Attorney General be given the authority to anything here?

Either:

(a) Nothing happens to those individuals whose crimes pre-date SORNA, because it wan't the law.
(b) A law is written to answer this question

(b) runs the risk of Double Jeopardy.

This ruling is ripe for misinterpretation and corruption, as it does hand the power to the Attorney General to decide, without real guidelines on how to proceed.


« Last Edit: June 21, 2019, 06:38:00 pm by GrouchoTex »

Offline GrouchoTex

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"Kagan also buttressed her opinion by favorably citing and quoting from a past dissent written by the late Justice Antonin Scalia, who warned the Court against feeling "qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."

True, perhaps, so the "pre"-existing law(s) covered this, correct?

The court should be "qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law", in this case, since congress left it up to the AG to decide what this law that pre-dates SORNA is.



« Last Edit: June 21, 2019, 06:36:59 pm by GrouchoTex »

Offline GrouchoTex

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Justice Samuel Alito concurred in the Court's judgment today, making the final vote 5-3. But Alito also wrote separately to say that if the Court wanted to reconsider its overall jurisprudence in this area, "I would support that effort. But because a majority is not willing to do that," he continued, "it would be freakish to single out the provision at issue here for special treatment." In other words, Alito might agree with the reasoning in Gorsuch's dissent in a different future case.

Alito is admitting that they are missing this, but won't change it, until maybe, someday?