justice brett kavanaugh had not yet joined the court when oral argument was heard. justice kagan explained the decision as four of the justices joined the majority and the fifth justice came to the same outcome but didn't sign on to the opinion. chief roberts, clarence thomas and gorsuch dissented. the court heard oral argument back in october of 2018. this oral argument is about an hour. >> we will hear arguments in gundy versus the united states. >> mr. chief justice and may it please the court, the provision grants power to the nation's top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime

registration requirements on hundreds of thousands of individuals. it combines criminal law making and executive power in precisely the way that the constitution was designed to prohibit. the delegation is unconstitutional. this delegation can be distinguished from every delegation that has previously been upheld by this court, due to a combination of its total lack of standard and the nature and power -- nature and significance of the delegated power. unlike other delegations that this court has approved, this has no standard to guide the attorney general's exercise of discretion. >> well the government says they do have standard and it's the apply the prohibitions or the requirements in the law to the maximum extent feasible. >> your honor, that language does not appear anywhere in the statutory text, nor can it be derived from the sources that the government cites. >> what about the list that's

contained in 209.01, the list of past offenders? in your view, none of those people would be required to register? >> that's not correct. so one important thing about this case is that every state had an existing sex offender registration system prior to this enactment, and those registration systems would remain in effect regardless of whether it existed or not. and so, for example, petitioner was required to register under existing maryland law, and so would the vast majority of sex offenders who were also then required to reregister. these state registration systems had been in existence many of them since the early 90s, but since 96, every state had its own registration system. >> but they would be -- they would not come under the federal registration system which was

the purpose of sorna. none of those examples would be covered by the federal registration requirement. >> well, as this court held in reynolds, the congress left it to the attorney general to determine whether sorna would apply retroactively at all. congress declined to make the initial decision as to whether any offender should be required to register. this was consistent with how congress had approached registration schemes in the past. congress had previously enacted registration legislation that conditioned state funding on requiring certain things from sex offender registries, and in each of these prior cases, congress had not made the law retroactive. and so there's nothing strange about congress doing this. as the court held in reynolds, it then gave the attorney general full authority to decide whether the law should be applied retroactively so the initial on-off determination, but then as well, how it should

apply, which offenders should be included, if it should extend all the way back to 20, 30, 40 years. there was absolutely no guidance provided to the attorney general -- >> suppose the statute said that the attorney general shall have the authority to determine the application of this subchapter to preenactment offenders as public safety and fairness requires. would that be a violation of the non-delegation doctrine? >> yes, your honor, given the subject matter of this delegation, congress needs to provide more guidance than something along the lines of in the public interest. >> what about the most famous regulations, that i think people in the room would imagine rule 10b 5, it is promulgate under a statute that says the sec can forbid the use of any manipulative device that's like the sex offender part in such rules as are appropriate in the

public interest. >> so there are two distinctions. one is that the sec obviously is a different body than the attorney general. and so this is a point where the courts due process and delegation concerns converge. and it's important from the constitution to have a separation between the body that is the regulatory lawmaker and the body that is the prosecutor -- >> is it only the attorney general who falls within the rule that -- falls within your argument? >> that's something that exacerbates this delegation. >> but the sec has a rule such as we know 10-b 5, the public interest, the consumer product safety commission has another one, very similar, and we're told in one of the briefs that there are 300,000 such regulations. that may be an exaggeration, i don't know. so which in fact fall as you said within your especially harsh rule?

all the 300,000? we'll be busy in this court for quite a while. >> your honor, it is not an especial ply harsh rule -- -- especially harsh rule >> your especially stripped rule. >> some more congressional guidance when this -- >> -- all 300,000 of those -- whatever the number is, of those delegations are wrong? >> no. that's absolutely not our position. >> so what distinguishes those -- that delegation or those delegations from the example that justice alito gave. >> in each of the prior delegations that this court has uphold there has actually been some standard in the delegation provision even if it was what the court might be considered to be a broad -- >> but there are standards here. it is not the attorney general. it is the congress that defines what crimes will require registration, where, and when is

the individual required to register, what information is necessary, and the penalties for failure to register. all that is specified by congress. the attorney general is not at liberty to prescribe when, where, how, what crimes. all that is done by congress. >> but none of those very detailed provisions of sorna that congress set forth apply to pre-act offenders. the attorney general was given the power both to decide whether the law applied to pre-act offenders and how it should apply. >> that goes back to the question that the chief justice started with, because it seems that there is some language in the statute that supports the government's reading, that this is a statute that basically says register all pre-act offenders as far as possible with some understanding that there are feasibility considerations that

may make immediate registration of everybody impossible. so comprehensiveness, but moderated with a feasibility understanding. i think you would point to three things. you would point to the preamble, which talks about a comprehensive national system. i think you would point then to the definition, which says that the term, sex offender means an individual, any individual, an individual, who was convicted of a sex offense, and i think to get in the idea of feasibility, you might look to the delegation provision itself which talks about categories of sex offenders who are unable to comply with subsection b. so both comprehensiveness as moderated by some flexibility -- some feasibility constraint seems in the statute as long as you're taking the statute as a whole. >> so there are a few problems

with reading it that way. to start with the fact that in jw hampton, the court emphasized that the intelligible principle had to be clear from the legislative act itself, and so to the extent that the court is looking to other -- >> legislative act itself meaning only from the delegation provision? >> so legislative act -- >> but this is a legislative act. these are all parts of the statute >> that's right. the court rejected the idea that if there was narrow delegation provision that did not contain any standards that that then could be governed and given content by the general preamble to the act which is the argument that the government is thinking. >> when we are thinking about nondelegation it is essentially a statutory interpretation question which it seems should be governed by the same statutory interpretation we use elsewhere. we never look only to one provision. we look to one provision in a context of other provisions including purpose provisions. so we've -- if you look at

justice scalia's -- if you look at his separate opinion in reynolds, he clearly is looking to the purpose provision of this act and saying it demands comprehensiveness. >> i agree 100% with you that this could be a statutory interpretation issue, but we would prevail under that. the problem with the government's statutory interpretation argument is that the delegation provision here is not ambiguous. it gives authority to the attorney general when the court looks to say the statutory context or legislative history, seems to interpret that that statute, that's generally when the text itself is ambiguous and provides for two different plausible readings, but here that's not the situation. i just note justice scalia was dissenting of course in reynolds -- >> he was dissenting, but nine justices in reynolds all had the same view of this statute, which is that this statute demanded comprehensiveness in the registration of pre-act sex

offenders. in other words, both in the majority and in the dissent, this was the one point and comment that they said this statute was designed for something, and that statute did something, that it insisted that sex offenders should be read broadly to include any individual who was convicted of a sex offense and that all those people should be registered, you know, with some feasibility recognition. >> so i would like to address both comprehensiveness and the definition of sex offender, while also noting that of course if congress had actually wanted that construction, it would have been very easy for it to simply say that. >> but none of us said it. are we all wrong? every single one of us? >> your honor, i don't believe that's what reynolds says, but with respect -- because comprehensive is coming up so many times, the preamble states that it is a comprehensive national registration system. in the same way that the national gallery is a comprehensive art museum, that doesn't mean that it has every

painting that has ever been made. comprehensive can have different meanings. in this context, sorna is a 40 something provision statute that addresses every aspect of sex offender registration, not just who should register, but information sharing among jurisdictions, the internet design of websites for public registration, civil commitment of sex offenders, the use of federal law enforcement resources to assist with state registration systems. these various provisions comprise the comprehensive national registration system, and there's no indication that that general preamble meant that every pre-act offender had to be registered. there was a house bill that was rejected that was pending at the same time that would have both made it explicitly retroactive and that included a definition of sex offender that explicitly said offenders convicted either before or after the enactment of this act. >> i'm sorry --

>> where i get stuck on the preamble argument is that normally when we're doing statutory interpretation for the more specific statutory provision over the more general, and the specific statutory section dealing with preenactment offenders says unambiguously that the attorney general decides whether, how, when, and who, even who, so you don't even know if you're going to be subject to this law. >> yes -- >> how do people even know who is going to be included in this class until they hear from the attorney general? i'm having trouble thinking of another delegation which this court has ever allowed the chief prosecutor of the united states to write the criminal law for those he's going to prosecute. we say that vague criminal laws must be stricken. we've just repeated that last term. what's vaguer than a blank check to the attorney general of the united states to determine who he's going to prosecute?

>> i will cede my time. [laughter] >> then i will take back my time. [laughter] >> what was at stake here was civil liability rather than -- first what was at stake here was civil liability rather than criminal liability. would you make the same argument? >> that would certainly be a much closer case. our argument is that sorna would still be unconstitutional simply because of the total lack of standard, even in case like nbc or american power and light where the court has upheld arguably very broad delegations. there has been some standard in the law that even if seemingly broad as written, drew upon an existing body of established law. so for example, in nbc, the public interests, convenience and necessity certification for licensing was an established body of law that it was a certification that states had made to public service

industries since roughly the 1870s. there's no existing body of law to give context -- >> if you compare what we have before us with a statute that authorizes the attorney general to devise a rule to protect public safety, feasibility, and consideration of individual rights, that's the difference between improper delegation and proper delegation? >> perhaps. >> civil context, let's start there. >> certainly the congressional guidance is the difference. this comes back to the purpose of the test itself. the idea of the intelligible principle test is that it is not a delegation of legislative authority because congress itself has made the key legislative decisions. here with respect to pre-act offenders, congress has not made any of the decisions despite the extremely detailed framework that there is for post-act -- >> you think the attorney general could in that retroactivity have a different

set of offenders -- [inaudible] -- have different requirements for where and when the registration is to occur? >> yes, and this is something the court contemplated in reynolds, where it noted that 209.13-d, the delegation provision, essentially gave the attorney general three different spheres of authority. he could decide whether the act applied to pre-act offenders, whether it applied to pre-implementation offenders and how it applied to those offenders. the court recognized that he might for example want to set different registration rules for different classes of pre-act offenders and that was contemplated and permitted by the broad grant of authority. >> what if the act said that it applies to preact offenders and there was a provision saying the attorney general may waive the requirements of this act, when he determines that it's not feasible to apply them? and the attorney general says, you know, i don't think it is

feasible to apply this to preact offenders so i waive the act with respect to preact offenders. is that okay? >> so if the act said -- congress determines this should apply to preact offenders and then gave the attorney general a limited power to grant exemption, something which is basically the opposite of what this as written does, that would likely be constitutional, particularly if the -- if congress provided some guidance around -- >> even though the consequences are the same? the consequences are the same with respect to who is making the decision about whether the criminal law should apply to whom? >> respectfully the consequences are not the same. in the first instance congress has plead the decision and afforded the attorney general a power that is -- first if there is guidance provided with respect to the granting of exemptions, then -- >> let's say it isn't. the attorney general may issue exemptions to this act with respect to particular categories of offenders. >> even if, that would still be much closer to being

constitutional because congress has made the initial decision and has afforded the attorney general a power that is something more akin to traditional prosecutorial discretion. the dissent in reynolds, which is that seems closer to being constitutional because the pow their the attorney general has is -- power the attorney general has is closer to clemency or prosecutorial discretion power. in this case, however, the statute is worded in the opposite fashion. it does not apply of its own force to any preact offenders and the question of whether it should apply is left to the sole discretion of the attorney general -- >> who we routinely read into statute, limitations in order to save its constitutionality. >> yes. >> we do that routinely. and we have read into delegation

cases limits, so why is the reading in a feasibility here so unusual, given the three contextual signals that justice kagan listed previously >> so there are three reasons. one is that that is essentially the interpretation this the court rejected in reynolds, that was squarely the government's argument in reynolds and the court said no, that's not a plausible construction of this statute. the second reason is that in the context of the intelligible principle, it is essential that congress itself state the intelligible principle. the court addressed this in american trucking v whitman where there the agency itself had tried to propose a limiting construction to the delegation, and the court rejected that and said that the imposition of that limiting construction would be the exercise of the constitutional -- the legislative power itself, and so the imposition of that limiting

construction would be unconstitutional because it's exercising the legislative power. >> can we go back to -- mentioning it but on the first, in reynolds we said that it would have been strange indeed for anyone to imagine that congress intended the ag -- i'm trying to put it in -- that congress intended the ag to apply the act retroactively. that would have been strange for them to imagine that he or she wouldn't, that there might have been limitations because of some feasibility difficulties, but no one imagined the ag would exempt everybody. >> the intelligible principle cannot be the court's speculation about what congress thinks the attorney general might do. >> but we're speculating from the act itself. >> it's not speculating. it is interpreting. so if the best interpretation, and i realize you don't agree with this, but i'm posing it as

a hypothetical. if the best interpretation of the act is the sg's interpretation, do you agree that that would not pose a delegation problem? >> no, i don't agree. and so my friend uses different formulations of their interpretation, sometimes it is the maximum extent feasible, sometimes it is to the extent feasible and to the extent practicable. i would argue there are differences there. >> let's call so which i think is consistent with what reynolds said, in other words, what the act is telling the ag is go register preact offenders, except if you find it unfeasible. >> again, that's nowhere in the statute -- >> i understand that you think that, but if the statute -- if that is the best interpretation of the statute, would it pose a delegation problem? >> that likely would be constitutional, if you could read into the statute a command

the attorney general to register preact offenders to the maximum extent feasible, although, as the justice articulated in another case, there is still a question about what feasibility means. in this context particularly because these are not -- this is not a technical scientific area. this is not a question of how much air particle, at what cost can be taken from the environment, this is really the fundamental weighing of liberty versus security interests. the source of decisions that the people's legislative body is supposed to make and not supposed to delegate to the chief prosecutor. >> are we supposed to in your opinion start distinguishing among the 300,000 and say well, you have a weak standard if all the interest is the cost of pollution or something, but you have to have a strong standard where in fact what you said, the liberty and so and a medium standard perhaps for the sec. i don't know what we do about

the sec. and there are 300,000 approximately -- maybe there are only 200,000. but is that what you're suggesting we ought to do? yes? no? >> yes, and the court -- >> 300,000 -- >> your honor, i should -- i'm not conceding the 300,000. >> i wouldn't either. >> this is what the court said in american trucking v. whitman that the amount of guidance required depends on the scope of the delegated power. >> so if we're supposed to go through the 200,000 or 100,000, whatever, they are, what are the different categories where it's tough, not so tough, in your opinion? >> your honor, the question is not a matter of tough versus -- >> you see what i mean. categories where congress can delegate with an sec type standard or the standard here, in categories where congress has to be more specific. what in your opinion are the right categorys? >> so the factors about sorna

that are critical include the fact that it contemplates criminal sanctions. in 2b this court recognizes that its precedent supported requiring greater guidance for the promulgation of regulations that contemplate criminal -- >> isn't that all over the place, we have confronted delegation challenges to civil regulations whose violation will result in criminal sanctions. so i mean, there are num ruse of those cases -- numerous of those cases, i will give you three, avent is like that. these are all places where the delegation is to a civil regulation as it is here, but if you violate that regulation, that some secretary or attorney general or whatever has written, you're going to face criminal sanctions. so what's the difference between this case and all those other cases, where we said, you know, criminal sanctions is not what matters.

>> there's a perfect example because this is very different. this is not a question -- >> you can say that, and it's easy to make fun of the labels, but the person who violated that provision was going to go to prison in the same way that the person who violates this provision is going to go to prison. >> it is not making fun, your honor. it's that there are certain fundamental choices about a statutory scheme that congress itself must make. so congress can say that there needs to be particular packaging and a label, and then it can delegate or assign to it an agency the power to design -- >> the point i was making is that all of these are civil regulations. the delegation is to say you write -- we're going to give you some degree of discretion to write the civil regulation, understanding that if somebody violates that, that person is going to jail. >> your honor, may i answer your question and the reserve the remainder of my time? the question is always the nature and significance of the delegated power, and it is

perfectly fine for congress to permit agencies to fill in the details or otherwise implement statutes, but not to make these sorts of fundamental policy choices. thank you. >> thank you, counsel. >> mr. wall? >> mr. chief justice, may it please the court, i wanted to start this morning where justices ginsburg and kagan did with the text of the act because i do think it is best interpreted in the way we have said. starts in the first section, 3-a of the appendix of the government's brief with findings about existing sex victims and their offenders. and it says we want a comprehensive national system end quote to o address the offenders. it broadly defines sex offender and registration requirement, 5a, 11a, then it says, look, we know that translating the system we have just crafted for offenders going toward is going to create some real practical problems. for one, it is literally

impossible for them to comply with the timing requirement, unable to comply, those are the words in the title and text of 9-13d. so we are going to give to the attorney general the authority to take this scheme and implement it with respect to preact offenders recognizing that there are going to be some transitional issues. that kind of implementation is a classic executive function. it is what statutes give to the executive branch all the time. the petitioner has conceded i think just now that if the statute is best read in the way i'm reading it that it is perfectly permissible under this court's cases. >> let's take one of the items you just mentioned, comprehensive. the act says -- that doesn't mean it covers everything. it means that it has a scheme that it thinks addresses the waterfront, and part of the way it does that is to say we're not going to decide this significant category of cases. comprehensive they told you what's going to happen there and what they have said is the attorney general gets to decide. >> oh, it's certainly true that

congress made certain legislative judgments about what sex offenses would qualify, how long people would have to register for. they didn't say every offense that relates to sex means you have to register for a lifetime. that is certainly true. but once they've defined the bounds of the people they want into the system going forward, then they said to the attorney general, your job is to get as many of the existing offenders that fall into that universe into the registries as you can, recognizing there are going to be some practical barriers you will have to specify the applicability of the requirements. very narrow language. >> government made the opposite argument in reynolds. the government said that d is the more specific provision. and the nature of the comprehensiveness as the chief justice indicated for purposes of preenactment offenders, it's the attorney general gets to decide and the attorney general could decide to do nothing, the government said. the attorney general could decide to include some offenders, none of the offenders

or all of the preand ktment offenders -- preenactment offenders. the government said it could then determine which of the act provisions it wished to apply to these people it had chosen. the government then said the attorney general could change his or her mind about all of this at any given time. and in fact, the attorney general has changed his mind from time to time on these matters. so how do you square with what you just told us, with the government's prior representations in this case? >> well, the attorney general has never changed his or her mind with respect to the registration for individuals, but to go square root of the question -- >> there have been changes >> only with respect to the state's obligations to go out and find offenders, not with the individual duty on offenders to come forward and present themselves to register. >> attorney general holder changed the guidance provided by the attorney general; correct? >> he narrowed the state's obligations to give the states a little more breathing room. that's true. the individual duty to step forward and register has always been constant. to go to your question, i really

don't think that reading our brief in reynolds there's any inconsistency. we came in and said it is a statutory matter. this says he shall have the authority to specify the applicability. that clearly means since we know they want everybody in, that we should leave that like a waiver provision and to be sure that the court disagreed with us on that and said the default rule is different, but in the process accepted exactly our argument as the premise that the default rule didn't matter because congress wanted everybody into the system and so i think everybody was working off of that page in reynolds. >> mr. wall, your brief if reynolds is -- your brief in reynolds is very important to me. if i read it the way justice gorsuch does, assume his hypothetical, that you in fact said it was an on and off button that the attorney general could turn on and off, that's the position you took then. what does that do to you now? >> oh, to be clear, that's exactly the same position i'm

taking here today. 9.13-d -- >> no, you are adding in a caveat. you're saying he can turn it on and off based only on maximum lack of feasibility. >> no, i'm addressing a question that wasn't squarely before the court in reynolds. it is an on off switch to the attorney general, specify the applicability of the requirements. it is pretty narrow language and do it in such a way as to get them in. >> you're reading to get them in. i understand justice gorsuch's point that you said he could turn it on and off as he decided >> yes that's the attorney general's authority as a statutory matter. that's what the statute means. i believe the statute means the same thing we said in reynolds. the separate question is there guidance provided to the attorney general in the statute on how he should exercise that on off switch authority? and that question, not before the court in reynolds and not briefed in reynolds, the answer to that is pretty obviously yes. i mean, this falls well inside a

number of the delegations that the court has looked at because here it is not as if there is some standard in the statute like public interest or fair and reasonable rates, where the executive is really doing the fleshing in. here congress set forth all the rules. it made judgments about all the requirements. >> what do you say to the argument on that score, under your view that congress could have simply enacted a statute with respect to post enactment offenders that mirrored the language of d that it is up to the attorney general to come up with comprehensive and feasible registration regime in the public interest, you would be here defending that, wouldn't you? >> it would be a much broader delegation. under this court's cases you need more of a general policy. it is not at all clear why congress wouldn't apply it -- >> what's the difference? half a million people are affected by this delegation. >> if congress found there are practical problems with applying going forward here's our general policy to the attorney general. i don't know it would be different from saying to the

attorney general in 2b which drugs will be controlled substances on the act or in union bridge which bridges will we think obstruct the rivers or who will be allowed to graze on federal land. >> can you answer my question would you be here defending a statute that mimic d with respect to post enactment offenders in which case why does congress bother to legislate sorna at all. >> it is difficult to know in that situation justice what the equivalent practical problems for why congress -- what i'm saying is i don't know. i don't see any practical problems that would have required congress to legislate in that way so it's very difficult to man that that statute would -- it is difficult to imagine that that statute would pass muster. >> can you tell me how retroactive works?

let's take somebody who was convicted of a sex offense, 30 years ago, he's had a clean record ever since, first tell me how that the person gets notice of the registration requirements. >> so he's only required to register if he's a tier 3 offender, so if he's got a really grave sex offense like -- >> but it was 30 years ago >> yes. so i think he's on notice from the enact of sorna and the attorney general's interim rule in 07, carried forward in the final rule in 10, there's an across the board registration requirement. >> he has to know what the attorney general's regulation is? there's no notice given to these people. they can be charged with failure to register even though no one

ever gave them notice that they had to register? >> i suppose you could try to bring as applied due process challenge. of course petitioner won't be able to do that. petitioner was informed in 2012 before he left the custody, both in writing and orally that he needed to register when he moved to new york and then he failed to do it. so i take the point that there could be as applied notice problems, but i don't think there's one here. and to get back to what i was talking with justice gorsuch, i think at the end of the day, this is not a provision that just lays out the general standard and requires all the fleshing in. that the court has held as permissible provided you supply general policy, but it is inside of that because congress set up a pretty retick lated scheme, made a lot of judgments along the way. >> do you think if there were a new attorney general who came in and said, you know, i think this registration stuff has gone overboard, and i'm going to start making some exceptions,

with respect to pre-act offenders, i think that's just unfair to penalize them for the rest of their lives, could the attorney general do that? >> no, we don't think the attorney general could make judgments on the basis other than feasibility and disagree with congress as policy judgments. and if the court had any doubt about that, it should construe the statute more narrowly in the way i think the most reasonable interpretation to avoid the constitutional problem. >> when you say the attorney general -- tell me what you think the attorney general cannot do, given the language of this statute and given the language of reynolds. >> so i don't think the attorney general could say look, i know congress set up three tiers with registration, lengths of 15, 25 years, and life but i'm going to require you to register but only for a few years. it is perfectly feasible. i could require you all to register and there would be no problem with state registries but i disagree with the congress that you have to register.

i don't think the attorney general could do that. >> i'm trying to think of -- i think a point was trying to be made in my mind is something like this, that the executive branch has many different functions. they do all kinds of different things. one of the things they do is prosecute people. now, it's quite different from the sec and all these other agencies because they have other things to do. and moreover, there's a safeguard going through the department of justice. and there is a particular danger when you combine prosecuting a person with the writing of the law under which you prosecute. and the danger is captured in the bill of a danger clause. it's captured maybe in other clauses. it's captured in the words liberty. and it's that particular danger that means when you have a person whose job is prosecuting, be careful especially careful

that that person cannot also write the law under which he prosecutes because there we risk vendetta. now, i think my interpretation of what she's saying is something like that. so what is your response? >> so i do think that plays itself out in certain rules like not deferring to the executive, interpretation of criminal statutes but the court has considered that argument twice in the nondelegation context and rejected it both times. 2b they made the same argument. they said look you can't delegate to the executive branch which substances will be control under the act because they are both defining what's illegal to possess and they are prosecuting you. in 2b you said no not for nondelegation purposes. that controls from one branch to the other. not where the power is allocated within the executive branch. even more to the point in loving, there was the availability of the death penalty. the president was specifying aggravating factors nowhere to be found in the statute.

in this court the executive was defining the criminal penalty, no t what the executive has done here. this court said we have upheld delegations where the executive defines by regulation what conduct will be criminal so long has congress -- >> those are standards, quite right. i see where you are going there. but what we've been arguing here is basically the nondelegation doctrine informed perhaps by the need to prevent vendettas in liberty. suppose you reverse that. suppose you said the problem here is a due process argument. it is a liberty protecting argument. and in interpreting that argument, we should inform our thought with nondell grags principles. >> -- nondelegation principles. >> i think the nondelegation context is on odd one to cash that out as opposed to vagueness

or due process because it is asking whether the congress has made the basic policy judgment that can inform the executive's exercise of power. if the executive can define the availability of the death penalty in loving, here it seems well within. not filing a tax return is a criminal violation, but nobody thinks the irs is defining the scope of the criminal law. though in some sense it is by telling you what the civil requirement is. >> this is different in the sense that the attorney general is deciding what law applies. not whether a particular act or particular exercise in commercial activity is covered by an act that certainly applies in a general sense. i mean, it is not this -- in those instances, even in 2b, it's exercising fairly refined

authority with respect to what activity is covered. here it's just saying are you going to be -- does the law even apply to you? it seems to me that's a substantive difference. >> i don't know, mr. chief justice. i don't know why we would think that specifying whether the drug you're holding is lawful or unlawful, whether your bridge has to be taken down, whether you can graze on public land, whether your rates are unreasonable is different in kind from whether you have to register going forward and report to the federal government. either way the executive branch tells you whether your conduct brings you within a scope of a law or it doesn't. >> well, the bridges, yes, i mean, the executive branch has to specify what type of bridge needs to be -- what height or whatever and if it's this or that. but it's a different thing when the attorney general says here's a law that covers bridges you get to decide whether it governs at all in particular areas.

>> i understand if sorna didn't have the kind of guidance that it had here, if it hadn't defined the criminal offense, if it hadn't fixed the punishment, if it hadn't set a reticulated scheme on the civil side i understand if it hadn't made those judgments there could be more serious problems, but to do all of that and then say but look we know there's going to be some practical problems, it is not just the timing, the state -- sorna requires a lot of things, provide your motor vehicle information. provide your dna. provide your photos. do periodic show ups. there's no dispute i think that the state registries at the time sorna was passed were not equipped to do all of that. congress looking at that saying look we have hundreds of thousands of people out there we want to bring into the system, we know they can't all come in on day one. there's going to be some transitional issues that we're going to have to work out. and the person to work those out is the person for the last 12 years has been dealing with that subject and interacting with the states and at the end of the day, that's really much more

about implementation than it is about policy judgment. i mean, here it really is inside of the outer bound because you've got an intelligible principle that's anchored in the text of the statute, not always true in some of those cases, and you really have what's much closer to a classic executive function because it's just specifying the applicability of the requirements themselves. it's not even like the attorney general is providing the substance of those requirements. and even that of course the court has said okay. >> mr. wall, i want to develop a little bit what justice breyer was after. is there something unusual about the attorney general's presence in this case, as the chief prosecutor, kind of a conflict of interest, what if feasibility you were arguing just in reasonable or in the public interest, other standards that might have applied in a civil delegation context, would you think that the attorney general of the united states could decide the applicability of a criminal law for the half a

million people on the basis of his or her judgment about its public interest or whether it's just and reasonable? or do you accept the suggestion of this court in 2b that delegations in the criminal context involving the attorney general may merit a heightened standard of review? >> justice gorsuch, i don't think the court needs to cross that bridge here. >> i understand that. i'm asking you to answer that question. >> i want to try to. i think the court has had several cases where criminal penalties were indirectly or directly involved from loving, mestruta, it is never suggested even when faced in the exact argument in 2b that the bar ought to be raised higher, but i will grant that in 2b, the court said it didn't need to address that, though it had never done that in any of its previous cases and just say look if this statute did that, if it did nothing more than to say to the attorney general, register them, you know, as reasonable, no

requirements, no creation of the criminal offense, no fixing of the penalty. >> just and reasonable or in the public interest, would those be okay or not okay? >> i think as long as it's done the things it's did here, defined the elements, fixed the penalty, on the civil side it's said provided some standard like that in the statute the court's cases indicate that's enough. even if you think that's not enough, this statute does come inside of that. because this is not an agency just applying all of the real content or substance to a broad standard like public interest or just and reasonable. in the statute congress made a lot of those judgments for itself and left to the attorney general a much narrower practical problem. is >> there's a lot of discussion in our case law about the propriety of the court reading into statute words. and i think a fundamental issue that justice gorsuch has been

aiming at is especially in criminal law, is it just to delegate to the attorney general a fundamental decision about who gets covered or doesn't get covered by a statute? that seems like -- it seems like at the core of what a law is. if someone does x act, you're covered, or you are not. if congress had said that, we probably wouldn't have found the retroactivity problem, but what is the essence of nondelegation that we don't let the legislature define who is a criminal? and so isn't retroactivity a definition of who is a criminal? >> so two separate points, justice -- >> or who might be a criminal

because -- >> two separate points first if congress had given the same authority to the attorney general and not otherwise expressed any intention with respect to how that authority would be exercised, i will grant -- >> there's no plain words that add maximum feasibility in this statute, so you're discerning words -- >> i am, justice sotomayor. i am doing what the court did in other cases. in none of those was the intelligible principle spelled out in the statute in so many words and the court engaged the interpretive act looking at the act as a whole and said based on provisions would a reasonable attorney general understand or reasonable executive official understand what policy they were meant to pursue in exercising this authority, and to be honest with you, i think it defies both the text of sorna and reality to think that congress was agnostic about whether hundreds of thousands of people who have committed very serious sex offenses as petitioner has

should be required to register. i think there's no way to read sorna's text, its legislative history and not come away with a firm and definite notion that congress wanted as many of those offenders in the system as the attorney general could get in. practical problem on how to accomplish that. >> if you take out legislative history and you take out policy statements, because there are some of my colleagues who don't rely on either of those two things. what's left? >> i would say the findings in 209.01, the statement of expressed statutory purpose which this court has relied in cases like nbc and new york central for a comprehensive national system, the inclusive definition of sex offender, the broad registration requirement in 29.13a and then the text and title of 9.13d which say that grant of authority was about addressing the inability to comply. we know on its face that what spurred this was a practical consideration, a concern, by congress about how to get these people into the system.

all of those things taken together i think -- the intelligible principle here far more anchored in the text of this statute than take a case where justice jackson for the court looked at the norms of the banking industry or where the court discerned it from a number of other statutory provisions that i don't think were as definite as what it faces here. loving, the same thing. collock the same thing. here you have a general policy, intelligible principle that is anchored in the text of the act, even apart from legislative history and policy statements and all the rest which we have not relied on in our brief. >> the part that's still gnawing at me -- i mean your basic argument is there is a standard here, and that's the end of the game. but in writing it, i guess i have to think through the nondelegation doctrine. so i'm just interested if this strikes any thought in your mind. let's take the securities act of 34, what it says is you can't

use a manipulative device, that's a fraudulent device, that's the equivalent here of the sex offense. it says you cannot use them in contravention of such rules as the sec may prescribe as appropriate in the public interest. suppose instead of that word sec, everything's the same, but it doesn't say sec, it says attorney general. so what you have is it is a crime. to violate a rule where it concerns a manipulative device, in violation of such rules as the attorney general finds appropriate. the difference being you don't think he's an expert on securities. though the sec is. >> right. >> does that matter? should it matter? should we suggest in the opinion that it might matter? >> so to the extent it matters, here's what i think you could

say in the opinion. if the executive official, the attorney general were defining the elements of the offense or defining the criminal punishment, that would raise the 2b question, but where the attorney general or the executive official is defining a civil requirement as with the 34 act, to which criminal consequences can possibly attach, that falls squarely inside a handful of cases where the court has approved exactly that. so i think the court can set aside the tougher case than this one where congress hasn't defined the elements of the offense and fix the punishment itself, but left those things to the executive branch. i do want to say just a word about the harms here before i sit down so that we all understand what's in play. 18 jurisdictions have substantially implemented sorna. of the remaining 32 states, 26 of them have taken federal funds and are attempting to substantially implement but not there yet. if petitioner prevails, i believe, though petitioner's brief don't say that all of their arguments translate not

just from the preact offender clause but also to the preimplementation clause and if that's right there will be no federal duty to register in the 32 states that haven't substantially implemented. as a matter of federal law, more than half the country will be sex offender registration free zone. in the remaining 18 states they won't pick up new preact offenders who come into contact with the justice system because there will no longer be a duty to register. our best estimate we will lose a couple of thousand people out of the registries every month. and that's not even including tribal areas where we wouldn't be able to get at nontribal members and of course some substantial portion of the 4,000 convictions at issue would be in jeopardy of being vacated either on direct or collateral review. sorna's efficacy if petitioner prevails will not just be sharply curtailed, it will arguably be thoroughly gutted. as a matter of how this federal law works. and if it is possible, and we think it is not just possible,

but the most natural interpretation of the attorney general's authority to say this is a narrow authority to specify the applicability of requirements in an on off way in order to get people into the system and that interpretation avoids constitutional problems, right, if it's constitutional, if we read it to say do it as to the extent you can, then this petitioner -- i think it's possible to read the statute that way, that's constitutional and that's what we would urge the court to do. ::

>> the petitioner will requirede law and still be required to register. this is a long retroactive which is part of the reason it has implemented it. and spoke out against retroactive implication of the long which is determination and based on the experts in this area is said the allegation was all about practicality, but the reality is the promulgated rules does not account for practicality in any way which is further evidence for this court that to the extent feasible was not the standard of this allegation. that is not the standard that exists in the text. let's not what was found by any circuit court and it wasn't even the intelligent principle that the attorney general himself said that he was acting pursuant to the need. in his final regulation he said

that i quote, the defenders to the extent he determines that the public benefits so he believed that his discretion was to essentially undertake the fundamental policy determination as to whether that outweigh the benefits. she did not outweigh this is a reasonability or practicality. finally i would just like to emphasize the special nature. it's not licensing or civil rulemaking, this is the retroactive application of criminal law penalties that affects liberal interest in the profound way. this is an area where the constitution specified there must be division between the lawmaker in between the executive. for that reason this allegation is unconstitutional. thank you. >> thank you counsel, the cases

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