in. later the senate returns to continue debate on renewing coast guard funding programs. , ae on c-span three discussion on advances in cancer detection and treatment at 8:30 a.m., and the senate judiciary committee holds a hearing on bank bankruptcy at 2 p.m. next, the supreme court oral arguments in the case deciding whether the federal government can applies sex offender registration requirements on those convicted wiretap 2006, when the lowest enacted. the men who brought the case was convicted of a sexual offense in 2005. this is a little less than >> we'll hear argument first

this morning in case 17-6086, gundy versus the united states. >> mr. chief justice and may it please the court, the sorna delegation provision grants power to the 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. this 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 significance of the delegated power. unlike other delegations that this court has approved, sorna has no standard to guide the

attorney general's exercise of discretion. >> well, the government says that they do have a standard, and it's the applied, the requirements in the law to the maximum extent feasible. >> 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 of past offenders. on your view none of those people would be required to register. >> that's not correct. one important thing about this case is that every state had an existing sex offender registration system prior to sorna's enactment, and those registration systems would remain in effect regardless of whether sorna existed or not. 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 re-register under sorna. these state registration systems had been in existence, many of them, since the early '90s but since 1996, every state had its own registration system. >> but they would be, it would not come under the federal registration system which was the purpose of sorna to create, none of those examples would be covered by the federal registration requirement. >> well, as this court held in reynolds, congress left it to the attorney general to determine whether sorna would apply retroactively at all. so congress declined to make the initial decision as to whether any pre-act offender should be required to register. this is consistent can how congress approached this 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 those prior cases, congress had not made the law retroactive. 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 offender 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 the 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 allegation, congress needs to provide more guidance than something along the lines of in the public interest. >> what about the most famous regulation, i think people in this room would imagine, rule 10b-5? rule 10b-5 is promulgated under a statute that says the s.e.c. can forbid the use of any manipulative device, like the sex offender part, in contravention of such rules as are appropriate in the public interest. >> so there are a few distinctions. one is that the s.e.c. obviously is a different body than the attorney general and so this is a point where the court's due process and delegation concerns converge. 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. >> only the attorney general who falls within the rule, falls within your argument? >> that's something that exacerbates this delegation. >> but the s.e.c.

has a rule such as we know, 10b-5, the word is the public interest. the consumer product safety commission has another one very similar. we are told in one of the briefs 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 specially harsh rule? all of the 300,000? we will be busy in this court for quite awhile. >> your honor, it's not an especially harsh rule. what it would require, especially strict rule. some more specific congressional guidance when this power is delegated. a few things to say. >> you are answering justice breyer, yes, that 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 upheld, there has actually been some standard in the delegation provision even if it was what the court might consider to be a broad area. >> is there a standard here? it's not the attorney general, it's the congress that defines what will require registration, where and when the individual is required to register and what information is necessary, and the penalty for failure to register, all that is specified by congress. we are not at liberty to proscribe when, where, how, 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 then how it should apply. >> that goes back to the question 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 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 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's provision itself which talks about categories of sex offenders who are unable to comply with subsection b. so both comprehensiveness as moderated by 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 j.w. hampton, the court emphasized that the intelligible principle had to be clear from the legislative act itself, so to the extent that the court is looking -- >> the legislative act itself meaning only from the delegation provision? from a legislative act. this is the legislative act. >> these are all parts of the statute. >> that's right.

and the court rejected the idea if there was a narrow delegation provision that did not contain any standards, that that could then be governed and given content by the general preamble to the act which is exactly the argument the government is making here. >> when we are thinking about nondelegation it's essentially a statutory interpretation question, which it seems should be governed by the same rules as statutory interpretation that we use elsewhere. and we never look only to one provision. we look to one provision in a context of other provisions, including, if you look at justice scalia, he clearly is looking to the purpose provision of this act in saying it demands comprehensiveness. >> i agree 100% with you that be a statutory interpretation, the problem with that argument is the delegation provision is not ambiguous. it gives authority to the attorney general. at thee court looks

statutory context or legislative history, it seems to interpret that statute, that is in the text is ambiguous and provides for different readings. here that is not the situation. justice scalia was dissenting. but alls dissenting, nine justices 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 in common, that they said this statute was designed for something and this statute did something, that it insisted that a sex offender 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. >> i would like to address the comprehensiveness in 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. >> nine of us said it. were we wrong, every single one of us? >> your honor, i don't believe that's what reynolds says, just because comprehensive is coming up so many times, the preamble states that it is a comprehensive national registration system. in the same way the national gallery is a comprehensive art museum, that doesn't mean 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 web sites for public registration, civil commitment of sex offenders, the use of federal law enforcement resources to assist the 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 guess where i get stuck on the preamble argument is normally when we are doing statutory interpretation for specific statute information 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 are going to be subject to this law. how do people even know who is going to be included in this class until they hear from the attorney general? and 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 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? >> yes, you argue it very concisely. i will cede my time. >> then i will take back my time. >> what's at stake here was civil liability rather than, suppose 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 cases like mbc or american power and light

where the court 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. for example, in mbc, the public interest, convenience and necessity certification for licensing was an established body of law, it was a certification states had made to public service industry since roughly the 1870's. >> would you compare what we have before us with a statute that says, 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 just comes back to the purpose of the test itself, the

idea of the intelligible principle test is that it's 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 -- >> do you think the attorney general could, in that retroactivity, have a different set of offenders than sorna itself has different requirements for where and when the registration is to occur? >> yes. this is something the court contemplated in reynolds, where it noted that 209-13d, 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 plenary grant of authority. >> what if the act said it applies to pre-act 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? the attorney general says i don't think it's feasible to apply this to pre-act offenders so i waive the act with respect to pre-act offenders. is that ok? >> so if congress determines this should apply to pre-act offenders, 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 congress provided some guidance around -- >> even though the consequences are the same with respect to whether or not, 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 made the decision and then they have afforded the attorney general a power that is, first, if there is guidance provided with respect to the granting of exemptions >> 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. it's not the same but this was the point that justice scalia joined by justice ginsburg made in dissent in reynolds which is that that seemed closer to being constitutional because the power that the attorney general has is closer to a traditional clemency or prosecutorial discretion power. in this case, however, the statute is truly worded in the opposite fashion. it does not apply of its own

force to any pre-act offenders and the question of whether it should apply is left to the full discretion of the attorney general. >> 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 context contextual signals that justice kagan listed previously? so there are three reasons. one is that that is essentially the interpretation that 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, so the imposition of that limiting construction would be unconstitutional because it's exercising the legislative power. >> can we go back, in reynolds we said that it would have been strange indeed for anyone to imagine that congress intended the a.g., i'm trying to put it, that congress intended the a.g. to apply the act retroactively. 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 a.g. would exempt everyone. >> the intelligible principle cannot be the court's speculation about what congress thinks the attorney general might do. >> we are speculating from the act itself. >> it's not speculating. it's interpreting. so if the best interpretation, 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 that interpretation, do you not agree that would pose a delegation problem? >> no, i don't agree. my friend uses different formulations of their interpretation. sometimes it's to the maximum extent feasible, sometimes it's to the extent feasible, sometimes it's to the extent practitable, and i would argue there are differences there. >> let's call it which is consistent with what reynolds said, to the maximum extent feasible. in other words, what the act is telling the a.g.

is go register pre-act offenders except if you find it unfeasible. >> again, that's nowhere in the statute. >> i understand that you think that. but 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 pre-act offenders to the maximum extent feasible although as justice rehnquist articulated in industrial union, the benzene case, there's still a question what feasibility means. in this context particularly, because 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 sorts of decisions 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 that's at interest is the cost of pollution or something, but you have to have a strong standard where, in fact, it's what you said, liberty and a medium standard perhaps for the, i don't know what we do about the s.e.c. and there are 300,000 approximately, maybe only 200,000, but is that what you're suggesting we ought to do? yes, no? >> yes, and, yes. your honor, i'm not conceding the 300,000. 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. >> ok. if we are supposed to go through the 200,000 or 100,000 or 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, >> you see what i mean. categories where congress can delegate with an s.e.c. type standard or the standard here, categories where congress has to be more specific. what in your opinion are the right categories? >> so the factors about sorna that are critical include the fact that it contemplates criminal sanctions. in 2b this court recognized its precedent supported requiring greater guidance for the promulgation of regulations that contemplate criminal -- >> but isn't that all over the place? we have confronted delegation challenges, the civil regulations whose violation will result in criminal sanctions, so i mean, there were numerous of those cases but i will just give you 3. 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 are 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. >> well, that's a perfect example because this is very different than oleo-margarine label. >> you can say that. it's easy to make fun of oleo-margarine labels but the person who violated that provision was going to go to prison in the same way the person who violates this provision is going to go to prison. >> it's not making fun, your honor. it's that there are certain fundamental choices about a statutory scheme 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 -- >> the point i was making is all of these are civil regulations. the delegation is to say we are 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 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, counsel. mr. wall? >> mr. chief justice, and may it please the court, i wanted to start this morning with 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. it starts in the first sections, 3a of the appendix of the government's brief with findings about existing sex victims and their offenders.

it then says quote, we want a comprehensive national system, end quote, to address the offenders. it broadly defines sex offender and the registration requirement at pages 5a and 11a, and then it says in the 913-d, it says look, we know that translating the system that we have just crafted for offenders going forward is going to create some real practical problems. for one, it's literally impossible for them to comply with the timing requirement. unable to comply. that's the title in the text. so we are going to give to the attorney general the authority to take this scheme and implement it with respect to pre-act 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. petitioner conceded i think just now that if this statute is best read in the way i'm positing

that it's perfectly permissible under this court's cases. >> let's take one of the items you just mentioned, comprehensive. that doesn't mean that 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've 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've got to register for a lifetime. that is certainly true. but once they have 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 who fall into that universe into the registry as you can, recognizing there are going to be some practical barriers. you are going to have to specify the applicability of the requirements. the government made the

opposite argument in reynolds. the government said that d is a more specific provision and the nature of the comprehensiveness as the chief justice indicated for purposes of preenactment offenders was that the attorney general gets to decide and the attorney general can decide to do nothing, the government said. the attorney general could decide to include some offenders, none of the offenders or all of the pre-enactment offenders. the government said it could then determine which of the act provisions it wished to in a chinese menu, manner, apply to these people. the government then said the attorney general could change his or her mind about all of this at any given time. 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 what the government's prior representations in this case? >> the attorney general has

never changed his or her mind with respect to the registration duty for individuals. >> 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 show less -- >> the attorney general holder changed the guidance by the prior attorney general, correct? >> he narrowed the states' obligations to give the states 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 reynolds there's any inconsistency. this says he shall have the authority to specify the applicability. that clearly means since we know they want everybody in, that we should read that like a waiver provision and to be sure the court disagreed with us on that and said the default rule was different, but in the process, accepted our argument as premise, 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. >> your brief in reynolds was

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? >> to be clear, that's exactly the same position i'm taking here today. >> no, you are adding in a caveat. you are 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, pretty narrow language, and do it in such a way as to get them in. >> you are reading to get them in. understand justice gorsuch's point where he said he could turn it on and off as he decided. >> that's the attorney general,

that's what the statute means. i believe the statute means the same thing we said in reynolds, the court disagrees with the default rule. the separate question is, is there guidance provided to the attorney general in the statute on how he should exercise that on/off switch authority. 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 the court has looked at because here it's 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 flushing in. here, congress set forth all the rules. it made judgments about all the requirements. >> what do you say that under your view, congress could have simply enacted a statute with respect to post-enactment offenders that mirrored the language, and say it is up to the attorney general to come up registrationle

regime in the public interest? you would be defending that? >> justice gorsuch, it would be a much broader delegation under this court's cases, you would need more of a general policy. it's not clear why congress wouldn't apply. >> what's the difference? half a million people are affected by this delegation. >> yes. if congress found there are real practical problems with applying it even going forward, here's our general policy to the attorney general. i don't know that it would be importantly different from saying to the attorney general which drugs will be controlled substances under the act, or which bridges will we think obstruct the rivers, or who will be allowed to graze -- >> can you answer my question, would you be here defending a statute that mimicked d with respect to post-enactment defenders in which case, why does congress bother to legislate at all? >> it's very difficult to know in that situation, justice gorsuch, what the equivalent practical problems would be for why congress didn't apply, 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. it's very difficult to imagine that that statute would pass muster. if there were similar practical problems and if they supplied a general policy, it wouldn't be importantly different from loving or fahey or union bridge. >> well, can you tell me how this retroactivity 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 person gets notice of the registration requirement. >> so he's only required to register if he's a tier 3 offender. if he's got a really grave, sex offense. >> say he was tier 3 but it was 30 years ago. >> yes. i think he's on notice from the enactment of sorna and the attorney general's interim rule

in 2007 carried forward in the final rule in 2010 that there's an across the board registration requirement. >> he has to know what the attorney general's regulation is? there's no notice 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 an as applied due process challenge. of course, petitioner is not going to be able to do that. petitioner was informed in 2012 before he left custody both in writing and orally that he needed to register when he moved to new york, and that he failed to do it. so i take the point there could be as applied notice problems but i don't think there's one here. to get back to the colloquy i was having with justice gorsuch, i do think at the end of the day, this is not a provision that just lays out a general standard and then requires all of the fleshing in.

that, the court has held is permissible provided you supply a general policy. but it really is inside even that, because congress set up a pretty articulated 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 just gone overboard, and i am going to start making exceptions with respect to pre-act offenders. i think that is 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's policy judgments. if the court had any doubt about that it should construe the statute more narrowly in the way i think is the more reasonable interpretation so as 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 the statute and given the language of reynolds.

>> so i don't think the attorney general could say look, i know congress has 3 tiers of registration, planks of 15, 25 years and life, but i'm going to require you to register but only for a few years. it's perfectly feasible. i could require you to register and there would be no problem on the state registries but i just disagree with congress's judgment you ought to register. i don't think the attorney general can do that. >> i'm trying to think of, i think she's trying to make the point 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 all these other agencies because they have other things to do. moreover, there's a safeguard going to 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, it's captured in the word liberty. it is 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 in the interpretation of criminal statutes but the court's considered that argument twice in the nondelegation context and rejected it both times. in toobey it made exactly the same argument, look, you can't delegate to the executive branch

which substances will be controlled under the act because they are both defining wlaps -- what is illegal to possess and prosecuting you. and you said 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, and this court where the executive was actually defining the criminal penalty, not what the executive las donehas done here, -- it is not what the executive has done here, delegations have been upheld where the executive defines by regulation what conduct will be criminal so long as congress has created the criminal offense. >> those are the standards, quite right. i see where you're going there. but what we have been arguing here is basically the nondelegation doctrine informed, perhaps, by the need to prevent vendettas and liberty. suppose you reverse that. suppose you said the problem

here is a due process argument. it is a liberty protecting argument. in interpreting that liberty protecting argument, we should inform our thought with nondelegation principles. >> justice breyer, i just think the nondelegation context is a very odd one in which to try to cash that out as opposed to vagueness or due process, because it's asking whether congress has made the basic policy judgment that can inform the executive's exercise of power. boy, if the executive can define the availability of the death penalty in loving, here it seems wild to say this is a civil -- it seems well within that to say this is a civil requirement, yes, there are criminal penalties that can attach but that's a feature of the law. the irs tells you what kind of tax return you have to file. not filing that tax return is a criminal violation but nobody thinks the irs is defining the scope of the criminal law. they tell 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's not, in those instances, even in toobey, it's exercising fairly refined authority with respect to what activity is covered. here it's just saying, it's not just covered, 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 the scope of the law or it doesn't. >> but 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 ok, 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 an articulated scheme on the civil side, i understand if it hadn't made all of those judgments there could be more serious problems, but to do all of that and then say but look, we know that there's going to be some practical problems, it's 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.

so congress looking at that said look, we've got hundreds of thousands of people out there. we want to bring into this system. we know they can't all come in on day one. there's going to be some transitional issues that we are going to have to work out. and the person to work those out is the person who, for the last 12 years, has been dealing with exactly 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, it really is inside of the fahey because you have an intelligible principle anchored in the text of the statute, not always true in some of those cases like fahey, and you really had what's much closer to a classic executive function because it just specifies the applicability of the requirements themselves. it's not even like the attorney general is providing the substance of those requirements. even then, of course, the court has said ok but, show less text --

>> there's something unusual about the attorney general's presence in this case as the chief prosecutor, kind of a conflict of interest. what if instead of feasibility you were arguing just and reasonable, or in the public interest, other standards that might have applied in a civil delegation context? would you think the attorney general of the united states could decide the applicability of criminal law for half a million people on the basis of his or her judgment about its public interest or whether it's just and reasonable, or would you accept the suggestion of this court in toobey 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 that question of you. >> i want to try to, i think the court has had several cases where criminal penalties were indirectly or directly involved from grimode to loving, it's

never suggested even when faced with this exact argument in toobey that the bar ought to be raised higher. but i will grant that in toobey 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 say to the attorney general register them as reasonable, with no requirements, no creation of the criminal offense, no fixing of a penalty. >> just and reasonable or in the public interest. would those be ok or not ok? >> i think as long as it's done the things it did here. it created, it fixed the penalty and on the civil side, it has said, and you provided some standard like that in the statute, the court's cases indicate that's enough. i do want to say even if you think that's not enough, this statute does come inside of that. because this is not an agency just supplying all of the real content or substance to a broad standard like public interest or

just and reasonable. congress made a lot of those judgments for itself and left to the attorney general a much narrower practical problem. >> there's a lot of discussion in our case law about the propriety of the court reading into statute words. 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're 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's a criminal. and so isn't retroactivity a definition of who's a control? -- of who is a criminal? >> two separate points. >> or who might be a criminal. >> 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 had maximum feasibility in the statute. you are discerning words. >> i am, justice sotomayor. that's my second point. i'm doing exactly what the court did in fahey, loving. in none of those was the intelligible principle spelled

out in the statute in so many words. the court looked at the act as a whole and said based on the provisions we have, would a reasonable executive official understand what policy they were meant to pursue exercising this authority. to be honest with you, i think it defies both the text of sorna and reality to think 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 is no way to read the text, and not come away with the firm and definite notion that congress wanted as many of these offenders in the system as the attorney general could get in. you take out policy statements because there are several of my colleagues who don't rely on either of those two things. what is left? >> i would say the findings in 2091, the statement of expressed pictured, from comprehensive

national system, the inclusive definition of offender, the broad registration requirement and then the text entitled which stated the party was about -- this authority was about addressing the ability to apply. this was a practical consideration of concern by congress by how to get these peoples in the system. all of this together, i think, they are far more anchored in this text of the statute. we look at the thinking industry or the court just earned it. the same thing, i think here, you got a general policy that is anchored in the text of the act. statements that

we have not relied on. >> the part that is still gnawing at me. the argument is, there's a standard here at the end of the game. in writing, i have to think through the non delegation. i'm interested if it strikes in your mind. let's take the securities act. what it says, is you can't use a manipulative device, that's the equivalent here of a offense. it says you cannot use any contravention of such rules as the sec is appropriate in the public interest. supposedly instead of that word sec, everything is the same, if it doesn't say sec, it's the attorney general. what you have 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, we do not expert ons an securities. doesn't matter? should it matter? should we see the opinions that might matter? >> to the extent that it matters, if the executive were to find the elements of the offense punishment, that would lead to the question but where the attorney general or the executive officials defined the civil requirement as the act to which, consequences could be attached. that falls squarely in a handful of cases where it's approved exactly that. i think the court can set aside the case where congress hasn't defined the consent, fix the punishment itself. but let's those things, i would

say a word, before i sit down. so we all understand what is in play. 18 jurisdictions have substantially implemented sorna. states, 26ining 32 of them have taken federal funds and are attempting but are not there yet. if petitioner prevails, i believe, all of their arguments translate, not just from the pre-act clause, but also to the other class. there will be no federal duty to register in the 32 states that have the influence. as a matter of federal law more , than half of the country will be a sex offender free zone. they will not be picking up new pre-act of vendors in contact -- pre-act offenders in contact with the justice system. all told, they will lose a couple of thousand people out of the registries every month and that's not including tribal areas where we wouldn't be able

to get non tribal members. some substantial portion of the 4000 convictions issued, would be in it jeopardy on direct or collateral review. the efficacy if they prevail, would not just be sharply curtailed, it will be gutted. as a matter of how it works and if it's possible, the most natural interpretation to say, the narrow authority to specify the applicability of requirements in a way to get the people in the system. that interpretation, it's constitutional, if we read it to say, do it to the extent you can, then as petitioners see, if it is possible to read it that way, that's constitutional. that's what we would urge the court to do. >> thank you. you have four minutes

remaining. >> thank you. just to pick up were my friend left off. i would to emphasize, prior, every single state had an existing offender registry. they will continue to exist and require this regardless what happens to for her. they will require to register under existing state law. they will still be required to register. this was opposed by the state which is part of the reason why only 18 states have incremented -- have implemented it. states spoke out against the retroactive application of the law before the attorney general made his determination. so states themselves are the experts in this area have been registrations for years want this act to be retroactive. this delegation was all about practicalities, but the reality is, the attorney general his

roles has not accounted for rules for accountability in any way. to the extent, was not, it is not a standard that is this in the text. it is not the intelligible principle that was done by any court to consider this issue. it was not under the intelligible principle that the attorney general himself said he was acting pursuant when he issued his regular nation. -- when he issued his regulation. in his final regulation, he said that congress delegated to him and i quote, the discretion to offenders to the extent that he determines the public benefits doing so outweighs any adverse cost. so the attorney general believes his discretion was to essentially undertake the fundamental policy determination as to whether the cost outweighs the benefit. he did not view this as an issue of feasibility and practicality. finally, i would like to emphasize the special measure of -- special nature of this allegation.

saving, this is not civil role making. this retroactive application of criminal law penalties that affect individual liberty interest in the most profound way. this is the area where the constitution specifies that there must be division tween the between theivision lawmaker and between the executive and for that reason this delegation is unconstitutional. >> thank you, counsel. this case is committed. >> a confirmation hearing on five of president trump's judicial nominees, including the pic for the third circuit court of appeals. robert menendez and cory booker oppose the nomination. he is a former prosecutor who served as deputy chief counsel to former new jersey governor chris christie. live coverage begins at 10:00 a.m. eastern here on c-span. c-span, where history unfold

daily. in 1979, c-span was created as a public service by america's cable television companies, and today we continue to bring you of congress,verage the white house, the supreme policy eventslic and washington, d.c. and around the country. c-span is brought to you by your cable or satellite provider. c-span "washington journal," live every day with policy issues that impact you. this morning, former republican ongressman david mcintosh why he thinks republicans lost the house last tuesday. then washington post writer greg sargent joins us to talk about the midterm election results and his book, "an uncivil war." the upcoming lame-duck congressional session, and gop

house leadership elections. watch "washington journal," live at 7:00 eastern this morning. join the discussion. spearday on "q&a" jackie talks about her memoir, "undaunted." remote airstrip in guyana. and we were ambushed on an airstrip. ryan was shot 45 times and died on the airstrip. one defector of the people's temple died. i was shot five times on the right side of my body. i had a bone jutting out of my right arm, a wound in my leg the size of a football. i am 28 yearsgod,

old, this is it. q&a".nday night on " ruledpreme court unanimously prohibited age disco nation applies to state and local governments. the case centered on firefighters outside of tucson, arizona. the firefighters were laid off at 46 and 54 years old, and filed a complaint, which made its way to the high court. justice ginsburg offered the opinion. this is a little less than an hour. next, the mount lemmon fire district. ms. guido and mr. rosenkranz. >> may it please the court, the ninth court had two