The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate criminal sanctions. The plaintiffs in that case argued that regulations of this sort “pose a heightened risk to individual liberty” and therefore require Congress to provide specific guidance, not just an intelligible principle, in its delegations. The Court admitted that its “cases are not entirely clear as to whether more specific guidance is needed.” However, the Court decided to resolve the issue another day. It remains an open question whether Congress must provide “more specific guidance” to administrative agencies that promulgate regulations authorizing criminal penalties.
On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006 (AWA). If a sex offender fails to register when required to do so by the Sex Offender Registration and Notification Act (SORNA), enacted as Title I of the AWA, and then travels in interstate commerce, the individual faces up to ten years imprisonment. For offenders who were convicted prior to the effective date of SORNA and were therefore unable to comply with the initial registration requirements of the Act, Congress, in § 16913(d) of SORNA, delegated authority to the United States Attorney General to specify the applicability of the registration requirements. On February 28, 2007, the Attorney General published an Interim Rule, which provides that the registration requirements of SORNA apply to all sex offenders who have been convicted of an offense which would require registration, even if the conviction for the sex offense was prior to the enactment of SORNA. Many defendants—convicted sex offenders—throughout the country have argued that delegating authority to the Attorney General under SORNA to decide the applicability of registration requirements violates the nondelegation doctrine
Almost every court confronted with this issue has held that Congress’s delegation to the Attorney General does not violate the nondelegation doctrine, although each of these cases was decided under the “intelligible principle” standard. If a court were to apply the “more specific guidance” standard, then it is likely that Congress would be found to have impermissibly delegated legislative power to the Attorney General. Recently, in Reynolds v. United States, Justice Antonin Scalia hinted at this outcome, noting that the delegation in § 16913(d) “sail[s] close to the wind.” In addition, at least one federal magistrate judge has discussed this exact issue.
This Article argues that courts should adopt the “specific guidance” rule for delegations relating to criminal penalties, due to the fact these delegated decisions pose a heightened risk to individual liberties. Part II explains the history and development of the nondelegation doctrine. Part III provides a background of the AWA and SORNA and explores the history of the 2007 interim rule issued by the Attorney General. Part IV examines decisions that address whether Congress’s delegation of rulemaking authority to the Attorney General in SORNA passes constitutional muster under the nondelegation doctrine. Part V discusses other scenarios in which the “specific guidance,” rather than “intelligible principle” standard, might be invoked. Finally, Part VI argues that the “specific guidance” standard should apply in the SORNA context and, by reason of this application, Congress unconstitutionally delegated authority to the Attorney General, in § 16913(d) of SORNA.
Sadik, Reem. "Passing the Torch but Sailing Too Close to the Wind: Congress’s Role in Authorizing Administrative Branches to Promulgate Regulations that Contemplate Criminal Sanctions." Legislation and Policy Brief 6, no. 2 (2014): 295-321.