Alito joins with liberals in ruling for sex offender law

The Supreme Court on Thursday ruled against a convicted sex offender in a decision that deals with how much authority Congress can cede to other branches of the federal government.

The case involved the “nondelegation doctrine,” which states that one branch of government cannot allow another branch to execute its powers, largely Congress not allowing other branches to legislate.


Plaintiff Herman Gundy argued that a sex offender law violated the doctrine because Congress granted discretion on how to enforce the act to the attorney general, rather than having lawmakers make the determination.

But the justices found that the law does not violate the doctrine.

The courts's liberals, Justices Elena KaganElena KaganTo infinity and beyond: What will it take to create a diverse and representative judiciary? Texas, abortion and the tyranny of the shadow docket Senate panel will probe Supreme Court's Texas abortion ruling, 'shadow docket' MORE, Ruth Bader GinsburgRuth Bader GinsburgTo infinity and beyond: What will it take to create a diverse and representative judiciary? Justice Ginsburg's parting gift? Court's ruling on Texas law doesn't threaten Roe — but Democrats' overreaction might MORE, Stephen BreyerStephen BreyerBarrett: Supreme Court 'not comprised of a bunch of partisan hacks' Sunday shows - Manchin says he won't vote for .5 trillion bill Breyer says term limits would 'make life easier for me' MORE and Sonia SotomayorSonia SotomayorWill the DOJ manage to protect our constitutional rights now that the Supreme Court refuses to? Supreme Court trashed its own authority in a rush to gut Roe v Wade Supreme Court's abortion ruling amplifies progressives' call for reform MORE, all signed on to the majority opinion, while conservative Justice Samuel AlitoSamuel AlitoThe Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand Biden rips 'extreme' new Texas abortion law Six-week abortion ban goes into effect in Texas MORE agreed with them in a separate concurring opinion.

Justices Neil GorsuchNeil GorsuchPresident Biden's vaccination plan is constitutional — and necessary Religious exemption to vaccine mandates may be difficult to obtain, as Amish case shows Can Biden defend his vaccine mandate? The 'nondelegation doctrine' may be the challenge MORE and Clarence ThomasClarence ThomasClarence Thomas warns against 'destroying our institutions,' defends the Supreme Court Supreme Court returning to courtroom for arguments The Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand MORE and Chief Justice John Roberts dissented. Justice Brett KavanaughBrett Michael KavanaughRepublicans keep distance from 'Justice for J6' rally Senators denounce protest staged outside home of Justice Kavanaugh Why isn't Harris leading the charge against the Texas abortion law? MORE did not participate.

Gundy was on supervised release from a prior drug conviction when he was convicted in the sexual assault of an 11-year-old girl in Maryland.

After he served his sentence on the sexual assault conviction, he traveled to New York in order to serve a sentence for violating his supervised release, but didn’t register as a sex offender in Maryland or New York.

He was then indicted for failing to register as a sex offender as required under the Sex Offender Registration and Notification Act, a law passed under the Adam Walsh Child Protection and Safety Act, named for the murdered child of “America’s Most Wanted” host John Walsh.

He challenged that law before the Supreme Court.

In the opinion, Kagan wrote that the text of the law “considered alongside its context, purpose, and history, makes clear that the attorney general’s discretion extends only to consideration and addressing feasibility issues.”

And she wrote that, if the attorney general’s authority under this law was unconstitutional “then most of government is unconstitutional – dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

In a separate opinion, Alito also said that he would rule to uphold the law and the doctrine. But he signaled that he would be willing to overturn the doctrine if a majority of the court was on board.

“If a majority of this court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment,” Alito wrote.

“Because I cannot say that the statute lacks a discernible standard that is adequate under the approach this court has taken for many years, I vote to affirm.”

In the dissenting opinion, Gorsuch wrote that unlike Alito, he “would not wait” to rule against the doctrine.

“Working from an understanding of the Constitution at war with its text and history, the plurality reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the attorney general,” Gorsuch wrote. 

“But Justice Alito supplies the fifth vote for today’s judgement and he does not join either the plurality’s constitutional or statutory analysis, indicating instead that he remains willing, in a future case with a full court, to resist these matters.”

The conservative justice warned against allowing other branches of the federal government to effectively legislate.

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

This report was last updated at 1:17 p.m.