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Party Like It's 1935?

Matthew Cavedon and Jonathan Skrmetti have this article in the Federalist Society Review on Gundy v. United States, being argued today. They note that it is remarkable that the Supreme Court has taken a case on the delegation doctrine. That is a doctrine of constitutional law that was front and center in the epic battle between FDR and the Supreme Court during the Great Depression but has barely shown its face since.

I would add that it is even more remarkable that this doctrine comes up in a criminal case. Historically it has come up in commercial regulation cases. It seems that when Congress passed the Sex Offender Notification and Registration Act (SORNA) it completely punted the thorny retroactivity issues to the Attorney General. Can they do that?

Why did the Court take it up? Does it really want to breathe new life into this musty doctrine? One factor that may have motivated the Court is the same one that weighed in the balance here at CJLF in our decision not to file in this case: Gundy really got shafted here.

However bad Gundy's prior offenses might have been, he has served his time for them. Now he gets a new conviction for failure to register under circumstances where a regular Joe would have believed he was doing everything the law required. See the article for details. Fortunately, he is not facing additional prison time; he was sentenced to time served and supervised release, but even so it does not seem right.
Hopefully this will not be a hard case that makes bad law. If the Court does find a delegation doctrine violation here, I hope it will express the rule in terms that do not let lower courts run wild with it.

A particularly absurd application of the doctrine has been tried in capital cases. The argument is that legislatures cannot just specify a method of execution and leave the details of implementation to the executive, as the legislature in every jurisdiction with the death penalty has throughout history, or at least nearly every. The Supreme Court of Arkansas actually bought that argument, but it has been universally rejected elsewhere.

There is presently a case with this issue in California. The ACLU court-shopped it to Alameda County (Oakland), no doubt on the theory that if you can't win it there you can't win it anywhere. They didn't win it there. It's on appeal to the Court of Appeal, First District, A151732, which doesn't seem to be in any hurry to decide it.


Do the terms of any ruling in Gundy concerning FEDERAL delegations that are allowed or not allowed necessarily define the rules for STATE delegations?

I realize that Gundy (like all SCOTUS rulings) on federal constitutional law will have echo effects on state constitutional law even if not binding. But it seems a state court could (and should) be governed by a state's own distinct delegation jurisprudence rather than any (new?) federal rule.

Does this make sense or am I missing something?

No, and perfect sense.

The persuasive effect of a SCOTUS ruling in a state constitutional case varies. California's equal protection clause is at one end of the spectrum. It was expressly intended as a copy of the Fourteenth Amendment's, and I can't think offhand of a single case where Cal. Supreme has departed from the SCOTUS interpretation of the 14A.

At the other end are the "unitary executive" issues. Few, if any, states have unitary executives. POTUS appoints the AG and US Attorneys, and their authority is delegated from him, but the people elect most state AGs and local prosecutors.

The legislative/executive division is pretty much the same at the state and federal levels, so I would think that a SCOTUS ruling on delegation would have considerable persuasive weight in most states, though not binding.

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