Washington — The US supreme court has upheld the federal government's authority under a 2006 law to require thousands of sex offenders to register with authorities in the states where they live, as the justices ruled against a child rapist convicted in Maryland.
In its 5-3 decision the court on Thursday rejected convicted sex offender Herman Gundy’s argument that in passing the law, Congress handed too much power to the US attorney-general in violation of a principal of constitutional law called the nondelegation doctrine. This doctrine forbids Congress from assigning its legislative powers to the federal government’s executive branch.
Justice Brett Kavanaugh, who had not yet joined the court when the case was argued last October, did not participate in the decision.
Gundy was convicted in 2005 in Maryland of raping an 11-year-old girl. After serving seven years in prison, he was arrested in New York in 2012 for failing to register as a sex offender there. He challenged the indictment over the nondelegation question, but his claim was rejected by a district court judge and then in 2017 by the circuit court of appeals in New York.
The law requires anyone convicted of a sex offence to register as a sex offender in any jurisdiction in which they live. But the law did not specify whether the requirement would apply to about 500,000 people already convicted of sex offences when the law was passed.
Instead, Congress said the attorney-general — the top US law enforcement official — should decide, which Gundy’s lawyers argued violates the nondelegation doctrine. Since the law was enacted, different US attorneys-general under Republican and Democratic presidents have interpreted the law, with all saying it does apply retroactively in some fashion.
Even before the law was passed all 50 states had laws requiring registration. The federal law was designed to create a uniform system to be used nationwide that would prevent sex offenders from falling off the radar. As recently as May 2018, only 17 states have fully implemented the federal requirements, according to court papers.