Congress can’t punt its lawmaking responsibility to the attorney general

Congress makes the law; you are innocent until proven guilty; and everyone is entitled to due process of law. These are elementary principles of American government that we all learn in grade school. But they are threatened when Congress gives the U.S. attorney general unilateral power to write the criminal laws his office is charged with enforcing.

It shouldn’t be controversial to say that someone must not go to prison unless he broke a law written by Congress (or a state legislature). But Attorney General Merrick Garland evidently doesn’t see things this way. And, sadly, neither did the Congress that empowered Garland to make up his own criminal code on the fly.

In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires states to keep registries for those convicted of sex offenses. SORNA also makes it a federal crime for an offender to fail to register with his state.

But Congress did not want to wade into the messy details of what constitutes a “sex offense,” or what the registration requirements should be. Instead, Congress told the attorney general to issue rules deciding the “time and manner” of registration, the “information required,” and who must register. 

To understand why this became a problem, consider the new rules that Garland issued last year. According to these rules, anyone who has been convicted of a relevant crime is required to register, even if their conviction was expunged. They must register in person, at least once a year, and provide local police with information that includes their Social Security number, internet usernames, work or school information, any international travel, passport and vehicle registration, and professional licenses.

My client — who shall remain anonymous here — was convicted in 1996 of a misdemeanor offense for inappropriately kissing a 16-year-old when he was 23. He was sentenced to probation and required to register as a sex offender.

He took his offense as a wake-up call. He completed hundreds of hours of therapy, obtained college degrees, and did everything he could to become a productive and valuable member of society. By 2002, his conviction was expunged by the State of California, in part because the registration requirement no longer made sense for someone like him. In 2010, a judge issued a certificate of rehabilitation recognizing my client’s extraordinary turnaround. According to California, not only does he not need to register as a sex offender, but he has no criminal history and is considered to be fully rehabilitated. California won’t let him register because it doesn’t consider him to have a conviction.

That doesn’t matter to the U.S. attorney general. Under Garland’s rules, my client must register once again, and if he doesn’t, he is guilty of a federal crime.

Unbelievably, the attorney general has said that in “situations in which a sex offender has failed to do something SORNA requires because it is impossible for him to do so,” such as in this case, he is presumed guilty. It would be up to him to prove his innocence at trial after being arrested and prosecuted by federal authorities — turning the presumption of innocence and due process upside down.

Those convicted of sex offenses often find little sympathy in society, even with the courts that are supposed to protect their constitutional rights. But we should all be terrified about what the attorney general is attempting to do here.

In Gundy v. United States, a plurality of the Supreme Court upheld a different provision of SORNA over a challenge that the law improperly delegated lawmaking power to the attorney general. But it did so by reading a different statute narrowly — and even then, over the dissent of four justices. Justice Brett Kavanaugh, who joined the court since then, has publicly questioned the wisdom of that decision.

It is time for the courts to settle what was left open in Gundy. Writing for four dissenters, Justice Neil Gorsuch recognized that a delegation that “purports to endow the nation’s chief prosecutor with the power to write his own criminal code … scrambles th[e] design” of the Constitution, which “promises that only the people’s elected representatives may adopt new federal laws restricting liberty.” If we allow the attorney general to write and prosecute whatever he thinks the law should be involving sex offenders, we shouldn’t be surprised when he uses that power against another disfavored target.

In America, Congress makes laws, and everyone is innocent until proven guilty. Or, at least, that’s how it should be.

Caleb Kruckenberg is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. Follow him on Twitter @Kruckenberg_Esq.