SORNA's Registration Requirements Do Not Apply to Pre-Act Sex Offenders Until AG Validly Specifies That They Do Apply

Reynolds v. United States, No. 10-6549 (U.S. Jan. 23, 2012)

One of the provisions of the Sex Offender Registration and Notification Act gives the Attorney General the authority to specify whether the Act's registration requirements apply to sex offenders whose convictions occurred prior to the effective date of the Act, which was July 27, 2006. The Attorney General promulgated an Interim Rule on February 28, 2007, specifiying that the registration requirements apply to sex offenders with pre-Act convictions. The Attorney General later promulgated additional regulations concerning SORNA.

At issue in Reynolds was "whether the Act requires pre-Act offenders to register before the Attorney General specifies that the Act's registration provisions apply to them." More specifically,

The present case focuses upon the applicability of the Act’s registration requirements to pre-Act offenders during the period between (1) July 27, 2006 (when the Act took effect) and (2) the moment when the Attorney General promulgated a valid rule specifying the registration requirements’ applicability, namely, February 28, 2007 (or a later date if the February 28 specification was invalid).

The Court, per Justice Breyer, held that the Act does not apply to offenders with pre-Act convictions until the Attorney General has validly so specified. I'd go through the reasoning, but it's just a routine matter of statutory interpretation.
 
Justice Scalia, joined by Justice Ginsburg, dissented. In his view, by its own terms the Act applied to offenders with pre-Act convictions as of the Act's effective date, regardless of any action by the Attorney General. But what of the Act's language that appears to put such authority in the AG's hands?

The Act’s statement that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements” to pre-Act sex offenders, §16913(d), is best understood as conferring on the Attorney General an authority to make exceptions to the otherwise applicable registration requirements.

Justice Scalia also added a dash of constitutional avoidance to the mix:

[I]t is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable, and “[i]t is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Construing the Act to give the Attorney General the power to reduce congressionally imposed requirements fits that bill, because such a power is little more than a formalized version of the time honored practice of prosecutorial discretion.

(internal citations omitted).
 
So what does this mean for those of us in the Fifth Circuit? Very little. The Fives already held in United States v. Johnson, 632 F.3d 912 (2011), that the Act "delegates to the Attorney General the decision of whether and how the SORNA registration requirements apply to offenders with pre-enactment convictions." The real fight is over whether the AG's Interim Rule of February 28, 2007, was valid. Defendants have argued that the Interim Rule violated the notice-and-comment provisions of the Administrative Procedures Act, and that giving the Attorney General the power to make the call violates the non-delegation doctrine. Johnson held that the Attorney General did violate the APA in promulgating the Interim Rule, but went on to hold that the error was harmless on the facts and circumstances of the case. And the Fifth Circuit rejected the non-delegation challenge in United States v. Whaley, 577 F.3d 254 (2009). Reynolds himself appears to have made those same arguments in the district court, but the Court did not address or resolve them (presumably because the Third Circuit held that the Act applied to pre-Act offenders as of the date of enactment, and so did not address the validity of the Interim Rule).