//  3/4/19  //  Commentary

Several lawsuits were filed promptly after the President’s “emergency” declaration.  Many of the legal claims center around whether, under the relevant statutes & legislative activity related to the border, the declaration of an emergency allows the President to construct the border wall.

But some of the claims may also challenge the statutes that the President relied on to declare an emergency.  50 U.S.C. 1621 (titled “Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation”) provides that:

With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

One of the potential challenges to the President’s emergency declaration is that the statute under which he declared the emergency (50 U.S.C. 1621) is unconstitutional because it unconstitutionally delegates Congress’s legislative powers to the President.

It’s a difficult challenge on which to succeed, to be sure.  The Court has only ever invalidated two statutes as unconstitutional delegations, and both of those cases were decided in 1935.  The Court has also established a very forgiving standard under which most delegations are constitutional--a delegation is constitutional (and does not impermissibly give away Congress’s legislative powers) so long as Congress has laid down an “intelligible principle” to guide other officials’ discretion. The Court has also made clear that basically any standard counts as an intelligible principle.  Thus, Justice Scalia wrote in Whitman v. American Trucking Associations, Inc.:

We have …  upheld the validity of the Public Utility Holding Company Act of 1935, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders.” American Power & Light Co. v. SEC (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that “‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.’” Yakus v. United States (1944). And we have found an “intelligible principle” in various statutes authorizing regulation in the “public interest.” See, e.g., National Broadcasting Co. v. United States (1943) (Federal Communications Commission’s power to regulate airwaves); New York Central Securities Corp. v. United States (1932) (Interstate Commerce Commission’s power to approve railroad consolidations). In short, we have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Mistretta v. United States (1989) (Scalia, J., dissenting).

So how might the NEA be different?  Explaining the two cases in which the Court had struck down statutes that did not contain intelligible principles, Justice Scalia wrote that in one, the statute “provided literally no guidance for the exercise of discretion.”  And there is an argument that the NEA is similar in this respect because the NEA does not offer a definition of a national emergency, or supply any criteria or bases for Presidents to determine if a national emergency exists.

But that still might not mean the statute effects an unconstitutional delegation.  We may have a better sense about how the Supreme Court would think about this issue once the Court releases an opinion in Gundy v. United States.  In Gundy, the Court is addressing a nondelegation challenge to a provision of the Sex Offender Registration and Notification Act, 34 U.S.C. 20913(d).

Section 30913 (which is titled “Registry requirements for sex offenders”) reads:

(a) In general

A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration The sex offender shall initially register—

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply with subsection (b)

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).

(e) State penalty for failure to comply

Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.

The challenge in Gundy rests on the argument that section 30913(d) does not specify on what basis the Attorney General should determine “the applicability of the [registration] requirements … to sex offenders convicted before the enactment of this chapter.”  That is, the provision tells the AG that she has the authority to determine whether offenders convicted before SORNA must register, but does not specify how she should determine that.

And that is arguably similar to the NEA, which tells the President she has the authority to declare a national emergency (which then opens up certain powers to the President), but does not specify how the President should determine whether a national emergency exists.

At oral argument, Justice Kagan was not impressed with the suggestion that SORNA was an unconstitutional delegation just because the statute did not specifically or explicitly in so many words lay out exactly how the AG should determine the applicability of the requirements to persons convicted before SORNA.  

At oral argument in Gundy, Justice Kagan asked the following question:

Well, that gets back to the question that the Chief Justice started with, because it seems that there is some language in the statute that supports the government's reading, that this is a statute that basically says register all pre-Act offenders as far as possible, with some understanding that there are feasibility considerations that may make immediate registration of everybody impossible. So comprehensiveness but moderated with a feasibility understanding. And I think you would point to three things. You would point to the preamble, which talks about a comprehensive national system. I think you would point then to the definition, which says that the term "sex offender" means an individual, any individual, an individual who was convicted of a sex offense. And I think, to get in the idea of feasibility, you might look to the -- the delegation provision itself, which talks about categories of sex offenders who are unable to comply with subsection (b). So both comprehensiveness as moderated by some flexibility -- some -- some feasibility constraint seems in the statute as long as you're taking the statute as a whole.

(The other provisions Justice Kagan was referring to, in addition to section 30913, were section 20901 and 20911.)

Justice Kagan’s point was to look beyond just the particular section that contains the delegation in order to interpret the scope of a statute and any delegation it contains.  She explained:

Well, but when we are thinking about non-delegation, it's essentially a statutory interpretation question, which it seems should be governed by the same rules of statutory interpretation that we use elsewhere. And we never look only to one provision. We look to one provision in a context of other provisions, including purpose provisions.

There may be a similar point to be made about the NEA--that is, perhaps if you look beyond the specific subsection that contains the delegation, then the scope of the delegation contained in the NEA is more clear and lays down an intelligible principle to guide the exercise of the President’s discretion.  The legislative context of the NEA and past practice/use of the statute may add some clarity there, in addition to other provisions within the NEA.

Food for thought, and this may even be a question on the Justice’s minds as they hash out the opinions in Gundy.  Even if the Court invalidates the SORNA provision in Gundy, it doesn't follow that the NEA would necessarily be invalid, since one of the concerns with SORNA was that it delegated authority to the Attorney General (a law enforcement officer) the power to shapre the reach of a criminal law. We will know more by the end of June.







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On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

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Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

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