Opinion analysis: An exercise in statutory construction
on Jan 25, 2012 at 3:50 pm
If Court-watchers are looking for some clue on the constitutional issues around the federal Sex Offender Registration and Notification Act (SORNA), they’ll have to wait. The Court’s ruling this week on SORNA marks the third time in as many years that the Act has reached the Court. Like the earlier cases, this one, Reynolds v. United States, doesn’t touch the constitutional issues brewing in the lower courts. In truth, Reynolds didn’t present any of the larger constitutional issues, and the Court assiduously avoided the one constitutional issue it might have considered. In the end, Reynolds is, and maybe always was, just a narrow case about statutory construction in a rather obscure corner of the SORNA, coming to the Court merely to resolve a deep circuit split.
That obscure corner deals with the Act’s application to sex offenders who were convicted before the Act’s adoption, the so-called “pre-Act” offenders. The Act says that the Attorney General “shall have the authority to specify the applicability of the [registration] requirements” to pre-Act offenders – that is, to say whether pre-Act offenders had to register just like post-Act offenders. Petitioner Billy Joe Reynolds, a pre-Act offender, argued that the Act didn’t apply to him by its own force, and that the phrase “to specify the applicability of” meant that the Act’s registration requirements didn’t kick in until the Attorney General actually acted. (The Attorney General, in fact, did act, by enacting an interim rule that applied the registration requirements to pre-Act offenders, including Reynolds. But Reynolds contested the validity of this interim rule under the Administrative Procedure Act and the nondelegation doctrine. The Court didn’t touch these issues.) The government, on the other hand, argued that the Act applied to pre-Act offenders by its own force, and that the phrase meant that the Attorney General could only exempt pre-Act offenders from the registration requirements. In short, the parties disagreed about whether the phrase “to specify the applicability of” operated against a baseline that required pre-Act offenders to register, or one that didn’t.
The Court agreed with Reynolds. In an opinion by Justice Breyer that was joined by all of the Justices except Justices Scalia and Ginsburg, the Court held that the Act did not apply by its own force to those convicted before the Act was adopted, and that only the Attorney General’s regulations “specify[ing] the applicability” would trigger registration requirements for pre-Act offenders. Justice Breyer explained that a natural reading of four statements from the Act support this conclusion. Statement One says that “[a] sex offender shall register, and keep the registration current.” Statement Two says that an offender must register before finishing his “sentence of imprisonment.” Statement Three requires a sex offender to update his registration within three business days of any change of “name, residence, employment, or student status.” Statement Four says that “[t]he Attorney General shall have the authority to specify the applicability of the requirements . . . to sex offenders convicted before the enactment of” the Act.
Justice Breyer wrote that Statement Four (dealing with a sub-set of all sex offenders, the pre-Act offenders) naturally modifies Statement One (dealing with all sex offenders) and therefore should control the Act’s application to that population. Moreover, Statement Four more naturally grants authority to the Attorney General to apply the Act – that is, to specify its applicability, not its nonapplicability. Justice Breyer illustrated his point by imagining what would happen if the Major League Baseball Players Association and the team owners were to agree that the Commissioner of Baseball “shall have the authority to specify the applicability” of the more stringent minor league drug testing policy to the major leagues; he concluded that “the minor league policy would not apply unless and until the Commissioner so specified.”
Finally, Justice Breyer said that the majority’s reading comports with possible congressional concerns about the Act’s application to pre-Act offenders and allows the Attorney General to work out some of the indeterminacies in the Act (or “fill potential lacunae,” like whether and how pre-Act offenders who have been released from prison must register) so as to diminish uncertainty in the Act’s application to pre-Act offenders. “A ruling from the Attorney General . . . could diminish or eliminate [uncertainties in the Act], thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid.”
If Justice Breyer’s principal, four-part textual approach is straightforward, even syllogistic and rote, his use of congressional purposes is much more interesting. Here, he augments his textual analysis with consideration of possible congressional purposes – not even just actual congressional purposes – based on his reading of the Act and its history. His analysis recalls the highly deferential approach the Court uses in some areas of constitutional law – for example, the rational basis review test under Williamson v. Lee Optical, which allows the Court to consider any conceivable legitimate government end to uphold a legislative act and thus to say (as Justice Breyer did here), “Congress might have intended” a particular result. While the approach is appropriately deferential to a co-equal branch in this way, it is deferential to that branch, the Act, and its purposes as seen through the majority’s eyes. And as Justice Scalia’s dissent reminds us, the majority’s way is not the only way to read the Act or to understand congressional purposes. If this case is at least in part about the Court’s deference to Congress, deference here, it seems, is in the eye of the beholder.
The majority addressed neither the Attorney General’s authority to enact interim regulations or the thorny constitutional issue whether Congress can delegate the authority to activate the Act’s registration requirements. The former issue wasn’t presented, because the Third Circuit did not address it. (Instead, that court held that the Act requires pre-Act offenders to register by its own force, making any regulations superfluous. The Court remanded the case for consideration of the validity of the Attorney General’s interim rule.) But the latter issue might have informed the Court’s analysis of the Act’s language. Here’s why: the Court traditionally interprets statutory language to avoid constitutional problems, but the Act’s delegation to the Attorney General, as interpreted by the majority, at least arguably runs afoul of the nondelegation principle (that Congress can’t delegate standardless authority to executive officials). The omission tells us that the Court wasn’t too concerned about the constitutionality of this broad congressional delegation to the Attorney General to activate this portion of the Act – at least yet. (This issue may come up on remand, when the parties argue whether the Attorney General’s interim rule was valid.)
Justice Scalia, joined by Justice Ginsburg in dissent, argued that the Act required registration of pre-Act offenders by its own force, and that the delegation to the Attorney General only allowed the Attorney General to exempt pre-Act offenders from registration (or, presumably, to otherwise modify down the Act’s registration requirements). Justice Scalia claimed that this was the more natural reading of the Act, with a focus on Justice Breyer’s Statement One, requiring all sex offenders to register. Against that baseline, Justice Scalia contended that Justice Breyer’s baseball illustration was inapt: major league does not already require the more stringent drug testing policy (as the Act, under Statement One, already requires registration), and so the Commissioner’s power, unlike the Attorney General’s power, is necessarily the power to activate, rather than to exempt. (Justice Scalia also dropped a note to say that he disagreed with the majority’s reliance on legislative history. He said it’s not necessary, because the text is clear.) Finally, Justices Scalia and Ginsburg would have counted the nondelegation principle against a power to activate (for reasons described above); Justice Scalia wrote that a power to exempt avoids the constitutional problem and, in any event, is much more consistent with traditional prosecutorial discretion.
Reynolds won this round, but the case is not over. The ruling sends the case back for consideration whether the Attorney General’s interim rule was valid as against his challenge under the Administrative Procedure Act and the nondelegation doctrine. Reynolds needs to win that argument, too, in order to ultimately prevail.