United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the court on defendant Edward Jay
Wass' motion to dismiss his indictment [DE 20]. The
government has responded in opposition, [DE 21], and the
matter is ripe for ruling. For the following reasons,
defendant's motion is GRANTED.
September 7, 1995, defendant was convicted of one count of
Sexual Battery, Custodial Authority, 12 to 18 Years of Age
and one count of Lewd and Lascivious, Child Under 16, in
Escambia County, Florida. He was sentenced to one year of
custody, one year of community control, and seven years of
probation, concurrent on each count. On September 18, 1998,
his probation was revoked and he was sentenced to one year of
custody and fifteen years of probation. He completed his
probation on September 18, 2014. On March 6, 2018, a grand
jury returned an indictment against defendant, alleging that
at least by September 2016, and until February 27, 2018, he
had traveled in interstate commerce without registering under
the Sex Offender Registration and Notification Act, in
violation of 18 U.S.C. § 2250(a). He has now moved to
dismiss his indictment on constitutional grounds.
2006, Congress passed the Adam Walsh Child Protection and
Safety Act, the provisions of which were intended to reduce
sex offenses and crimes against children. Pub. L. 109-248,
Tit. I, 120 Stat. 590. It included the Sex Offender
Registration and Notification Act, abbreviated as SORNA.
SORNA revised the existing sex offender registration system.
Sex offenders--those convicted of any criminal sex offense,
whether state, federal, tribal, local or military-must
register in every jurisdiction where they live, study, or
work. 34 U.S.C. § 20911; 34 U.S.C. § 20913. The Act
established three tiers of seriousness, and tied the length
of time an offender must stay on the registry to the
seriousness of the offense. 34 U.S.C. § 20915. It
created the National Sex Offender Registry, which is managed
by the FBI and compiles all of the individual jurisdictional
registries, and established rules for the states, including
that they themselves criminalize failures to properly
register. 34 U.S.C. § 20921; 34 U.S.C. § 20913.
While all states and the District of Columbia have sex
offender registries, the majority of states are not in full
compliance with SORNA. SORNA was originally codified at 42
U.S.C. § 16901 et seq., and has since been
recodified without any other change at 34 U.S.C. § 20901
did not take a position on what to do with individuals who
had been convicted of a registrable sex offense prior to the
law's passage. Instead, Congress made that responsibility
the Attorney General's. 34 U.S.C. § 20913(d). Until
the Attorney General so articulated, pre-Act offenders were
not required to register. Reynolds v. United States,
565 U.S. 432, 445 (2012). A series of interim, proposed,
final and supplemental guidelines were promulgated over the
next five years. 28 C.F.R. 72.3; 73 Fed. Reg. 38030; 28 C.F.R
§ 72.3; 76 Fed. Reg. 1630, 1639. Today, individuals
convicted of a pre-Act sex offense must register, though they
are credited with the time lived in the community. 75 Fed.
Reg. 81849, 81851.
provision of the Act under which defendant has been
prosecuted, 18 U.S.C. § 2250(a), makes it a federal
felony for sex offenders to travel in interstate commerce if
they are required to register and have not done so. In 2010,
prior to the promulgation of the Final Rule by the Attorney
General, the Supreme Court ruled that § 2250(a) only
applied to sex offenders who traveled in interstate commerce
after the 2006 passage of the law, as the text of the statute
uses the term "travels," not "had
traveled" or "traveled." Carr v. United
States, 560 U.S. 438, 448-49 (2010). The Court
explicitly declined to reach other potential constitutional
questions. See Id. at 444 n. 2.
defendants, like this defendant, whose sex offense predates
the law, but whose travel postdates it, are required to
register and can be federally prosecuted for failing to do
so. This is constitutionally defective in two ways. The first
is that giving the Attorney General the authority to
determine whether pre-Act offenders have to register violates
the nondelegation doctrine and the separation of powers
principle. The second is applying the sex offender
registration scheme to pre-Act offenders violates the Ex Post
Facto Clause of the Constitution. The Court will address each
issue in turn.
does not have the ability to delegate its legislative powers.
U.S. Const. Art I, § 1. ("All legislative Powers
herein granted shall be vested in a Congress of the United
States."); see also Field v. Clark, 143 U.S.
649, 694 (1892). That restriction, however, "does not
prevent Congress from obtaining the assistance of its
coordinate Branches." Mistretta v. United
States, 488 U.S. 361, 372 (1989). As long as Congress
gives enough instruction, it may permissibly delegate power.
J. W. Hampton, Jr. & Co. v. United States, 27
U.S. 394, 306 (1928). That is, the law Congress passes must
include an "intelligible principle" to guide the
person or body to whom the law delegates the power.
Id. at 409. If Congress "clearly delineates the
general policy, the public agency which is to apply it, and
the boundaries of this delegated authority," then it has
not violated its separation-of-powers mandate and the
delegation is appropriate. American Power & Light Co.
v. SEC, 329 U.S. 90, 105 (1946). When a statute provided
no guidance for the exercise of discretion, it was a
violation of the nondelegation doctrine. Panama Refining
Co. v. Ryan, 293 U.S. 388, 417 (1935). So too was a
statute that simply instructed the agency to assure
"fair competition." A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 536-39 (1935).
executive functions, such as foreign policy and the military,
are ready candidates for broad delegation by Congress.
See Loving v. United States, 517 U.S. 748, 772-73
(1996). By contrast, certain areas require more congressional
guidance. Whitman v. Am. Trucking Ass 'ns, 531
U.S. 457, 475 (2001). Regulating liberty, as one of the most
important congressional undertakings, thus merits deeper
congressional involvement. See Kent v. Dulles, 357
U.S. 116, 129 (1958). So does the establishment of criminal
penalties for private conduct. United States v.
Evans, 333 U.S. 483, 486 (1948); Sessions v.
Dimaya, 138 S.Ct. 1204, 1212 (2018). Retroactivity is
disfavored, and so laws that are retroactive must clearly say
so. Bowen v. Georgetown Univ. Hosp, 488 U.S. 204,
208 (1988). Congress may delegate the power to establish
retroactivity, but it must be in "very plain
words." Id; Brimstone R. Co. v. United States,
276 U.S. 104, 122 (1928). Finally, laws that touch on state
sovereignty should contain clear guidance. Gregory v.
Ashcroft, 501 U.S. 452, 464 (1991).
Supreme Court previously held that 34 U.S.C. § 20913(d)
delegated to the Attorney General the blanket authority to
establish registration requirements for pre-Act offenders.
Reynolds v. United States, 565 U.S. 432 (2012). The
question they did not address was whether that authority is a
violation of the nondelegation doctrine, though the dissent
raised it. Id. at 450. (Scalia, J., dissenting)
("Indeed, it 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.").
provision here affects liberty, establishes new criminal
penalties, is retroactive, and impinges on state sovereignty.
It is the exact area in which Congress must speak ...