Sex Offender Registration and Notification Act (SORNA) Survives Renewed Constitutional Challenges

Sex Offender Registration and Notification Act (SORNA) Survives Renewed Constitutional Challenges

Legal Sidebari

Sex Offender Registration and Notification
Act (SORNA) Survives Renewed
Constitutional Challenges
May 19, 2020
Introduction
The U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) in United States v. Wass recently
overturned a district court decision that dismissed on constitutional grounds an indictment for violation of
the Sex Offender Registration and Notification Act (SORNA). The Fourth Circuit concluded that the
district court disregarded binding precedents in finding that the application of SORNA to Wass
undermined the defendant’s nondelegation doctrine and ex post facto violation arguments.
Background
Passed in 2006, SORNA requires individuals with prior qualifying sex offense convictions to register as
sex offenders with each jurisdiction in which they live, work, or go to school. It is a federal crime for sex
offenders to travel in interstate or foreign commerce if they failed to register or to follow the steps
necessary to update registration information. SORNA also authorized the Attorney General to determine
the act’s application to offenders who were convicted of qualifying sex offenses before Congress enacted
SORNA. The Attorney General extended coverage to pre-SORNA offenses in 2011.
In 1995, the defendant in the case, Edward Jay Wass, was convicted of two felony sex offenses in Florida.
Following 2006 passage of SORNA and its application to his Florida convictions by order of the Attorney
General, a federal district court convicted Wass of failing to register as required, and travelling in
interstate commerce.
Constitutional Limitations: Nondelegation Doctrine and
Ex Post Facto Clauses
Under the nondelegation doctrine (discussed in this CRS Report), Congress may not delegate its
legislative powers to another branch of government without guidance on how to use the delegated
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authority. The Constitution’s Ex Post Facto Clause (discussed in this CRS InFocus) denies Congress and
state legislatures the power to retroactively outlaw, or increase the punishment for, prior conduct. Wass
argued, and the district court agreed, that the nondelegation doctrine barred application of SORNA to him
and that the federal Ex Post Facto Clause precluded punishing him anew for his Florida sex offenses.
However, the courts had already resolved these issues.
The Supreme Court in Gundy v United States (discussed in CRS Report R45884) had rejected a
nondelegation doctrine challenge to SORNA. Wass’s contention, that the 4-1-3 Gundy decision had
resulted in no binding precedent, is at odds with the lowest common denominator rule for plurality High
Court opinions, that is, “when a decision of the Court lacks a majority, the opinion of the justices
concurring in the judgment on the narrowest grounds is to be regarded as the Court’s holding.” (For more
on plurality opinions and what happens when five Supreme Court Justices can’t agree, see this CRS Legal
Sidebar.) In Gundy, four members of the Court declared that Congress’s feasibility instruction supplied
the Attorney General with a sufficient guiding standard; a fifth justice, Justice Alito concurred because he
considered the result compatible with the Court’s prior decisions.
As to the ex post facto challenge, in an early state sex offender registration case, the High Court stated
that the Ex Post Facto Clause is grounded in a legislative intent to punish, and reaches an asserted
regulatory or remedial regime only when its features are so draconian as to belie any but a punitive intent.
The Fourth Circuit had already determined that SORNA was “nonpunitive” in purpose and effect for
purposes of the Ex Post Facto Clause.
Wass sought to use the rule of constitutional avoidance (discussed in this CRS Report) as a last attempt.
This too, the Fourth Circuit found unavailing. The rule of constitutional avoidance is a canon of statutory
construction that comes into play when a statute admits to two interpretations – one harmless and the
other fraught with constitutional uncertainty. But the rule applies only in cases of statutory ambiguity, and
the Fourth Circuit believed its earlier cases and those of the Supreme Court dispelled any uncertainty.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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