we'll hear argument first this morning in case seventeen six o six gandhi versus the united states  sometimes lifetime registration requirements on hundreds of thousands of individuals it combines criminal law making and executive power and precisely the way that the constitution was designed to prohibit unconstitutional this delegation can be distinguished from every delegation that has previously been upheld by this court due to a combination of its total lack of standard and the nature and power nature and significance of the delegated power unlike other delegations that this court has approved sorta has no standard to guide the attorney general's exercise of discretion well the government says that they do have a standard and it's  the apply the prohibition or the requirements of the long to the maximum extent feasible you know that language does not appear anywhere in the statutory text nor can it be derived from the sources that the government sites that  that's not correct so one important thing about this case is that every state every state had an existing sex offender registration system prior to sorn as an act meant and those registration systems would remain in effect regardless of whether  sorn existed or not and so for example petitioner was required to register under existing maryland law and so would the vast majority of sex offenders who were also then required to reregister under sworn to these state registration systems had been in existence many of them since the early ninety's but since one thousand nine hundred ninety six every state had its own registration system but they would be it would not come under federal creation system which was the purpose of create none of the examples would be covered by the federal registration requirement as this court held and reynolds the congress left it to the attorney general to determine whether sworn i would apply retroactively at all and so congress declined to make the initial decision as to whether any practice fender should be required to register this was consistent with how congress had approached registration schemes in the past congress had previously an active registration legislation that conditions state funding on requiring certain things from texas offender registries and in each of those prior cases congress had not made the law retroactive and so there's there's nothing strange about congress doing this as the court held and ronald it then gave the attorney general full authority to decide whether the law should be applied retroactively so the initial on off determination but then as well how it should apply which offenders should be included if it should extend all the way back to twenty thirty forty years there was absolutely no requires would that be a violation of the mando division doctrine yes your honor given the subject matter of this delegation congress needs to provide more guidance than something along the lines of in the public interest and what about this the most such rules as are appropriate in the public interest so there there are a few distinctions one is that the f c c obviously is a different body than the attorney general and so this is a point where the courts due process and delegation concerns converge and it's important from the constitution to have a separation between the body that is the regulatory law maker and the body that is the prosecutor only the attorney general safety commission has another one very similar and we're told in one of the briefs that there are three hundred thousand such regulations that may be an exaggeration i don't know so which in fact  been some standard in the delegation provision even if it was what the court might consider to be a broad that era standard here i mean it's not the attorney general it's the congress that defines what crime but none of those very detailed provisions of sort of that congress set forth apply to pretty act offenders the attorney general was given the power both to decide whether the law applied to preamp defenders and how it should apply to th e 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 or preempt 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 the 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 an individual an individual who was convicted of a sex offense and i think to get in the idea of feasibility you might look to read the delegation provision itself which talks about categories of sex offenders who are unable to comply with subsection big so both comprehensiveness as moderated by some flexibility some feasibility constraint seems in the statute as long as you're taking the statute as a whole so there are a few problems with reading it that way to start with the fact that in j w hampton the court emphasized that the intelligible principle had to be clear from the legislative act itself and so to the extent that the court is looking through either print the legislative act itself meaning only from the delegation provision from so from the lead is that a baktun so to start this is the legislative these are all parts of the statute that's right and  panama refining the court rejected the idea that if there was a narrow delegation provision that did not contain any standards that that could then be governed and given content by the general preamble to the act which is exactly the argument that the government is making  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 so we've if you look at justice scalia's justice scalia was a pretty committed textualist if you look at his separate opinion and reynolds he clearly is looking to the purpose provision of this act and sayen it demands comprehensiveness so you are i agree one hundred percent with you that this could be a statutory interpretation issue but we would prevail under that the problem with the government statutory interpretation argument is that the delegation provision here is not ambiguous it gives plenary authority to the attorney general when the court looks to say the statutory context or legislative history things to interpret that statute that's generally when which is that this statute demanded comprehensiveness in the registration of pre act sex offenders in other words both in the majority and in the dissent this was the one point in common that they said this statute was designed for something and this statute did something that it insisted that sex offenders should be read broadly to include any individual who was can victims of a set a set sex offense and that all those people should be registered you know with some feasibility recognition so i'd like to address both comprehensiveness and the definition of sex offender while also noting that of course if congress had actually wanted that construction it would have been very easy for it to simply say that but most of us said it the preemie all wrong every single one of us your honor i don't believe that's what ronald just with respect to because comprehensive is coming up so many times the preamble states that it is  a comprehensive national registration system in the same way that the national gallery is a comprehensive art museum that doesn't mean that it has every painting that has ever been made comprehensive can have different meanings in this context sorta is a forty something provision statute that addresses every aspect of sex offender registration not just who should register but information sharing among jurisdictions the internet design of a website for public registration civil commitment of sex offenders the use of federal law enforcement resources to assist with state registration systems these various provisions comprise the comprehensive national registration system and there's no indication that that general preamble meant that every preamp defender had to be registered there was a house bill that was rejected that was pending at the same time that would have both made it explicitly retroactive and that included a definition of sex offender that for interpretation for the more specific statute toward provision of a more general and specific statutory section dealing with korean that when offenders says an ambiguous the deed any general decides whether how when and who even who so you don't even know if you're going to be subject to this law yes how do people even know who is going to be included in this class until they hear from the attorney general and i i'm having trouble thinking of another delegation which this court has ever allowed the chief prosecutor of the united states to write the criminal all for those he's going to prosecute we say that they cripple laws must be we've just repeated that last term was a bigger than a blank check to the attorney general the united states to determine who he's going to prosecute ye than criminal liability would you make the same argument that would say that would certainly be a much closer case our argument is that that sort o would still be unconstitutional simply because of the total lack of standard even in cases like and b c or american power in light where the court has upheld arguably very broad delegations there has been some standard in the law that even if seemingly broad as written drew upon an existing body of established law so for example in n b c the public interest convenience in the south to be certification for licensing was an established body of law that it was a certification that states had made public service industries since roughly the eight hundred seventy s there's no existing body of so if you compare what we have before us with the statute that says to give authorizes the attorney general to devise a rule to protect public safety feasibility and consideration of individual rights that's th e difference between improper delegation and proper delegation perhaps certain context let's start there certainly the congressional guidance is the difference and this just comes back to the purpose of the test itself intelligible principle test is that it's not a delegation of legislative authority because congress itself has made the key legislative decisions here with respect to practive fender's congress has not made any of the decisions despite the extremely have different requirements for where and when the registration to appear yes i think this is something the court contemplated in ronald where it noted that to our nine one three d the delegation provision essentially gave the attorney general three different spheres of authority he could decide whether the act applied to pretty active offenders whether it applied to pretty implementation offenders and then how it applied to those offenders and the court recognized that he might for example saying the attorney general may waive the requirements of this act when he determines that it's not feasible to apply them yet and the attorney general says you know i don't think it's feasible to apply this to pre op defenders so i waive the act with respect to is that ok so if the acts that this congress determines that they should apply to crack to fender's and then gave the attorney general a limited power to grant exemption something which is basically the opposite of what this as written does that would likely be constitutional particularly if the congress provided some guidance around you know the consequences are the same the consequences are the same with respect to whether or not who's making the decision about whether the criminal law should apply to respectfully the the consequences are not the same in the first instance congress has made the decision and then they have afforded the attorney general a power that is in first if there is guidance provided with respect to the granting of exemptions then and let's say it isn't the attorney general may issue exemptions to this act with respect to particular categories of offenders even even if that would still be much closer to being constitutional because congress has made the initial decision and has afforded the attorney general a power that is something more akin to traditional prosecutorial discretion is not the same but this was the point that justice scalia joined by justice ginsburg made in dissent in reynolds which is that that is much that seems closer to being constitutional because the power that the attorney general has is closer to a traditional clemency or prosecutorial discretion power in this case however the that you just truly worded in the opposite fashion it does not apply of its own force to any pre op defenders and the question of whether it should apply is left to the sole discretion of the attorney general we routinely  limits so why is the reading in the feasibility here so unusual given the three signals that justice kagan previous so there are three reasons one is that that is essentially the interpretation that the court rejected and ronald that that was squarely the government's argument and ronald's in the court said no that's not a possible construction of the statute the second reason is that in the context of the intelligible principle it is essential that congress itself state the intelligible principle the court addressed this an american trucking the whitman where there the agency itself had tried to propose a limit in construction to the  delegation and the court rejected that and said that the imposition of that limiting construction would be the exercise of the constitutional the legislative power itself and so the imposition of that limiting construction would be unconstitutional because it's exercising the legislative power can we go back to mention your third but on the first folded in in reynolds we said that it would be an strange indeed for anyone to imagine that he or she wouldn't that they might have been limitations because of some feasibility difficulties but no one of the magic of the a g would exempt everyone the intelligible principle cannot be the court's speculation about what congress thinks the attorney general might we're speculating from the act it's not speculating that's interpreted so if if if the best interpretation i realize you don't agree with this but i'm posing it as a hypothetical if the best interpretation of the act is the astri's interpretation do you agree that that would not pose a delegation problem no i don't agree and so if my friend uses different formulations of their interpretation sometimes it's to the maximum extent feasible sometimes it's to the extent feasible sometimes to the extent practicable and i would argue that there is there are differences there let's let's call it which is i think consistent with what reynolds said to the maximum extent feasible in other words what the act is telling the a g is go register priya defenders except if you find it in unfeasible again that's that's nowhere in the statute and i understand that you think that but if the statute if if if that is the best interpretation of the statute would it pose a delegation problem that likely would be constitutional if you could read into the statute a command to the attorney general practitioners to the maximum extent feasible although you know as justice rehnquist articulated in industrial union the benzine case there is still a question about what feasibility means and in this context particularly because these are not what this is not a technical fly into area this is not a question of how much air particle at what cost can be taken from the environment this is really the fundamental way of liberty versus security interests the sorts of standard of all the to do interest is the cost of pollution or something but you have to have a strong standard where in fact it's what you said liberty and so on a medium standard perhaps for the f c c i don't i don't know what we do about the  c and there are three hundred thousand approximately maybe there are only two hundred thousand but is that what you're suggesting we ought to do yes no yes  conceding the three hundred though i wouldn't buy that this is this is what the courts that an american trucking be wittman that the amount of guidance required depends on the scope of the delegated power ok so if we're supposed to go through the two hundred thousand or a hundred thousand or whatever they are what are the different categories where it's tough not so tough in your opinion you're out of the question is not a matter of tough first you see what i mean  categories where congress can delegate with n s e c types in one of the standard here in categories where congress has to be more specific what in your opinion are the right categories  the factors about store that are critical include the fact that it contemplates criminal sanctions in to be this court recognized that precedent supported requiring greater guidance for the problem of regulations that contemplate criminal saying that or isn't that all over the place we have confronted delegation challenges to civil regulations whose violation will result in criminal sanctions so i mean there are numerous of those cases but i'll just give you three advantageous like that so these are all places where the delegation is to a civil regulation as it is here but if you violate that regulation that some secretary or attorney general or whatever has written you're going to face criminal sanctions so what's the difference between this case and all those other cases where we said that's you know it's just it's criminal sanctions it's not what matters  perfect example because this is very different than margarine label this is not a question you know you can say that in the states easy to make fun of only on margarine labels but the person who violated that provision was going to go to prison in the same way that the person who violates this provision is going to go to prison it's not making fun your honor it's that there are certain fundamental choices about a statutory scheme that congress itself must make and so congress can say that there needs to be particular packaging and a label and then it can delegate or assign to it an agency the power to does the point i was making is that all of these are civil regulations the delegation is to say you write the we're going to give you some degree of discretion to write the civil regulation understanding that if somebody violates that that person is going to jail your honor may i answer a question and then reserve the remainder of my time just that question is always the nature and significan delegated power and it is perfectly fine for congress to permit agencies to fill in the details or otherwise implement statutes but not to make these sorts of fundamental policy choices and thank you coun walsh mr chief justice and may please the core i want to start this morning we're justices ginsburg and kagan did with the text of the act because i do think it is best interpreted in the way that we have said it starts in the first section this is three a of the appendix  government's brief with findings about existing sex victims and their offenders it then says quote we want a comprehensive national system in quote to address the offenders get broadly defined sex offender and the registration requirement pages five a and eleven a and then it says in the nine thirteen d it says look we know that translating the system that we've just crafted for offenders going forward is going to create some real practical problems for one it's literally impossible for them to comply with the timing requirement unable to comply those are the words in the title and text of nine thirteen d so we are going to give to the attorney general the authority to take this scheme and implement it with respect to recognizing that there are going to be some transitional issues that kind of implementation is a classic executive function which is what statutes give to the executive branch all the time and petitioners conceded i think just now that if the statute is best read in the way i'm positing that it's it's perfectly permissible under this court's case let's take one of the items you just mentioned comprehensive the access that it's got now does it mean that it cover everything it means that it has a scheme that  thinks addresses the waterfront and part of the way it does that is to say we're not going to decide this significant category of cases you'll comprehensive they've told you what's going to happen there and what they've said is the attorney general gets to decide oh it certainly true that congress made certain legislative judgements about what sex offenses would qualify how long people would have to register for they didn't say every offense that relates to sex means you've got to register for a life time that is that is certainly true but once they've defined the bounds of the people they want into the system going forward then they said to the attorney general your job is to get as many of the existing offenders who fall into that universe into the registries as you can recognizing there are going to be some practical barriers you're going to have to comprehensiveness is the chief justice indicated for purposes of pre and ackman offenders was that the attorney general gets to decide and the attorney general could decide to do nothing the government said the attorney general could decide to include some offender and none of the offenders or all of the preannouncement offenders the government said that it could then determine which of the act provisions it wished to in a chinese menu manner apply to these people and it shows general could change his or her mind about all of this at any given time and then fact the attorney general has changed his mind from time to time on these matters so how do you square with what you just told us with the government's prior representation in this case with the attorney general has never changed his or her mind with respect to the registration to for individuals but but to go squarely to the question there have been changes in only with respect to the state's obligation to go out and find offenders with the individual duty o offenders to come forward and present themselves and register but only general holder changed the guidance provided by by the prior turn each other cracked the narrowed the state's obligation to give the states a little more breathing room that's true the individual duty to step forward and register has always been constant but to go to your question i really don't think that reading our brief in reynolds is any inconsistency we came in and said as a statutory matter this says he shall have the authority to specify the pluck ability that clearly means since we know that they want everybody in that we should read that like a waiver provision and to be sure the court disagreed with us on that to the default rule was different but in the process accepted exactly our argument as the premise that the default rule didn't matter because congress wanted everybody into the system and so i think mr everybody was working off of that page and reynolds you were you were briefed and reynolds is very important to me if i read it the way just discourse which does assume his hypothetical that you in fact said it was an on and off button that the that the attorney general could turn and that's the position you took there what is that to the now oh  lack of feasibility no i'm addressing a question that wasn't squarely before the court and runnels it is an on off switch to the attorney general specify the a placebo to the requirements it's pretty narrow language and do it in such a ways to get them as i read it out here that reading to that is pretty obviously yes i mean this falls well inside a number of the delegations that the court has looked at because here it's not as if there is some standard in the statute like public interest or fair and reasonable rate where the executive is really doing the language of d and said well it's up to the attorney general to come up with a comprehensive and feasible registration receipt regime in the public interest you'd be here defending that wouldn't you just of course it would be a much broader delegation under this court's cases you did more of a general policy it's not at all clear why congress wouldn't apply go out why what's the difference half a million people are affected by this delegation yes if congress found there are real practical problems apply with even going forward here's our general policy  attorney general i don't know that it would be importantly different from saying to the attorney general in to be which drugs will be controlled substances on the act or or in union bridge which obstruct which bridges what we think obstruct the rivers or and promote who will be allowed to my question would you be here defending a statute that mimicked the with respect to post and act when offenders and in and in which case why does congress bother to legislate sorn at all it's very difficult to know in that situation justice course which what the equivalent practical problems would be for why congress would might by statute you know i am what i'm saying is i don't know i don't see any practical problems the would have required congress to legislate in that way so it's very difficult to imagine that that statute would pass muster actual activity we're so let's take some money was convicted of a sex offense thirty years that he's had a clean record everything and had first tell me how such was thirty years ago yes so i think he's on notice from the inaction of sauna and then the attorney general's interim rule in two thousand and seven carried forward in the final rule in two thousand and ten that there's an across the board registration requirement that he has to know like the attorney general regulation is it gives no notice given to these people they can be charged with to register you know normally no one ever gave them and notice that they had to register i suppose you could try to bring in as applied due process challenge of course petitioners not going to be able to do that petitioner was informed in two thousand and twelve before he left the b o p s custody both in writing and orally that he needed to register when he moved to new york and then he failed to do it so i take the point that there could be as applied notice problems but i don't think that there's one here and to get back to to the  i was having with justice course which i do think at the end of the day this is not a provision that just lays out a general standard and then requires all of the fleshing in that the court has held is permissible provided you supply a general policy but it really is inside even that because congress set up a pretty ridiculous scheme made a lot of judgments along the way you think that if there were a new attorney general who came in and said you know i think that this registration stuff has just gone overboard and i'm going to start making some exceptions with respect to pre x offenders so i think that's just unfair to penalize them for the rest of their lives could the attorney general do that no we don't think the attorney general could make judgments on the basis other than feasibility and disagree with congress policy judgments and if the court had any doubt about that it should construe the statute more narrowly in the way i think is the most reason motivation so as to avoid the constitution when you say the attorney general would tell me what you think the attorney general cannot do given the language of the statute and given the language of reynolds so i don't think the attorney general could say look i know congress set up three two years with registration plates of fifteen twenty five years in life but i'm going to require you to register but only for a few years but it's perfectly feasible i could require you all to register and there be no problem on the state registries but i just disagree with congress's judgment that you have to you want to register i don't think the attorney general could do that i'm trying to think of i think these bomb girls was trying to make a point that in my mind is something like this that the executive branch has many functions they do all kinds of different things one of the things they do is prosecute people now it's quite different from the i c c and all these other agencies because they have other things to do and moreover there's a safeguard going through the department of justice and there is a particular danger when you combine prosecuting a person with the writing of the law under which you prosecut and the danger is captured in the bill of attainder because it's captured maybe the x was facto clause it's captured in the word liberty and it is that particular danger that means where you have a person whose job is prosecuted be careful especially careful that that person cannot also write the law under which he prosecutes because they are we risk vendetta no i think my interpretation of what she's saying is something like that so what is your response so i do think that plays itself out in certain rules like not deferring to the executive and the to petition criminal statute but the courts consider that argument twice in the nine delegation cont and rejected it both times want to be elite exactly the same argument they said look you can't delegate to the executive branch which substances will be controlled under the act because they're both defining what's illegal to possess and they're prosecuting you and into b you said no not delegation purposes that controls from one branch the other not where the power is allocated within the executive branch and even more to the point in loving there was the availability of the death penalty the president was just specifying aggravating factors nowhere to be found in the statute and this court where you were actually that the exact it was actually defining the criminal penalty is not what the executives down here this court said we've upheld delegations whereby this is a ph seven sixty eight of law you know we've upheld delegations where the executive defines by regulation what conduct w be criminal so long as congress has created the criminal through that those are the standard extraordinary but suppose you protect of the authority i see where you're going there but but what we've been arguing here is basically the non delegation doctrine informed perhaps by the need to prevent vendettas and liberty suppose you reverse that suppose you said the problem here is a due process argument it is a liberty protecting argument and in interpret ing that liberty protecting argument we should inform our thought with non delegation principles just by i just think the non delegation context is a very odd one in which to try to cast doubt as opposed to to vagueness or due process because it's asking whether congress has made the basic policy judgments that can inform the executives exercise of power and boy if the executive can't define the availability of the death penalty and living in mistr here it seems well with inside that to say look this is a civil requirement yes there are criminal penalties that could potentially attach but that's a commonplace feature in the law the i r s tells you what kind of tax return you've got to file now not filing that tax return is a criminal violation but nobody thinks that the i r s is defining the scope of the criminal law though in some sense it is by telling you what the civil requirement is what this is this is different in the sense that the attorney general is deciding what law applies not whether a particular act or particular exercise in commercial activity is covered by an act that certainly applies in a general sense i mean it's not just in those instances law even applied to you well and it seems to me that those that's a substantive difference i don't i don't know mr chief justice i don't know why we would think that specifying whether the drug you're holding is lawful or unlawful whether your bridge has to be taken down whether you can graze on public land whether your rates are unreasonable is different in kind from whether you have to register going forward and report to the government either way the executive branch tells you whether your conduct brings you within the scope of the law or doesn't well put it's the bridges yes i mean the executive branch has to specify what type of bridge needs to be what height or whatever and if it's this or that but there's another it's a different thing when the attorney general says ok here's a law that covers bridges you get to decide whether it governs at all in particular areas i understand if sort of a didn't have the kind of guidance that it had here if it hadn't to find the criminal offense if it hadn't fixed the punishment if it hadn't set o civil side i understand that if it hadn't made all of those judgments there could be more serious problems but to do all of that and then say but look we know that there's going to be some practical problems it's not just the timing the state register sort of requires a lot of things provide your motor vehicle information provide your d n a provide your photos do periodic show ups and there's no dispute i think that the state registries at the time so it was passed were not equipped to do all of that and so congress looking at that said look we've got hundreds of thousands of people out there we want to bring into the system we know they can all come in on day one there's going to be some transitional issues that we're going to have to work out and the person to work those out is the person who for the last twelve years has been dealing with exactly that subject and interacting with the states and at the end of the day that's really much more about implementation than it is about policy judgment i mean here it really is inside of the mode the fate he the outer balance because you've got an intellig of the statute not always true in some of those cases like promote and fahy and you really have what's much closer to a classic executive function because it's just specifying the aplysia of the requirements themselves it's not even like the attorney general is providing the substance of those requirements and even that of course the court has said ok but i just i think i want to develop a little bit what justice breyer was after and is there something unusual about the attorney general's presence in this case is the the prosecutor got a conflict of interest and what if what if instead of feasibility you were arguing just and reasonable or in the public interest other standards that might have applied in a in a civil delegation context would you think that the attorney general united states could decide the flexibility of a criminal law for a half a million people on the basis of his or her judgment about its public interest or whether it's just and reasonable were or would or you accept the the  question and i want i want i want to try to i think the court has had several cases where criminal penalties were indirectly or directly involved from grimm owed to loving mistretta it's never suggested even when faced with this exact argument in to be that the bar ought to be raised higher but i'll grant that in to be the court said it didn't need to address that though it had never done that in any of its previous cases and just say look if this statute did that if it did nothing more than say to the attorney general register them you know as reasonable with no requirements no creation of the criminal offense no fixing of the penalty in just a reasonable or in the public interest would those be ok or not ok i think as as long as it's done the things it did here it's created the crime to define the elements as if it's fixed the penalty and then on the civil side it is said and you provided some standard like that in the statute the court's cases indicate that's enough but i do want to say even if you think that's not enough this statute does come inside of that because this is not an agency just supplying all of the real content or substance to a broad standard like public interest or just unreasonable  cause made a lot of those judgments for itself and left to the attorney general a much narrower practical problem there's a lot of discussion in our case law about the propriety of the court re into statute words and i think a fundamental issue that justice corsets has been aiming at is especially in criminal law is it just to delegate to the attorney general of fundamental decision about who gets covered or doesn't get covered by a statute that seems  like it seems like at the core of what a law is if someone does x x you're covered or you're not and if the congress had said that we probably wouldn't have found the retroactivity problem but what is the essence of non delegation that we don't let the legislature define who is a criminal and so retroactivity a definition of who's criminal so two separate points justice or who might be a criminal because of their two separate points first if congress had given the same authority to the attorney general and not otherwise expressed any intention with respect to how that authority would be exercised i'll grant there's no plain words that had maximum feasibility so in the statutes you are discerning words i am just sort of my own that's my second point i'm doing exactly what the court did and promoed fahy colic loving in none of those was the intelligible principle spelled out in the statute in so many words and the court engage in an interpretive active looked at the act as a whole and said based on the provision we have would a reasonable attorney general understand or reasonable executive fishel understand what policy they were meant to pursue and exercising this authority and i to be honest with you i think it defies both the text of song and reality to think that congress was agnostic about whether hundreds of thousands of people who have committed very serious sex offenses as petitioner has should be required to register i think there's no way to read saunas taxed its legislative history and not come away with the firm and definite of my colleagues who don't rely on either of those two things what's left i would say the findings in two zero nine zero one the statement of express statutory purpose which this court has relied on in cases like n b c in new york central for a comprehensive national system the inclusive definition of sex offender the broad registration requirement and twenty nine thirteen a and then the text and title of one thirteen d would say that this grant of authority was about addressing the inability to comply we know on  face that what spurred this was a practical consideration a concern by congress about how to get these people into the system all of those things taken together i think the total principle here far more anchored in the text of the statute then take a case like fahy were justice jackson for the court looked at the norms of the banking industry or group mode where the court discerned from a number of other statutory provisions that i don't think were as definite as what it faces here loving the same thing colic the same thing i think here you've got an intelligible principle a general policy that really is anchored in the text of the act even apart from legislative history and policy statements all the rest which we we have not we have not relied on and you know very or at that still gnawing at i mean your basic argument is there is a standard here that's the end of the case but in writing it i guess i have to think through the non delegation doctrine so i'm just interested if this strikes any thought in your mind let's take the securities act of thirty four what it says is you can't use a manipulative device that's a fraudulent device that's the equivalent here of the sex that it says you cannot use them in contravention of such rules as the f c c may prescribe as appropriate in the public interest suppose instead of that word s c c everything's the device in violation of such rules as the attorney general finds appropriate the difference being we don't think he's an expert on security issues though the f c c is does that matter should it matter seriously just in the opinion that it might matter to the extent it matters here's what i think you could say in the opinion if the executive official the attorney general were defining the elements of the offense or defining the criminal punishment that would raise the to be question but where the attorney general or the executive official is defining a civil requirement as with the thirty four act to which criminal consequences can possibly attach that falls squarely inside a handful of cases where the  proved exactly that so i think the court can set aside the tougher case than this one where congress hasn't defined the elements of the offense and fixed the punishment itself but left those things to the executive branch i do want to say just a word about the harms here before i sit down so that we we all understand what's in play eighteen jurisdictions have substantially implemented sort of of the remaining thirty two states twenty six of them have taken federal funds and are attempting to substantially implement but they're not there yet if petitioner prevails i believe the petitioners brief don't say that all of their arguments translate not just from the pre act offender clause but also to the pre implementation clause and if that's right there will be no federal duty to register in the thirty two states that haven't substantially implemented as a matter of federal law more than half the country will be a sex offender registration freezone even in the remaining eight hundred states they will not be picking up new pre act offenders who come into contact with the justice system because they'll no longer be a duty to register all told our best estimate is that will lose a couple of thousand people out of the registries every month and that's not even including tribal areas where we wouldn't be able to get non tribal members and of course some substantial portion of the four thousand convictions at issue would be in jeopardy of being vacated either on direct or collateral review so one has efficacy if petitioner prevails will not just be sharply curtailed it will arguably be thoroughly gutted as a matter of how this federal law works and if it is possible and we think it is not just possible but the most natural interpretation of the attorney general's darty to say this is a narrow authority to specify the a political body of requirements in an off way in order to get people into the system and that interpretation of voids constitutional problems right it's constitutional if we read it to say do it as to the extent you can then as petitioner concedes i think if that's a part if it's possible to read the statute that way that's constitutional and that's what we would urge the court to do if there are no further questions thank you mr walsh was bombed or tell you have four minutes remaining thank you just to pick up where my friend left off i want to emphasize that prior to song as an act meant every single state had an existing sex offender registry and those will continue to exist and to require the registration of offenders regardless of what happen and individuals like petitioner were required to register under existing state law and they will still be required to register this was a law whose retroactive application was opposed by the states which is part of the reason why only eighteen states have implemented it states spoke out against the retroactive application of the law before the attorney general made his determination and so states themselves who are the experts in this area having run registration systems for years don't want this to be fully retroactive my friend emphasize that this delegation was all about practicality but the reality is that the attorney general's promulgated rule does not account for practicality in any way which is further evidence for this court that to the extent feasible was not the standard of this delegation that is not the standard that exists in the text it is not the intelligible principle that was found by any circuit court to consider this issue and it was not even the intelligible principle that the attorney general himself said that he was acting pursuant to when he issued his regulation in his final regulation he said that congress delegated to him and i quote the discretion to applies for his requirements to sex offenders to the extent that he determines that the public benefits of doing so outweigh any adverse costs so the attorney general believes that his discretion was to essentially undertake the fundamental policy determination as to whether the cost that with the benefits he did not view this as an issue of usability or practicality finally i'd just like to emphasize the special nature of this delegation this is not licensing this is not civil rule making this is the rhetoric retroactive application of criminal law penalties that affect individual liberty interests in the most profound way this is the area where the constitution specifies that there must be a division between the law maker and between the executive and for that reason the stella gaijin is unconstitutional thank you thank you counsel the case was submitted