the case of united states of america versus alan cooper mr siegel please the court my name is dan siegel and i represent the appellant keith allen cooper with the permission of the court to request three minutes  record there are three reasons why this court should imply apply and enhance non delegation standards to sorn first sort of delegates to the attorney general the authority to define an element of  second only congress is supposed to define the element of an offense and third the tension between that principle and the terms of soren or provides the rationale for adopting the higher standard suggested by a duty to register that duty to register has many sabel it's in some cases have to prove that he was in the state for three days in another case the duty might turn on whether he was a resident of the state  duty turns upon the attorney general's decision as to whether or not he's going to count sort of convictions which were entered prior to the passage of the sort of statute so it's not an exaggeration to say that under sort of the attorney general gets to define that element well why why isn't it more appropriately frame that what the attorney general has been given the authority to do is to expand upon the class of potential sort of offenders here by determining who with sex offenses prior to the date of the to register or not raise the reason that i wouldn't take that tack mean i don't see how the how the attorney general is defining a new crime here but rather expanding the group of people who may be libel w case in the to be case the attorney general was given the discretion to do what you're saying at things address never used a particular controlled substance but the supreme court referred to that as the discretion to define criminal con that's why to discuss the higher standard and that's that's an exact quote of the phrase that's in to be and we cited it in our briefs so the question is then is there a principle that provides a rationale for adopting the higher standard which was contemplated but not ruled upon by the supreme court into we've suggested that that principle is the principle that only congress has the authority to create the elements of a crime that's why federal court judges don't have the authority to recognize common law crimes so when the congress creates that kind of delegation without in our opinion an adequate limiting principle they're creating a serious constitutional problem not in civil cases but in criminal cases where the stakes are much higher imprisonment rather well and you are asking for this heightened standard applicable only in criminal cases and that's case that's correct but i'm curious as to where we as an inferior court look are determining just what this heightened standard is i mean clearly to me doesn't give us much it seems to me other than a reference it now a generation has passed since then and what seems to me to be this ghostly specter of meaningfully constrains has been out there and in trial element is of course the the linguistic elements of what they set a constraint that's meaningful the other element is the facts of to be in what was the statute in to be that met the meaningfully constraints that what did it  well first what it did was it put findings of the executive branch the executive branch had to make findings about the drug's potential for abuse and the high potential for the safety concerns and medical use well what constrains the attorney general in making those regulations and in what way is the constraint meaningful there were findings required to be no findings required sort of i'm curious as to why you're not exploring what the principle here is or perhaps another way of asking it is is there a principle at all in the sense most of us understand that word to be that appears a supreme court decision and whitman versus american trucking association which says quote the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred now if congress is conferring the power on administrative agency to create a regulation which may result in a fine maybe a general broad principle standard covers that but if you're conferring the power to in essence create an element of the offense to consent the guy to jail for ten years that's a rationale for being more careful about it for having a higher standard for sa standards to which the sentencing commission is required to it here when they make the sentencing guidelines they have to consider a career offenders for example is one they have to have eighty five percent of this of the maximum sentence for those people nazi statutes method but at a minimum they had findings even if you don't have one and they had factors in this case the congress didn't articulate the factors that the attorney general should consider an articulation the purpose of the statute told the attorney general specifically this is our all this is our purpose should we put this limited group of potential offenders to be liable under the statute it didn't do what to begin which is create potential criminal conduct right because you added these different drugs here the criminal conduct there even specified by congress all that happened was that the attorney general was asked to consider whether it made sense to also had react vendors covered by the criminalized conduct the congress and now well the first response to your question is that the preamble the purpose doesn't specifically direct the attorney general to apply any standard it's a general statement of purpose of the entire overarching statue but i think that and i see deal made a good point on this their argument essentially is that when you're saying this is a statute to control sex offenders by creating national standards to say that we have a principle to it's control sex offenders by creating a national standard doesn't really answer much of a question as to how specifically to apply that and that's very similar to an argument that your honor joe smith made in the reynolds remit so even if you take a position that that rationale that preamble that statement of purpose meets the intelligible principle tests we don't concede that  come to that decision it's difficult to see how there's anything in that that constrains the attorney general and that does so in a meaningful fashion all the heat of the only decision to make it's covered not covered unless i'm talking about any i'll do anything else but to determine whether this group of offenders will be covered by the statute unlike other statutes where the attorney general is not only deciding you know what the conduct is but how how they're going to implement the regulation at is was really just one tiny little this is a huge decision for the people covered by i don't know if you're swept into the class that's got let me let me respectfully challenge that assertion for two reasons first if it was to why you don't see this more as a question of a yes or no question thrown into the lap of the attorney general which isn't a minor question it's a major question and there are no constraints of the law on how that answer how the answer is to be given yes or no ok i mean you would have it be the addition of an element that's that's your major argument that to me sounds like a tougher  road to hoe for you than it would be to simply say you're exposing this whole additional class to criminal liability and attorney general just decide yes or no we're not going to tell you how and somehow i have a sneaking suspicion i know how the attorney general the chief prosecutor in the united states is going to answer that question the reason we say that it's not a yes or no decision in the reynolds decision the supreme court looked at the same statute and they had to speculate about what it was the congress was trying to do and they said and this is nine eighty one of reynolds decision congress might have been concerned about the expense of say congress might have been concerned about ministry to feasibility to the states congress might have considered different treatments of different kind of offend this it jess that the supreme court is contemplating a decision that the attorney general has to parse and perhaps can decide to count all nine or some in between and the point we're making the best basic point is that if you're going to have a criminal statute exposes a person to ten years in jail you should give some guidance to the attorney general on that decision either by the way findings or  to declare that somehow the supreme court having not invoke the four to act since nine hundred thirty two or thirty six or whatever it's been to strike down an act of congress  to in the area of constitutional void and as a as a mechanism for statutory construction and that is very important here are given the supreme court's decision i'm reynolds the supreme court and ronald's have to decide how to interpret this very professional sixteen nine one three d and it did so to decide that the attorney general did indeed have discretion to determine whether and to what degree and what manner practice sanders needed to register under the statute and i called it at  completely that the supreme court has been i don't want to use that word in the ocean but perhaps forgiving is not inaccurate in terms of what they've been willing to accept as appropriate legislated rassmann ship for purposes of and delegation doctrine but how easy would it have been for congress here in the first instance just to say yes or no with respect to how far this reaches back or whether which is  and secondly to provide something i want to hear from the government exactly what it was that congress said in this statute that we are to construe as that suffice as the articulation of an intelligible principle for non delegation your honor or the policy is the only element the public agency to which it's applied clearly m that can take several forms one is as the as the appellant suggests every form of making specific findings it can be pursued for requirements but it can also be a constraint as to the scope of the power and that is where the supreme court question is essentially a yes or no question the possibilities for resolution are limited but that does not at the same time suggest to me a narrow miss when you are opening up the potential of criminal jeopardy to who knows how many people are trying to first of all the government might dispute and i think the supreme court recognized that this isn't just a yes or no question it's one of timing and x it's one of how these individuals would physically register something that would set forth in great detail and both the statute and the regulations and indeed look into what the attorney general in fact did in this case the applicability of pre of this act to practice sanders implicates not only the liability potentially for offenders only who fail to register are important to note is a civil requirement the registration requirement is a civil requirement suggests that congress contemplated that these individuals would register and then ran out and the supreme court stated that there were multiple reasons why congress might have done it this way for one  i'm not sure you directly answered my question which was what is the legislative history suggest was the reason congress didn't res way that the registration was contemplated occurring was that there was a provision for and national registration of offenders which related to their registration upon release from confinement or upon conviction and then if you look further down as the statute goes on very good reason why congress may have structured with this guy is because they set a detailed initial registration procedure of registration procedure for keeping your registration updated upon changes of schooling employment or housing and residence however for those offenders who have been long out of the system such as those additional months experiment three d then that poses an additional logistical hurdle and as the supreme court  ronald's it may have been difficult to contemplate instantaneous right registration of all those individuals in every jurisdiction in this country and so giving that time frame and a process by which those individuals t general policy statement that was laid out in the first section of the statute the boundaries of this delicate authority can be found not just in the provision at issue once examined through d c but in the whole congress in the legislation itself who must register the definition of sex offender and sex offense is lightly and very explicit and for that matter does not constrain registration by timeframe or failure to register of a sex act as a sex offender are all clearly delineated in the statute and that itself those training those constraints go to the essential issue here is to cover your honor it strongly suggests the result and as the government has as we stated earlier the the it is not just a yes no question and it's one where the attorney general had and did in fact make more than just  yes or cover no you're not it's ok if you're covered what is the timing and method of the act registrants i'm confused how does how does strongly suggest the result really help your position here i mean it seems to me if it's strongly suggest it was all then congress ought to make the determination themselves that the real issue in these nine delegation cases is you've given a question to be resolved to an administrative agency and they're going to determine how to resolve that issue you are can you congress are going to give them some guidance as to how to go about reaching a determination perhaps what are important policy considerations to take into account but th the direction the constrain is not suggesting the result i mean that to me is that to me suggest if you're going to suggest result then you just out right to say it in the statute but we honor because it's not just you have to know question first and second of all those guideposts were given congress set out to establish a comprehensive a national registration system for particular purpose and the purpose was to protect the public from a defined class of sex offenders that is a very a very narrow area of regulation with a meth head a very specific method set forth of how to go about doing that but the congress say anything in its delegation or anywhere in the statu what are the important policy considerations for you attorney general to consider as you go about answering this question that we have value your honor i believe that it was to protect the public from this class of sex offenders by establishing a comprehensive scheme in the basic purpose of the statue yes but it but it's beyond that when you look at how and specifically the kind of decisions that congress did make so  court has recognized in the supreme court has recognized that you don't look at the narrow provision or delegation issue you do law to the policy statement if any were to apply the meaningful constrains test first can you identify any factors that  constraints that the delegation be quote to find and limit those are the terms that have been used in those cases and that perhaps goes beyond the intelligible principle tests which just require some boundary of the delicate at authority and in this case your hon registration requirement that isn't forced by a criminal sanction and that is for the very distinct purpose to register those individuals to protect the public from them they are and i  want to point out that i see my time as having sharpened the defense makes much to be on the additional procedural constraints there are in claiming that this statute doesn't reach the type of constraints and to me but to  was less constrained and a very important respect which was that it was the control the temporary scheduling of controlled substances was not subject to the rigors of the a p a requirements which this court applied to this very stat in all questions that needed to be resolved about science about pharmacology with the issues of public health tied in all that that were necessarily wrapped up in that question seems to me to be involved a much more technical question here your honor the schemes and fault and the registration scheme involved having worked with this extensively are very complex in terms of the number of jurisdictions i see my time is are going to move in terms of the number of jurisdictions the varying laws and state laws that have been implemented and the registration and the myriad of registration schemes that have been established so without saying it do you think congress is that what congress had in mind here that they were relying on the attorney general to just term and how best to make this work with all fifty states and the territories of the district of columbia and the technology that would be involved for record keeping so i mean is that really what this was all about your honor i believe that is what it's about and i believe that's what the supreme court so that it was about a mammal but you and i wouldn't have to be believing that if congress actually set that route i and third there was a question from judge shorts regarding how we would apply the meaningfully constrains us attorney to the first point when judge smith asked counsel for the government about how the intelligible principle standard  response and included a reference to the boundaries that were established by the sort of statute in fact there are lots of batteries you can't count cases that are too whole you can't count sex offense convictions as they meet a certain standard but within that universe you have a group of priests or in a sex offenders who otherwise meet those requirements and the disc isn't decision has to be made whether you count all of them or some of them or none of it has to be some stand for that we agree with judge the record that what is essentially happening here is that the attorney general's been given the opportunity to add a new class of people to sort of the way the statute is written you can't count presorted convictions based on the statute alone takes action by the attorney general and that essentially in our opinion is the discretion to define an element of the crime to respond to the question by judge swartz how would you apply the meaning constraints test at a minimum if you would just require something that's a little beyond the intelligible principle standard either what was done in two b which was to require findings on certain points or at a minimum to identify the factors that go into the attorney general's decision and it's not too much to ask the congress to amend the statute to do that measure single in meaningfully constrains standard and enhanced standard still requires an intelligible principle or plural right i mean even if if a court were to craft that heightened standard it builds you have to prove a duty to be has a different components and different kinds of sort of cases sometimes you have to prove residency is the key issue sometimes the amount of time the state is the key issue in this case it's a question of whether or not you count the prior