good morning honors may it please the court allegro glass house or representing mr mingle your honors under sort of the secretary of defense can choose and see which is what military offenses require registration the secretary of defense then made a list of offenses at his choosing without following any required notice and comment procedures this type of unfettered discretion is prohibited constitutionally and under the administrative procedure are included military defenses but that's defined only as offenses specified by the secretary of defense no other limits are provided it references a public law which actually makes it even broader saying it's not just as a secretary deems appropriate not just as he doesn't exhibit also anything else he deems appropriate for inclusion that's exactly the type of limitless religious discretion that congress cannot supreme court case in which a statute has been found unconstitutional under the non delegation doctrine no your honor it's been honored only in the breach since this is the europe against a certain obstacle with respect to none delegation that's true there are only two cases that have decided that there are definitely supreme court justices likely at least four who are interested in revisiting that rule but what's important here is rules to follow he's told he can specify the offenses and include any that he deems appropriate that's a full stop there's no other limits that are provided for what he can include and what has been chosen to be included in the sexual element of sexual offense no no your honor is part no no the definition of military offenses does not require a sexual element and that that's really the crux of the situation here the definition for the civilian offenses does it requires that nexis not so for military offenses and that's why when the secretary had included indecent language as one specified by the secretary and then other conduct the secretary deems appropriate that catchall can be anything and the secretary has interpreted it that way including indecent language offenses which  the problem and that is even more of a problem when we consider the a p a violation so not only is the secretary not limited by the terms of the statute in practice the secretary has created the list of offenses without going attorney general could do the courts have stated that the limits on the attorney general include things like the attorney general doesn't get to choose the types of offenses that qualify for the attorney general is in deciding who is a sex offender who is going to meet that element of the crime you're trying to generalize the citing things like when should people who are convicted before sore and fall under the statute and that was the limit here we don't have that the secretary of defense is limited by the other parts of the statute that don't don't say that he's so limited and that's how he has exercised his discretion as delegated to do it as he s we think about that part the secretary has unlimited discretion to include anything and if i may moving to the the a p a violation the way the secretary has gone about this without any notic comment means that there's no external limit on what the secretary is doing either the secretary can decide or has as been deciding at his whim which offenses meet the statute and when they should functions which this circuit and every circuit has looked at it has interpreted narrow only only for things that directly affect the military there are no examples like this of a civilian federal criminal statute the examples the government points to show how far afield this is they point to a case after nine hundred and eleven where fingerprinting and deportation proceedings fell under the foreign affairs exception because it so clearly affected diplomatic relationships between the us and foreign countries they point to a case where the military side of the st circuit set a boundary where civilians could not could not travel when they were testing bombs which also seems to clearly meet a military function and then there's one th circuit case where the court says that civilian security guards even ones who are guarding a nuclear  us which offenses apply and when you must register it has nothing to do with whether or not your current armed services member and there are no cases like this one that would expand the military affairs exception to something that was not directly military related there are no examples and this this court has said that that rule must be narrowly construed other circuits ha there is precedent for striking down portions of sor no based on the lack of notice and comment there are a number of circuits that did so for the interim rule passed by the attorney general before the final rule relating to pretty active offenders pacifically because there was no notice and comment this circuit hasn't addressed it but i believe it's four or five circuits that struck down that rule for the lack of notice and comment so when it isn't somehow exempted from that rule and it provides important exception and it's three so this is an exception that is not even is that even relied on by agencies or the government it seems it seems only right and exceedingly rarely and when it is relied on the courts interpret it very narrowly here there's no particular on its face there's no reason why the secretary of defense could not do notice and comment do you do you falls under the a p a so there's not some general arguments that are unprecedented this is nothing wrong with that that's the case right this would be this would be a big deal i don't think it would be a big deal it just hasn't been raised before i don't think it just hasn't come up consists of a department of defense proclamation and but what i would note on that which is very important is that contains a number of regulations having to do with the military court martial system which were not subject to notice and comm and it's important to recognize that because the idea that this is somehow unprecedented it just isn't true what's unprecedented is the suggestion that the secretary of defense needs to follow notice and comment when issuing the rules governing the military justice system and governing the way in which courts martial should be conducted and if you look at the promulgation that contained the list of designated sworn offenses it's an example of how the military does issue regular updates to the way that courts martial function and as far as we can tell does not typically follow notice and there's a very important reason for that because the courts martial system relates directly to and has consequences for military affairs and that is not typically does it ever i'm not aware of cases in which it has we haven't done an exhaustive research into that but certainly the defense in this case has never suggested that there is some precedent for the military following notice and comment when it pertains to the courts martial system and when it pertains to military discipline and i think the reason for that is that this is exactly the sort of thing that's really really in the heartland of that military affairs exception to the administrative p which are prosecuted by a court martial to people who are subject to military jurisdiction i don't know that that's necessarily limited only to active duty service members but it doesn't apply more broadly than that now it is true that in designating those offenses the collateral consequence of that extends beyond the active duty service members time in the military after your discharge you continue to be subject to the soreness system but the same could be said of any number of military offens in fact almost any serious military offense for example carries with it other civil consequences such as the inability to possess a firearm such as certain consequences with voting with respect to many states that don't allow voting by former felons it's well known that military offenses are typically treated as criminal offenses sharing the same collateral consequences as other criminal offenses extending beyond the active duty service members time in the service and yet nonetheless the sector of defense is given a wide body of discretion to implement military justice rules in accordance with that person's unique expertise in governing the military and i just note that chief justice roberts and you are telling us that you know of no situation in which the secretary of the fence has been required to to apply the procedures of the  circumstances involving any criminal issues director of the government is not aware of that there certainly does not appear to be any case law in which any case has suggested that the military affairs exception does not apply to the courts mar system this is applied to two dependents of military personnel for example in bases abroad  your honor that goes beyond my expertise i'm not i don't i don't know if they're subject to the u c i'm js criminal abuse what i mean it eighteen year old all of a sudden gets poked into this  service members position abroad needs to have the ability to implement a courts martial system that preserves military discipline for everybody subject a military jury how does the military function exception apply to dependence  case where the supreme court is considering whether this delegation to the secretary of defense is even a constitutional exercise of congressional authority and you look at what the chief justice roberts said he said that the reason this is proper use of authority under the military affairs doctrine is that a service member will be less likely to violate a relevant military regulation if you knows that having done so he will be required to register as a sex offender years into the future so you have the supreme court justice roberts in his concurring opinion specifically timing this aspect of soreness to the need to have military discipline and then if you read that decision further and chief justice roberts is concurrence further he's really emphasizing the importance of military discipline needs to be reflexive needs to be automatic and the sector of defense needs to know the secretary can impose regulations and expect those to be followed and so it's a much broader ambit of know what i'm saying is that if you just look at the standard that the courts have applied to the military affairs an exception which is that we consider whether a particular thing relates directly to and has clear consequences for a military affair that's the language for example this court used in city of new york versus permanent mission to india that was in reference to the foreign affairs exception but i think the parties agree that it's the same standard the military justice system and the consequences to active duty service members of violating the uniform code of military justice is at the very core of running an effective military military discipline has to be something that the secretary has the ability to implement as the secretary sees fit and so it certainly relates directly one what it says is that a sex offense is a criminal offense that has an element involving a sexual act or sexual contact with another and you look at what the definition of criminal offenses and includes a military offense designated the secretary statutory clause they have to have an element involving a sexual act or sexual content eligible principle to be it's a very clear statutory definition that the delegate he can implement in terms of just looking at which offenses meet that definition so you don't even need to reach the broader delegation that's in five a four to find that at least with respect to the military offensive rate there is very clear statutory guidance to the secretary of defense in determining whether to designate that offense as  it's listed right there in the statute and again the statutory definition of criminal offense explicitly includes military offenses driving by the secretary so there's no real question that on the plain text of the statute that provision tw fifty one is a delegation to the secretary with respect to those types of those that have an element involving a sexual act or sexual contact with another so at least with respect to that i would argue that the secretary of defense did he write only for himself in that case i believe he did but the majority opinion in the case is also rests on the combination of the military regulation clause and the necessary and proper clause and says this is the source of constitutional authority for congress to regulate in this area and so a chief justice roberts is concurrence as i read it is fleshing out sort of why that particular area of authority operates the way that it does with respect to soreness and he's emphasizing i think the importance of congressional power in military regulation and why someone offensive specifically fall within that but i don't think it's inconsistent with the holding of the majority which is trying to accomplish with giving the secretary of defense this authority and he is the one who really delved into that issue nobody has disagreed with his analysis there he was writing i think it wasn't strictly necessary to the result which is perhaps why he wrote that concurring opinion but it explains that the secretary of defense has this authority because of the importance of military discipline and the importance of service members knowing what the consequences will be of violating these particular military personnel we took the stand that  as robert says opinion capital with respect to the issue of the a p a with respect to the issue of the non delegation doctrine first with respect to that st delegation i've described that's in five a one even under the majority minority opinion in gandhi i think that language doesn't have an element involving a sexual act or sexual contact with another pretty clearly circumscribes the secretary's authority and would be a proper delegation under almost that this court is not to anticipate a change in the law by the supreme court if you follow this court's own precedent in gandhi as affirmed by the supreme court and the approach used by the plurality opinion in gandhi in the supreme court itself i think even five a four there's clear intellig principle here if you look at the purpose of the statute the overall context in which this particular delegation operates it's surrounded by other more precise definitions of sex offense that give the secretary guidance as to what to apply and of course the legislative history which makes in the court martial exception because it's a civilian federal criminal law registration requirement it is not part of the court martial system so it is something that happens to people after they have completed their decided that particular offenses under the military law should apply in the civilian context that doesn't exempt it from the notice and comment requirement there's no reason that it should this is not something that you actually this is unbelievable to he had civilian requirements right but this isn't about how import marshal system operates it's not about what a court martial can do within their justice system this is about the civilian criminal law and what military offenses apply in the civilian context and it's something that applies to people often for the rest of their lives or a very long time period well after they are service members this is not something directly related to the military