(Slip Opinion) OCTOBER TERM, 2018 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

GUNDY v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT 

No. 17–6086. Argued October 2, 2018—Decided June 20, 2019 

Congress has sought, for the past quarter century, to combat sex crimes 

and crimes against children through sex-offender registration 

schemes. The Sex Offender Registration and Notification Act (SORNA) 

makes more “uniform and effective” the prior “patchwork” of registration systems. Reynolds v. United States, 565 U. S. 432, 435. To 

that end, it requires a broader range of sex offenders to register and

backs up those requirements with criminal penalties. Section 20913 

elaborates the “[i]nitial registration” requirements for sex offenders. 

34 U. S. C. §§20913(b), (d). Subsection (b) sets out the general rule: 

An offender must register “before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement.” §20913(b). Subsection (d) addresses the “[i]nitial registration of sex offenders unable to comply with subsection (b).” The 

provision states that, for individuals convicted of a sex offense before 

SORNA’s enactment (“pre-Act offenders”), the Attorney General

“shall have the authority” to “specify the applicability” of SORNA’s 

registration requirements and “to prescribe rules for [their] registration.” §20913(d). Under that delegated authority, the Attorney General issued a rule specifying that SORNA’s registration requirements 

apply in full to pre-Act offenders. Petitioner Herman Gundy, a preAct offender, was convicted of failing to register. Both the District 

Court and the Second Circuit rejected his claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA’s registration 

requirements to pre-Act offenders. 

Held: The judgment is affirmed. 

695 Fed. Appx. 639, affirmed. 
 

 

 

 

 

2 GUNDY v. UNITED STATES 

Syllabus 

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and 

JUSTICE SOTOMAYOR, concluded that §20913(d) does not violate the 

nondelegation doctrine. Pp. 4–18. 

(a) Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United 

States.” §1. Based on that provision, this Court explained early on 

that Congress may not transfer to another branch “powers which are 

strictly and exclusively legislative.” Wayman v. Southard, 10 Wheat. 

1, 42–43. But Congress may confer substantial discretion on executive agencies to implement and enforce the laws. Accordingly, the 

Court has held, time and time again, that a statutory delegation is 

constitutional as long as Congress “ ‘lay[s] down by legislative act an 

intelligible principle to which the person or body authorized to [exercise that authority] is directed to conform.’ ” Mistretta v. United 

States, 488 U. S. 361, 372. Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation. Only after a court has determined a challenged statute’s

meaning can it decide whether the law sufficiently guides executive 

discretion to accord with Article I. Pp. 4–6. 

(b) This Court has already interpreted §20913(d) to require the Attorney General to apply SORNA to all pre-Act offenders as soon as 

feasible. In Reynolds v. United States, 565 U. S. 432, the Court held 

that SORNA’s registration requirements did not apply of their own 

force to pre-Act offenders. But in doing so, it made clear how far 

SORNA limited the Attorney General’s authority and thereby effectively resolved this case. The Court started from the premise that 

Congress meant for SORNA’s registration requirements to apply to 

pre-Act offenders, based on the Act’s statutory purpose, its definition 

of sex offender, and its history. But the Court found that Congress 

had conditioned pre-Act offenders’ duty to register on a prior ruling

from the Attorney General because “instantaneous registration” of

pre-Act offenders “might not prove feasible.” Id., at 440–441. SORNA, 

the majority explained, created a “practical problem[ ]” because

it would require “newly registering or reregistering a large number of

pre-Act offenders.” Id., at 440. In addition, many pre-Act offenders 

were already out of prison and could not comply with the requirement that they register before completing their sentences. Congress 

therefore “[a]sk[ed] the Department of Justice, charged with responsibility for implementation, to examine [the issues] and to apply the 

new registration requirements accordingly.” Id., at 441. On that understanding, the Attorney General’s role under §20913(d) was important but limited: It was to apply SORNA to pre-Act offenders as 

soon as he thought it feasible to do so. Pp. 6–10.

(c) Gundy claims that §20913(d) empowers the Attorney General to 
 

 

 

 

 

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Syllabus 

do whatever he wants as to pre-Act offenders, including exempting 

them from registration forever. He bases that argument on the first 

half of §20913(d), isolated from everything else. But this Court has 

long refused to construe words “in a vacuum,” as Gundy attempts. 

Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809. Rather, the 

Court interprets statutory provisions—including delegations—by

reading the text in “context” and in light of the statutory “purpose.” 

National Broadcasting Co. v. United States, 319 U. S. 190, 214, 216. 

Applying that approach here, it is clear that §20913(d) requires the 

Attorney General to register pre-Act offenders as soon as feasible. In 

SORNA’s statement of purpose, Congress announced that “to protect 

the public,” it was “establish[ing] a comprehensive national system 

for the registration” of “sex offenders.” §20901. The term “comprehensive” means “all-encompassing” or “sweeping.” That description 

could not fit the system SORNA created if the Attorney General could 

decline, for any reason or no reason at all, to apply SORNA to all preAct offenders. The Act’s definition of “sex offender” makes the same 

point. Under that definition, a “sex offender” is “an individual who 

was convicted of a sex offense.” §20911(1). Congress’s use of the past 

tense shows that SORNA was not merely forward-looking and confirms that the delegation allows only temporary exclusions. The Act’s 

legislative history backs that all up, by showing that the need to register pre-Act offenders was front and center in Congress’s thinking.

The text and title of §20913(d) then pinpoint one of the practical 

problems discussed above: At the moment of SORNA’s enactment, 

many pre-Act offenders were “unable to comply” with the Act’s initial

registration requirements. §20913(d). In identifying that issue, 

§20913(d) itself reveals the nature of the delegation to the Attorney 

General. It was to give him the time needed (if any) to address the

various implementation issues involved in getting pre-Act offenders 

into the registration system. Thus, contrary to Gundy, “specify the 

applicability” does not mean “specify whether to apply SORNA” to 

pre-Act offenders at all. The phrase instead means “specify how to 

apply SORNA” to pre-Act offenders if transitional difficulties require

some delay. And no Attorney General has used §20913(d) in any 

more expansive way. Pp. 10–15.

(d) Section 20913(d)’s delegation therefore falls well within constitutional bounds. As noted, a delegation is constitutional so long as 

Congress sets out an intelligible principle to guide the delegee’s exercise of authority. The standards for that principle are not demanding. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 

474–475. Only twice in this country’s history has the Court found a 

delegation excessive, in each case because “Congress had failed to articulate any policy or standard” to confine discretion. Mistretta, 488 
 

 

 

 

4 GUNDY v. UNITED STATES 

Syllabus 

U. S., at 373, n. 3; see A. L. A. Schechter Poultry Corp. v. United 

States, 295 U. S. 495; Panama Refining Co. v. Ryan, 293 U. S. 388. 

By contrast, the Court has over and over upheld even very broad delegations. See, e.g., National Broadcasting Co. v. United States, 319 

U. S. 190. In that context, the delegation in SORNA easily passes 

muster. The authority §20913(d) confers, as compared to the delegations the Court has upheld in the past, is distinctly small bore. Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need 

to give discretion to executive officials to implement its programs.

Pp. 15–18. 

JUSTICE ALITO concluded that he cannot say that the statute at issue lacks an adequately discernable standard under the nondelegation approach the Court has taken for the past 84 years, but would 

reconsider that approach in an appropriate case. P. 1.

 KAGAN, J., announced the judgment of the Court and delivered an 

opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

ALITO, J., filed an opinion concurring in the judgment. GORSUCH, J., 

filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., 

joined. KAVANAUGH, J., took no part in the consideration or decision of 

the case. 
 

 

 

 

Opinion of the Court 

_________________ 

_________________ 

Cite as: 588 U. S. ____ (2019) 1 

Opinion of KAGAN, J. 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 17–6086 

HERMAN AVERY GUNDY, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 20, 2019] 

JUSTICE KAGAN announced the judgment of the Court

and delivered an opinion, in which JUSTICE GINSBURG, 

JUSTICE BREYER, and JUSTICE SOTOMAYOR join. 

The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U. S. C.

§20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. 

We hold it does not. Under §20913(d), the Attorney General must apply SORNA’s registration requirements as

soon as feasible to offenders convicted before the statute’s 

enactment. That delegation easily passes constitutional 

muster. 

I 

Congress has sought, for the past quarter century, to

combat sex crimes and crimes against children through

sex-offender registration schemes. In 1994, Congress first 

conditioned certain federal funds on States’ adoption of 

registration laws meeting prescribed minimum standards.

See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, §170101, 108 
 

 

 

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2 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

Stat. 2038, 42 U. S. C. §14071 et seq. (1994 ed.). Two 

years later, Congress strengthened those standards, most

notably by insisting that States inform local communities

of registrants’ addresses. See Megan’s Law, §2, 110 Stat.

1345, note following 42 U. S. C. §13701 (1994 ed., Supp. 

II). By that time, every State and the District of Columbia

had enacted a sex-offender registration law. But the state 

statutes varied along many dimensions, and Congress

came to realize that their “loopholes and deficiencies” had

allowed over 100,000 sex offenders (about 20% of the total) 

to escape registration. See H. R. Rep. No. 109–218, pt. 1,

pp. 20, 23–24, 26 (2005) (referring to those sex offenders

as “missing” or “lost”). In 2006, to address those failings,

Congress enacted SORNA. See 120 Stat. 590, 34 U. S. C. 

§20901 et seq. 

SORNA makes “more uniform and effective” the prior 

“patchwork” of sex-offender registration systems. Reynolds v. United States, 565 U. S. 432, 435 (2012). The Act’s 

express “purpose” is “to protect the public from sex offenders and offenders against children” by “establish[ing] a 

comprehensive national system for [their] registration.”

§20901. To that end, SORNA covers more sex offenders, 

and imposes more onerous registration requirements, than 

most States had before. The Act also backs up those 

requirements with new criminal penalties. Any person 

required to register under SORNA who knowingly fails to 

do so (and who travels in interstate commerce) may be

imprisoned for up to ten years. See 18 U. S. C. §2250(a).

The basic registration scheme works as follows. A “sex 

offender” is defined as “an individual who was convicted 

of” specified criminal offenses: all offenses “involving a

sexual act or sexual contact” and additional offenses 

“against a minor.” 34 U. S. C. §§20911(1), (5)(A), (7). Such 

an individual must register—provide his name, address, 

and certain other information—in every State where he

resides, works, or studies. See §§20913(a), 20914. And he 
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Opinion of KAGAN, J. 

must keep the registration current, and periodically report

in person to a law enforcement office, for a period of between fifteen years and life (depending on the severity of

his crime and his history of recidivism). See §§20915, 

20918. 

Section 20913—the disputed provision here—elaborates

the “[i]nitial registration” requirements for sex offenders. 

§§20913(b), (d). Subsection (b) sets out the general rule: 

An offender must register “before completing a sentence of 

imprisonment with respect to the offense giving rise to the

registration requirement” (or, if the offender is not sentenced to prison, “not later than [three] business days

after being sentenced”). Two provisions down, subsection

(d) addresses (in its title’s words) the “[i]nitial registration

of sex offenders unable to comply with subsection (b).” 

The provision states: 

“The Attorney General shall have the authority to

specify the applicability of the requirements of this 

subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for 

the registration of any such sex offenders and for 

other categories of sex offenders who are unable to

comply with subsection (b).” 

Subsection (d), in other words, focuses on individuals 

convicted of a sex offense before SORNA’s enactment—a 

group we will call pre-Act offenders. Many of these individuals were unregistered at the time of SORNA’s enactment, either because pre-existing law did not cover them

or because they had successfully evaded that law (so were 

“lost” to the system). See supra, at 2. And of those potential new registrants, many or most could not comply with

subsection (b)’s registration rule because they had already

completed their prison sentences. For the entire group of 

pre-Act offenders, once again, the Attorney General “shall 

have the authority” to “specify the applicability” of 
 

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4 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

SORNA’s registration requirements and “to prescribe 

rules for [their] registration.” 

Under that delegated authority, the Attorney General

issued an interim rule in February 2007, specifying that

SORNA’s registration requirements apply in full to “sex 

offenders convicted of the offense for which registration is

required prior to the enactment of that Act.” 72 Fed. Reg. 

8897. The final rule, issued in December 2010, reiterated 

that SORNA applies to all pre-Act offenders. 75 Fed. Reg.

81850. That rule has remained the same to this day. 

Petitioner Herman Gundy is a pre-Act offender. The 

year before SORNA’s enactment, he pleaded guilty under

Maryland law for sexually assaulting a minor. After his 

release from prison in 2012, Gundy came to live in New 

York. But he never registered there as a sex offender. A 

few years later, he was convicted for failing to register, in 

violation of §2250. He argued below (among other things) 

that Congress unconstitutionally delegated legislative

power when it authorized the Attorney General to “specify

the applicability” of SORNA’s registration requirements to 

pre-Act offenders. §20913(d). The District Court and 

Court of Appeals for the Second Circuit rejected that

claim, see 695 Fed. Appx. 639 (2017), as had every other 

court (including eleven Courts of Appeals) to consider the 

issue. We nonetheless granted certiorari. 583 U. S. __ 

(2018). Today, we join the consensus and affirm. 

II 

Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress 

of the United States.” §1. Accompanying that assignment 

of power to Congress is a bar on its further delegation.

Congress, this Court explained early on, may not transfer

to another branch “powers which are strictly and exclusively legislative.” Wayman v. Southard, 10 Wheat. 1, 42– 

43 (1825). But the Constitution does not “deny[] to the 
 

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Opinion of KAGAN, J. 

Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s].” Yakus v. 

United States, 321 U. S. 414, 425 (1944) (internal quotation marks omitted). Congress may “obtain[] the assistance of its coordinate Branches”—and in particular, may 

confer substantial discretion on executive agencies to

implement and enforce the laws. Mistretta v. United 

States, 488 U. S. 361, 372 (1989). “[I]n our increasingly 

complex society, replete with ever changing and more

technical problems,” this Court has understood that “Congress simply cannot do its job absent an ability to delegate 

power under broad general directives.” Ibid. So we have 

held, time and again, that a statutory delegation is constitutional as long as Congress “lay[s] down by legislative act 

an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to

conform.” Ibid. (quoting J. W. Hampton, Jr., & Co. v. 

United States, 276 U. S. 394, 409 (1928); brackets in 

original).

Given that standard, a nondelegation inquiry always

begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has 

supplied an intelligible principle to guide the delegee’s use 

of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and 

what instructions it provides. See, e.g., Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001) (construing the text of a delegation to place constitutionally 

adequate “limits on the EPA’s discretion”); American 

Power & Light Co. v. SEC, 329 U. S. 90, 104–105 (1946) 

(interpreting a statutory delegation, in light of its “purpose[,] factual background[, and] context,” to provide 

sufficiently “definite” standards). Only after a court has 

determined a challenged statute’s meaning can it decide 

whether the law sufficiently guides executive discretion to 

accord with Article I. And indeed, once a court interprets 
 

 

Opinion of Kagan, J.

6 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

the statute, it may find that the constitutional question all 

but answers itself. 

That is the case here, because §20913(d) does not give

the Attorney General anything like the “unguided” and

“unchecked” authority that Gundy says. Brief for Petitioner 37, 45. The provision, in Gundy’s view, “grants the

Attorney General plenary power to determine SORNA’s 

applicability to pre-Act offenders—to require them to 

register, or not, as she sees fit, and to change her policy for 

any reason and at any time.” Id., at 42. If that were so, 

we would face a nondelegation question. But it is not. 

This Court has already interpreted §20913(d) to say something different—to require the Attorney General to apply

SORNA to all pre-Act offenders as soon as feasible. See 

Reynolds, 565 U. S., at 442–443. And revisiting that issue

yet more fully today, we reach the same conclusion. The 

text, considered alongside its context, purpose, and history, 

makes clear that the Attorney General’s discretion 

extends only to considering and addressing feasibility 

issues. Given that statutory meaning, Gundy’s constitutional claim must fail. Section 20913(d)’s delegation falls

well within permissible bounds. 

A 

This is not the first time this Court has had to interpret 

§20913(d). In Reynolds, the Court considered whether 

SORNA’s registration requirements applied of their own

force to pre-Act offenders or instead applied only once the 

Attorney General said they did. We read the statute as 

adopting the latter approach. But even as we did so, we 

made clear how far SORNA limited the Attorney General’s

authority. And in that way, we effectively resolved the

case now before us.

 Everything in Reynolds started from the premise that 

Congress meant for SORNA’s registration requirements to 

apply to pre-Act offenders. The majority recounted 
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Opinion of KAGAN, J. 

SORNA’s “basic statutory purpose,” found in its text, as 

follows: “the ‘establish[ment of] a comprehensive national

system for the registration of [sex] offenders’ that includes 

offenders who committed their offenses before the Act 

became law.” 565 U. S., at 442 (quoting §20901; emphasis

and alterations in original; citation omitted). That purpose, the majority further noted, informed SORNA’s 

“broad[]” definition of “sex offender,” which “include[s] any 

‘individual who was convicted of a sex offense.’” Id., at 

442 (quoting §20911(1); emphasis added). And those two 

provisions were at one with “[t]he Act’s history.” Id., at 

442. Quoting statements from both the House and the

Senate about the sex offenders then “lost” to the system, 

Reynolds explained that the Act’s “supporters placed

considerable importance upon the registration of pre-Act

offenders.” Ibid. In recognizing all this, the majority 

(temporarily) bonded with the dissenting Justices, who

found it obvious that SORNA was “meant to cover pre-Act 

offenders.” Id., at 448 (Scalia, J., dissenting). And indeed, 

the dissent emphasized that common ground, remarking 

that “the Court acknowledges” and “rightly believes” that

registration of pre-Act offenders was “what the statute

sought to achieve.” Id., at 448–449.1 

But if that was so, why had Congress (as the majority

held) conditioned the pre-Act offenders’ duty to register on 

a prior “ruling from the Attorney General”? Id., at 441. 

The majority had a simple answer: “[I]nstantaneous registration” of pre-Act offenders “might not prove feasible,” or 

—————— 

1As to that point, the dissent criticized the majority only for basing

its view in part on legislative history. 565 U. S., at 448, n. (opinion of 

Scalia, J.). The dissent found the majority’s excursion into history 

“quite superfluous” given that the “text of the Act itself makes clear 

that Congress sought” to ensure the registration of all pre-Act offenders. Ibid. In reaching that conclusion, the dissent relied on the Act’s 

express statement of purpose and its “sex offender” definition. See 

infra, at 11–13. 
 

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8 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

“[a]t least Congress might well have so thought.” Id., at 

440–441, 443. Here, the majority explained that SORNA’s

requirements diverged from prior state law. See id., at 

440; supra, at 2. Some pre-Act offenders (as defined by

SORNA) had never needed to register before; others had

once had to register, but had fulfilled their old obligations. 

And still others (the “lost” or “missing” offenders) should

have registered, but had escaped the system. As a result, 

SORNA created a “practical problem[]”: It would require 

“newly registering or reregistering a large number of preAct offenders.” Reynolds, 565 U. S., at 440 (internal quotation marks omitted). And attached to that broad feasibility concern was a more technical one. Recall that under 

SORNA “a sex offender must initially register before

completing his ‘sentence of imprisonment.’” Id., at 439 

(quoting §20913(b)); see supra, at 3. But many pre-Act 

offenders were already out of prison, so could not comply

with that requirement. That inability raised questions

about “how[] the new registration requirements applied to

them.” 565 U. S., at 441. “Congress[’s] solution” to both 

those difficulties was the same: Congress “[a]sk[ed] the

Department of Justice, charged with responsibility for 

implementation, to examine [the issues] and to apply the 

new registration requirements accordingly.” Ibid. 

On that understanding, the Attorney General’s role 

under §20913(d) was important but limited: It was to 

apply SORNA to pre-Act offenders as soon as he thought it 

feasible to do so. That statutory delegation, the Court 

explained, would “involve[] implementation delay.” Id., at 

443. But no more than that. Congress had made clear in 

SORNA’s text that the new registration requirements

would apply to pre-Act offenders. See id., at 442–445. So 

(the Court continued) “there was no need” for Congress to 

worry about the “unrealistic possibility” that “the Attorney 

General would refuse to apply” those requirements on 

some excessively broad view of his authority under 
 

 

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Opinion of KAGAN, J. 

§20913(d). Id., at 444–445. Reasonably read, SORNA

enabled the Attorney General only to address (as appropriate) the “practical problems” involving pre-Act offenders before requiring them to register. Id., at 440. The 

delegation was a stopgap, and nothing more.2

 Gundy dismisses Reynolds’s relevance, but his arguments come up short. To begin, he contends that Reynolds spoke “tentative[ly]”—with “might[s], may[s], or

could[s]”—about Congress’s reasons for enacting

§20913(d). Reply Brief 11; see supra, at 7 (quoting such 

phrases). Gundy concludes from such constructions— 

which are indeed present—that the Court was “not offering a definitive reading of the statute.” Reply Brief 11.

But the Court used those locutions to convey not its own 

uncertainty but Congress’s. The point of the opinion was

that Congress had questions about how best to phase

SORNA’s application to pre-Act offenders, so gave the 

Attorney General flexibility on timing. The “mights,

mays, and coulds” were there to describe the legislative 

mindset responsible for §20913(d), and thus formed part of

the Court’s own—yes, “definitive”—view of that provision’s 

meaning. Anticipating that explanation, Gundy falls back 

on the claim that the Court’s account of Congress’s motivations “cannot supply the intelligible principle Congress

failed to enact into law.” Id., at 12 (citing Whitman, 531 

U. S., at 473). But the Court in Reynolds did not invent a 

standard Congress omitted. Rather, the Court read the 

statute to contain a standard—again, that the Attorney 

—————— 

2Once again, the dissent agreed with the Court that §20913(d) could 

not sensibly be read to give the Attorney General any greater power.

“[I]t is simply implausible,” the dissent concluded, “that the Attorney

General was given discretion to determine whether coverage of pre-Act 

offenders (one of the purposes of the Act) should exist.” 565 U. S., at 

450 (opinion of Scalia, J.). The dissent parted ways with the Court only 

in interpreting §20913(d) to provide the Attorney General with even 

less authority. 
 

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10 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

General should apply SORNA to pre-Act offenders as soon

as feasible. And as the next part of this opinion shows, in

somewhat greater detail than Reynolds thought necessary, 

we read the statute in the same way. 

B 

Recall again the delegation provision at issue. Congress

gave the Attorney General authority to “specify the applicability” of SORNA’s requirements to pre-Act offenders. 

§20913(d). And in the second half of the same sentence, 

Congress gave him authority to “prescribe rules for the 

registration of any such sex offenders . . . who are unable

to comply with” subsection (b)’s initial registration requirement. Ibid. What does the delegation in §20913(d)

allow the Attorney General to do? 

The different answers on offer here reflect competing

views of statutory interpretation. As noted above, Gundy

urges us to read §20913(d) to empower the Attorney General to do whatever he wants as to pre-Act offenders: He 

may make them all register immediately or he may exempt them from registration forever (or he may do anything in between). See Brief for Petitioner 41–42; supra, 

at 6. Gundy bases that argument on the first half of 

§20913(d), isolated from everything else—from the second 

half of the same section, from surrounding provisions in 

SORNA, and from any conception of the statute’s history 

and purpose. Reynolds took a different approach (as does 

the Government here), understanding statutory interpretation as a “holistic endeavor” which determines meaning

by looking not to isolated words, but to text in context,

along with purpose and history. United Sav. Assn. of Tex. 

v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 

365, 371 (1988).

This Court has long refused to construe words “in a

vacuum,” as Gundy attempts. Davis v. Michigan Dept. of 

Treasury, 489 U. S. 803, 809 (1989). “It is a fundamental 
 

 

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Opinion of KAGAN, J. 

canon of statutory construction that the words of a statute 

must be read in their context and with a view to their 

place in the overall statutory scheme.” National Assn. of 

Home Builders v. Defenders of Wildlife, 551 U. S. 644, 666 

(2007) (internal quotation marks omitted); see Utility Air 

Regulatory Group v. EPA, 573 U. S. 302, 321 (2014) 

(“[R]easonable statutory interpretation must account for 

both the specific context in which . . . language is used and

the broader context of the statute as a whole” (internal

quotation marks omitted)). And beyond context and structure, the Court often looks to “history [and] purpose” to 

divine the meaning of language. Maracich v. Spears, 570 

U. S. 48, 76 (2013) (internal quotation marks omitted).

That non-blinkered brand of interpretation holds good for 

delegations, just as for other statutory provisions. To 

define the scope of delegated authority, we have looked to 

the text in “context” and in light of the statutory “purpose.” National Broadcasting Co. v. United States, 319 

U. S. 190, 214, 216 (1943) (internal quotation marks omitted); see American Power & Light, 329 U. S., at 104 (stating that the delegation at issue “derive[d] much meaningful content from the purpose of the Act, its factual 

background and the statutory context”). In keeping with

that method, we again do so today.

So begin at the beginning, with the “[d]eclaration of 

purpose” that is SORNA’s first sentence. §20901. There, 

Congress announced (as Reynolds noted, see supra, at 6–7)

that “to protect the public,” it was “establish[ing] a comprehensive national system for the registration” of “sex

offenders and offenders against children.” §20901. The 

term “comprehensive” has a clear meaning—something 

that is all-encompassing or sweeping. See, e.g., Webster’s 

Third New International Dictionary 467 (2002) (“covering

a matter under consideration completely or nearly completely”); New Oxford American Dictionary 350 (2d ed. 

2005) (“complete; including all or nearly all elements or 
 

Opinion of Kagan, J.

12 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

aspects of something”). That description could not fit the 

system SORNA created if the Attorney General could 

decline, for any reason or no reason at all, to apply 

SORNA to all pre-Act offenders. After all, for many years 

after SORNA’s enactment, the great majority of sex offenders in the country would be pre-Act offenders. If 

Gundy were right, all of those offenders could be exempt 

from SORNA’s registration requirements. So the mismatch between SORNA’s statement of purpose and Gundy’s view of §20913(d) is as stark as stark comes. Responding to that patent disparity, Gundy urges us to 

ignore SORNA’s statement of purpose because it is “located 

in the Act’s preface” rather than “tied” specifically to

§20913(d). Brief for Petitioner 46. But the placement of 

such a statement within a statute makes no difference. 

See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 220 (2012). Wherever it resides, it is 

“an appropriate guide” to the “meaning of the [statute’s] 

operative provisions.” Id., at 218. And here it makes clear 

that SORNA was supposed to apply to all pre-Act offenders—which precludes Gundy’s construction of §20913(d). 

The Act’s definition of “sex offender” (also noted in 

Reynolds, see supra, at 7) makes the same point. Under 

that definition, a “sex offender” is “an individual who was 

convicted of a sex offense.” §20911(1). Note the tense: 

“was,” not “is.” This Court has often “looked to Congress’ 

choice of verb tense to ascertain a statute’s temporal

reach,” including when interpreting other SORNA provisions. Carr v. United States, 560 U. S. 438, 447–448 

(2010) (holding that because SORNA “sets forth [its] travel

requirement in the present tense,” the statute’s criminal

penalties do not apply to a person whose interstate travel 

predated enactment); see, e.g., United States v. Wilson, 

503 U. S. 329, 333 (1992); Gwaltney of Smithfield, Ltd. v. 

Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987). 

Here, Congress’s use of the past tense to define the term 
 

Opinion of Kagan, J.

Cite as: 588 U. S. ____ (2019) 13 

Opinion of KAGAN, J. 

“sex offender” shows that SORNA was not merely forwardlooking. The word “is” would have taken care of all future 

offenders. The word “was” served to bring in the hundreds

of thousands of persons previously found guilty of a sex 

offense, and thought to pose a current threat to the public. 

The tense of the “sex offender” definition thus confirms 

that the delegation allows only temporary exclusions, as

necessary to address feasibility issues. Contra Gundy, it 

does not sweep so wide as to make a laughingstock of the 

statute’s core definition. 

The Act’s legislative history backs up everything said 

above by showing that the need to register pre-Act offenders was front and center in Congress’s thinking. (Once

again, the Reynolds majority noted this history, but Justice Scalia’s dissent thought that was gilding the lily. See 

supra, at 7, and n. 1. He had a point, but we can’t resist.) 

Recall that Congress designed SORNA to address “loopholes and deficiencies” in existing registration laws. See 

supra, at 2. And no problem attracted greater attention 

than the large number of sex offenders who had slipped 

the system. According to the House Report, “[t]he most

significant enforcement issue in the sex offender program 

is that over 100,000 sex offenders” are “‘missing,’ meaning 

that they have not complied with” then-current requirements. H. R. Rep. No. 109–218, at 26. There is a “strong 

public interest,” the Report continued, in “having [those

offenders] register with current information to mitigate 

the risks of additional crimes against children.” Id., at 24. 

Senators struck a similar chord in the debates preceding 

SORNA’s passage, repeatedly stressing that the new

provisions would capture the missing offenders. See, e.g.,

152 Cong. Rec. 15338 (2006) (statement of Sen. Kyl) (“The 

penalties in this bill should be adequate to ensure that 

[the 100,000 missing offenders] register”); id., at 13050 

(statement of Sen. Frist) (“Every day that we don’t have

this national sex offender registry, these missing sex 
 

 

Opinion of Kagan, J.

14 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

predators are out there somewhere”). Imagine how surprising those Members would have found Gundy’s view

that they had authorized the Attorney General to exempt

the missing “predators” from registering at all. 

With that context and background established, we may

return to §20913(d). As we have noted, Gundy makes his

stand there (and there only), insisting that the lonesome

phrase “specify the applicability” ends this case. See 

supra, at 10. But in so doing, Gundy ignores even the rest 

of the section that phrase is in. Both the title and the 

remaining text of that section pinpoint one of the “practical problems” discussed above: At the moment of SORNA’s

enactment, many pre-Act offenders were “unable to comply” with the Act’s initial registration requirements. 

§20913(d); Reynolds, 565 U. S., at 440; see supra, at 8. 

That was because, once again, the requirements assumed 

that offenders would be in prison, whereas many pre-Act

offenders were on the streets. In identifying that issue,

§20913(d) itself reveals the nature of the delegation to the 

Attorney General. It was to give him the time needed (if 

any) to address the various implementation issues involved in getting pre-Act offenders into the registration 

system. “Specify the applicability” thus does not mean 

“specify whether to apply SORNA” to pre-Act offenders at 

all, even though everything else in the Act commands 

their coverage. The phrase instead means “specify how to 

apply SORNA” to pre-Act offenders if transitional difficulties require some delay. In that way, the whole of 

§20913(d) joins the rest of SORNA in giving the Attorney 

General only time-limited latitude to excuse pre-Act offenders from the statute’s requirements. Under the law, 

he had to order their registration as soon as feasible.

And no Attorney General has used (or, apparently,

thought to use) §20913(d) in any more expansive way. To 

the contrary. Within a year of SORNA’s enactment (217

days, to be precise), the Attorney General determined that 
 

 

 

 

Opinion of Kagan, J.

Cite as: 588 U. S. ____ (2019) 15 

Opinion of KAGAN, J. 

SORNA would apply immediately to pre-Act offenders.

See Interim Rule, 72 Fed. Reg. 8897; supra, at 4. That 

rule has remained in force ever since (save for a technical 

change to one of the rule’s illustrative examples). See 

Final Rule, 75 Fed. Reg. 81850.3 And at oral argument

here, the Solicitor General’s office—rarely in a hurry to 

agree to limits on the Government’s authority—

acknowledged that §20913(d) does not allow the Attorney

General to excuse a pre-Act offender from registering,

except for reasons of “feasibility.” Tr. of Oral Arg. 41–42.

We thus end up, on close inspection of the statutory

scheme, exactly where Reynolds left us. The Attorney 

General’s authority goes to transition-period implementation issues, and no further. 

C 

Now that we have determined what §20913(d) means,

we can consider whether it violates the Constitution. The 

question becomes: Did Congress make an impermissible 

delegation when it instructed the Attorney General to 

apply SORNA’s registration requirements to pre-Act

offenders as soon as feasible? Under this Court’s longestablished law, that question is easy. Its answer is no. 

As noted earlier, this Court has held that a delegation is 

constitutional so long as Congress has set out an “intelligible principle” to guide the delegee’s exercise of authority. 

—————— 

3Gundy tries to dispute that simple fact, but fails. He points to 

changes that Attorneys General have made in guidelines to States 

about how to satisfy SORNA’s funding conditions. See Brief for Petitioner 32–33. But those state-directed rules are independent of the 

only thing at issue here: the application of registration requirements to

pre-Act offenders. Those requirements have been constant since the 

Attorney General’s initial rule, as the guidelines themselves affirm. 

See 73 Fed. Reg. 38046 (2008); 76 Fed. Reg. 1639 (2011). Indeed, the 

guidelines to States are issued not under §20913(d) at all, but under a 

separate delegation in §20912(b). See 73 Fed. Reg. 38030; 76 Fed. Reg. 

1631. 
 

 

 

Opinion of Kagan, J.

16 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

J. W. Hampton, Jr., & Co., 276 U. S., at 409; see supra, at 

5. Or in a related formulation, the Court has stated that a 

delegation is permissible if Congress has made clear to the 

delegee “the general policy” he must pursue and the 

“boundaries of [his] authority.” American Power & Light, 

329 U. S., at 105. Those standards, the Court has made 

clear, are not demanding. “[W]e have ‘almost never felt

qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those 

executing or applying the law.’” Whitman, 531 U. S., at 

474–475 (quoting Mistretta, 488 U. S., at 416 (Scalia, J., 

dissenting)). Only twice in this country’s history (and that 

in a single year) have we found a delegation excessive—in 

each case because “Congress had failed to articulate any 

policy or standard” to confine discretion. Mistretta, 488 

U. S., at 373, n. 7 (emphasis added); see A. L. A. Schechter 

Poultry Corp. v. United States, 295 U. S. 495 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935). By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations

to various agencies to regulate in the “public interest.” 

See, e.g., National Broadcasting Co., 319 U. S., at 216; 

New York Central Securities Corp. v. United States, 287 

U. S. 12, 24 (1932). We have sustained authorizations for 

agencies to set “fair and equitable” prices and “just and 

reasonable” rates. Yakus, 321 U. S., at 422, 427; FPC v. 

Hope Natural Gas Co., 320 U. S. 591 (1944). We more 

recently affirmed a delegation to an agency to issue whatever air quality standards are “requisite to protect the 

public health.” Whitman, 531 U. S., at 472 (quoting 42 

U. S. C. §7409(b)(1)). And so forth. 

In that context, the delegation in SORNA easily passes 

muster (as all eleven circuit courts to have considered the

question found, see supra, at 4). The statute conveyed 

Congress’s policy that the Attorney General require preAct offenders to register as soon as feasible. Under the 
 

 

 

 

 

Opinion of Kagan, J.

Cite as: 588 U. S. ____ (2019) 17 

Opinion of KAGAN, J. 

law, the feasibility issues he could address were administrative—and, more specifically, transitional—in nature.

Those issues arose, as Reynolds explained, from the need

to “newly register[] or reregister[] ‘a large number’ of preAct offenders” not then in the system. 565 U. S., at 440; 

see supra, at 8. And they arose, more technically, from the

gap between an initial registration requirement hinged on

imprisonment and a set of pre-Act offenders long since 

released. See 565 U. S., at 441; see supra, at 8. Even for 

those limited matters, the Act informed the Attorney

General that he did not have forever to work things out.

By stating its demand for a “comprehensive” registration

system and by defining the “sex offenders” required to

register to include pre-Act offenders, Congress conveyed

that the Attorney General had only temporary authority.

Or again, in the words of Reynolds, that he could prevent 

“instantaneous registration” and impose some “implementation delay.” 565 U. S., at 443. That statutory authority, 

as compared to the delegations we have upheld in the 

past, is distinctly small-bore. It falls well within constitutional bounds.4 

Indeed, if SORNA’s delegation is unconstitutional, then 

most of Government is unconstitutional—dependent as

Congress is on the need to give discretion to executive

officials to implement its programs. Consider again this

Court’s long-time recognition: “Congress simply cannot do

its job absent an ability to delegate power under broad 

general directives.” Mistretta, 488 U. S., at 372; see supra, 

at 5. Or as the dissent in that case agreed: “[S]ome judgments . . . must be left to the officers executing the law.”

488 U. S., at 415 (opinion of Scalia, J.); see Whitman, 531 

—————— 

4Even Gundy conceded at oral argument that if the statute means 

what we have said, it “likely would be constitutional.” Tr. of Oral Arg. 

25. That is why all of his argument is devoted to showing that it means 

something else. 
 

 

Opinion of Kagan, J.

18 GUNDY v. UNITED STATES 

Opinion of KAGAN, J. 

U. S., at 475 (“[A] certain degree of discretion[] inheres in

most executive” action (internal quotation marks omitted)). Among the judgments often left to executive officials 

are ones involving feasibility. In fact, standards of that 

kind are ubiquitous in the U. S. Code. See, e.g., 12 U. S. 

C. §1701z–2(a) (providing that the Secretary of Housing 

and Urban Development “shall require, to the greatest

extent feasible, the employment of new and improved

technologies, methods, and materials in housing construction[] under [HUD] programs”); 47 U. S. C. §903(d)(1)

(providing that “the Secretary of Commerce shall promote

efficient and cost-effective use of the spectrum to the

maximum extent feasible” in “assigning frequencies for 

mobile radio services”). In those delegations, Congress

gives its delegee the flexibility to deal with real-world 

constraints in carrying out his charge. So too in SORNA. 

It is wisdom and humility alike that this Court has 

always upheld such “necessities of government.” Mistretta, 

488 U. S., at 416 (Scalia, J., dissenting) (internal quotation marks omitted); see ibid. (“Since Congress is no less

endowed with common sense than we are, and better 

equipped to inform itself of the ‘necessities’ of government; 

and since the factors bearing upon those necessities are 

both multifarious and (in the nonpartisan sense) highly

political . . . it is small wonder that we have almost never 

felt qualified to second-guess Congress regarding the 

permissible degree of policy judgment that can be left to 

those executing or applying the law”). We therefore affirm 

the judgment of the Court of Appeals. 

It is so ordered.

 JUSTICE KAVANAUGH took no part in the consideration

or decision of this case. 
 

ALITO, J., concurring

_________________ 

_________________ 

Cite as: 588 U. S. ____ (2019) 1 

ALITO, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 17–6086 

HERMAN AVERY GUNDY, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 20, 2019] 

JUSTICE ALITO, concurring in the judgment. 

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to

delegate them to another branch of the Government. See 

Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 

472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld

provisions that authorized agencies to adopt important

rules pursuant to extraordinarily capacious standards.

See ibid. 

If a majority of this Court were willing to reconsider the 

approach we have taken for the past 84 years, I would 

support that effort. But because a majority is not willing 

to do that, it would be freakish to single out the provision

at issue here for special treatment.

Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this

Court has taken for many years, I vote to affirm. 
 

GORSUCH, J., concurring

_________________ 

_________________ 

Cite as: 588 U. S. ____ (2019) 1 

GORSUCH, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 17–6086 

HERMAN AVERY GUNDY, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 20, 2019] 

JUSTICE GORSUCH, with whom THE CHIEF JUSTICE and 

JUSTICE THOMAS join, dissenting. 

The Constitution promises that only the people’s elected

representatives may adopt new federal laws restricting

liberty. Yet the statute before us scrambles that design.

It purports to endow the nation’s chief prosecutor with the 

power to write his own criminal code governing the lives of 

a half-million citizens. Yes, those affected are some of the 

least popular among us. But if a single executive branch

official can write laws restricting the liberty of this group

of persons, what does that mean for the next? 

Today, a plurality of an eight-member Court endorses

this extraconstitutional arrangement but resolves nothing. 

Working from an understanding of the Constitution at war 

with its text and history, the plurality reimagines the

terms of the statute before us and insists there is nothing 

wrong with Congress handing off so much power to the 

Attorney General. But JUSTICE ALITO supplies the fifth 

vote for today’s judgment and he does not join either the 

plurality’s constitutional or statutory analysis, indicating 

instead that he remains willing, in a future case with a 

full Court, to revisit these matters. Respectfully, I would

not wait. 
 

 

 

 

 

2 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

I 

For individuals convicted of sex offenses after Congress

adopted the Sex Offender Registration and Notification 

Act (SORNA) in 2006, the statute offers detailed instructions. It requires them “to provide state governments with

(and to update) information, such as names and current 

addresses, for inclusion on state and federal sex offender 

registries.”1 The law divides offenders into three tiers 

based on the seriousness of their crimes: Some must register for 15 years, others for 25 years, and still others for 

life.2 The statute proceeds to set registration deadlines: 

Offenders sentenced to prison must register before they’re

released, while others must register within three business 

days after sentencing.3 The statute explains when and

how offenders must update their registrations.4 And the 

statute specifies particular penalties for failing to comply 

with its commands.5 On and on the statute goes for more 

than 20 pages of the U. S. Code. 

But what about those convicted of sex offenses before the 

Act’s adoption? At the time of SORNA’s enactment, the 

nation’s population of sex offenders exceeded 500,000, and 

Congress concluded that something had to be done about 

these “pre-Act” offenders too. But it seems Congress 

couldn’t agree what that should be. The treatment of preAct offenders proved a “controversial issue with major

policy significance and practical ramifications for states.”6 

Among other things, applying SORNA immediately to this

group threatened to impose unpopular and costly burdens 

—————— 

1 Reynolds v. United States, 565 U. S. 432, 434 (2012). 2 34 U. S. C. §§20911, 20915(a). 

3 §20913(b). 

4 §20913(c). 

5 §20913(e). 

6Logan, The Adam Walsh Act and the Failed Promise of Administrative Federalism, 78 Geo. Wash. L. Rev. 993, 999–1000 (2010). 
 

 

Cite as: 588 U. S. ____ (2019) 3 

GORSUCH, J., dissenting 

on States and localities by forcing them to adopt or overhaul their own sex offender registration schemes.7 So 

Congress simply passed the problem to the Attorney General. For all half-million pre-Act offenders, the law says 

only this, in 34 U. S. C. §20913(d): 

“The Attorney General shall have the authority to

specify the applicability of the requirements of this 

subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for 

the registration of any such sex offender.” 

Yes, that’s it. The breadth of the authority Congress 

granted to the Attorney General in these few words can 

only be described as vast. As the Department of Justice 

itself has acknowledged, SORNA “does not require the

Attorney General” to impose registration requirements on

pre-Act offenders “within a certain time frame or by a date 

certain; it does not require him to act at all.”8 If the Attorney General does choose to act, he can require all preAct offenders to register, or he can “require some but not 

all to register.”9 For those he requires to register, the 

Attorney General may impose “some but not all of 

[SORNA’s] registration requirements,” as he pleases.10 

And he is free to change his mind on any of these matters 

“at any given time or over the course of different [political] 

administrations.”11 Congress thus gave the Attorney

General free rein to write the rules for virtually the entire

existing sex offender population in this country—a situation that promised to persist for years or decades until 

—————— 

7 Id., at 1003–1004. 8Brief for United States in Reynolds v. United States, O. T. 2011, 

No. 10–6549, p. 23. 9 Id., at 24. 10 Ibid. 

11 Ibid. 
 

 

 

 

4 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

pre-Act offenders passed away or fulfilled the terms of 

their registration obligations and post-Act offenders came 

to predominate.

Unsurprisingly, different Attorneys General have exercised their discretion in different ways.12 For six months 

after SORNA’s enactment, Attorney General Gonzales left

past offenders alone. Then the pendulum swung the other

direction when the Department of Justice issued an interim 

rule requiring pre-Act offenders to follow all the same 

rules as post-Act offenders.13 A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders.14 Three years after that, Attorney General Holder

required the States to register only those pre-Act offenders

convicted of a new felony after SORNA’s enactment.15 

Various Attorneys General have also taken different

positions on whether pre-Act offenders might be entitled 

to credit for time spent in the community before SORNA

was enacted.16 

These unbounded policy choices have profound consequences for the people they affect. Take our case. Before 

SORNA’s enactment, Herman Gundy pleaded guilty in

2005 to a sexual offense. After his release from prison five 

years later, he was arrested again, this time for failing to

register as a sex offender according to the rules the Attorney General had then prescribed for pre-Act offenders. As 

a result, Mr. Gundy faced an additional 10-year prison

term—10 years more than if the Attorney General had, in 

—————— 

12See, e.g., 72 Fed. Reg. 8894 (2007); 73 Fed. Reg. 38030 (2008); 76 

Fed. Reg. 1639 (2011). 13 28 CFR §72.3 (2007); 72 Fed. Reg. 8894. 

14See 73 Fed. Reg. 38030. 

15See 76 Fed. Reg. 1639. 

16Compare 73 Fed. Reg. 38036 (no credit given) with 75 Fed. Reg. 

81851 (full credit given). 
 

 

 

Cite as: 588 U. S. ____ (2019) 5 

GORSUCH, J., dissenting 

his discretion, chosen to write the rules differently. 

II 

A 

Our founding document begins by declaring that “We

the People . . . ordain and establish this Constitution.” At 

the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but 

to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different 

aspects of the people’s sovereign power in distinct entities.

In Article I, the Constitution entrusted all of the federal 

government’s legislative power to Congress. In Article II, 

it assigned the executive power to the President. And in 

Article III, it gave independent judges the task of applying 

the laws to cases and controversies. 

To the framers, each of these vested powers had a distinct content. When it came to the legislative power, the 

framers understood it to mean the power to adopt generally applicable rules of conduct governing future actions by

private persons—the power to “prescrib[e] the rules by

which the duties and rights of every citizen are to be

regulated,”17 or the power to “prescribe general rules for

the government of society.”18 

The framers understood, too, that it would frustrate “the 

system of government ordained by the Constitution” if

Congress could merely announce vague aspirations and 

then assign others the responsibility of adopting legislation to realize its goals.19 Through the Constitution, after 

—————— 

17The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). 

18 Fletcher v. Peck, 6 Cranch 87, 136 (1810); see also J. Locke, The 

Second Treatise of Civil Government and a Letter Concerning Toleration §22, p. 13 (1947) (Locke, Second Treatise); 1 W. Blackstone, Commentaries on the Laws of England 44 (1765). 19 Marshall Field & Co. v. Clark, 143 U. S. 649, 692 (1892). 
 

 

 

 

6 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

all, the people had vested the power to prescribe rules

limiting their liberties in Congress alone. No one, not 

even Congress, had the right to alter that arrangement.

As Chief Justice Marshall explained, Congress may not

“delegate . . . powers which are strictly and exclusively 

legislative.”20 Or as John Locke, one of the thinkers who 

most influenced the framers’ understanding of the separation of powers, described it: 

“The legislative cannot transfer the power of making 

laws to any other hands; for it being but a delegated 

power from the people, they who have it cannot pass it 

over to others. The people alone can appoint the form 

of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be.

And when the people have said we will submit to 

rules, and be governed by laws made by such men,

and in such forms, nobody else can say other men

shall make laws for them; nor can the people be bound

by any laws but such as are enacted by those whom 

they have chosen and authorised to make laws for 

them.”21 

Why did the framers insist on this particular arrangement? They believed the new federal government’s most 

dangerous power was the power to enact laws restricting 

the people’s liberty.22 An “excess of law-making” was, in 

their words, one of “the diseases to which our governments

are most liable.”23 To address that tendency, the framers 

went to great lengths to make lawmaking difficult. In 

Article I, by far the longest part of the Constitution, the 

—————— 

20 Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). 21Locke, Second Treatise §141, at 71. 

22The Federalist No. 48, at 309–312 (J. Madison). 

23 Id., No. 62, at 378. See also id., No. 73, at 441–442 (Hamilton); 

Locke, Second Treatise §143. 
 

Cite as: 588 U. S. ____ (2019) 7 

GORSUCH, J., dissenting 

framers insisted that any proposed law must win the

approval of two Houses of Congress—elected at different

times, by different constituencies, and for different terms

in office—and either secure the President’s approval or 

obtain enough support to override his veto. Some occasionally complain about Article I’s detailed and arduous 

processes for new legislation, but to the framers these 

were bulwarks of liberty.

Nor was the point only to limit the government’s capacity to restrict the people’s freedoms. Article I’s detailed 

processes for new laws were also designed to promote 

deliberation. “The oftener the measure is brought under 

examination,” Hamilton explained, “the greater the diversity in the situations of those who are to examine it,” and 

“the less must be the danger of those errors which flow 

from want of due deliberation, or of those missteps which 

proceed from the contagion of some common passion or

interest.”24 

Other purposes animated the framers’ design as well. 

Because men are not angels25 and majorities can threaten

minority rights, the framers insisted on a legislature 

composed of different bodies subject to different electorates as a means of ensuring that any new law would 

have to secure the approval of a supermajority of the 

people’s representatives. This, in turn, assured minorities 

that their votes would often decide the fate of proposed

legislation. Indeed, some even thought a Bill of Rights 

would prove unnecessary in light of the Constitution’s 

design; in their view, sound structures forcing “[a]mbition

[to] . . . counteract ambition” would do more than written 

promises to guard unpopular minorities from the tyranny 

—————— 

24The Federalist No. 73, at 443. 

25 Id., No. 51, at 322 (Madison); D. Schoenbrod, Power Without Responsibility 29 (1993) (Schoenbrod). 
 

 

 

8 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

of the majority.26 Restricting the task of legislating to one

branch characterized by difficult and deliberative processes

was also designed to promote fair notice and the rule of 

law, ensuring the people would be subject to a relatively 

stable and predictable set of rules.27 And by directing that 

legislating be done only by elected representatives in a 

public process, the Constitution sought to ensure that the

lines of accountability would be clear: The sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow.28 

If Congress could pass off its legislative power to the

executive branch, the “[v]esting [c]lauses, and indeed the 

entire structure of the Constitution,” would “make no 

sense.”29 Without the involvement of representatives from

across the country or the demands of bicameralism and 

presentment, legislation would risk becoming nothing 

more than the will of the current President. And if laws 

could be simply declared by a single person, they would 

not be few in number, the product of widespread social 

consensus, likely to protect minority interests, or apt to

provide stability and fair notice.30 Accountability would

suffer too. Legislators might seek to take credit for addressing a pressing social problem by sending it to the

executive for resolution, while at the same time blaming

the executive for the problems that attend whatever 

measures he chooses to pursue. In turn, the executive 

might point to Congress as the source of the problem.

These opportunities for finger-pointing might prove tempt- 

—————— 

26The Federalist No. 51, at 322. See also id., No. 84, at 515 (Hamilton). 27 Id., No. 62, at 378–380. 28Schoenbrod 99; see also The Federalist No. 50, at 316 (Madison). 

29Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 340 

(2002). 30The Federalist No. 47, at 303 (Madison); id., No. 62, at 378 (same). 
Cite as: 588 U. S. ____ (2019) 9 

GORSUCH, J., dissenting 

ingly advantageous for the politicians involved, but they 

would also threaten to “‘disguise . . . responsibility for . . . 

the decisions.’”31 

The framers warned us against permitting consequences

like these. As Madison explained, “‘[t]here can be no

liberty where the legislative and executive powers are 

united in the same person, or body of magistrates.’”32 The 

framers knew, too, that the job of keeping the legislative 

power confined to the legislative branch couldn’t be trusted 

to self-policing by Congress; often enough, legislators 

will face rational incentives to pass problems to the executive branch. Besides, enforcing the separation of powers

isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. 

And it’s about safeguarding a structure designed to protect 

their liberties, minority rights, fair notice, and the rule of

law. So when a case or controversy comes within the

judicial competence, the Constitution does not permit

judges to look the other way; we must call foul when the 

constitutional lines are crossed. Indeed, the framers 

afforded us independence from the political branches 

in large part to encourage exactly this kind of “fortitude . . . to do [our] duty as faithful guardians of the 

Constitution.”33 

—————— 

31Rao, Administrative Collusion: How Delegation Diminishes the 

Collective Congress, 90 N. Y. U. L. Rev. 1463, 1478 (2015). See also B. 

Iancu, Legislative Delegation: The Erosion of Normative Limits in 

Modern Constitutionalism 87 (2012). 32The Federalist No. 47, at 302 (Madison). Accord, 1 Blackstone, 

Commentaries on the Laws of England, at 142; see also Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv. J. L. & Pub. Pol’y 147, 153 (2016). 33The Federalist No. 78, at 470. 
 

 

 

 

 

10 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

B 

Accepting, then, that we have an obligation to decide

whether Congress has unconstitutionally divested itself of 

its legislative responsibilities, the question follows: What’s 

the test? Madison acknowledged that “no skill in the 

science of government has yet been able to discriminate

and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary.”34 Chief 

Justice Marshall agreed that policing the separation of 

powers “is a subject of delicate and difficult inquiry.”35 

Still, the framers took this responsibility seriously and 

offered us important guiding principles. 

First, we know that as long as Congress makes the 

policy decisions when regulating private conduct, it may

authorize another branch to “fill up the details.” In Wayman v. Southard, this Court upheld a statute that instructed the federal courts to borrow state-court procedural

rules but allowed them to make certain “alterations and 

additions.” Writing for the Court, Chief Justice Marshall 

distinguished between those “important subjects, which 

must be entirely regulated by the legislature itself,” and 

“those of less interest, in which a general provision may be

made, and power given to those who are to act . . . to fill up 

the details.”36 The Court upheld the statute before it 

because Congress had announced the controlling general

policy when it ordered federal courts to follow state procedures, and the residual authority to make “alterations and 

additions” did no more than permit courts to fill up the 

details. 

Later cases built on Chief Justice Marshall’s understanding. In In re Kollock, for example, the Court upheld 

—————— 

34 Id., No. 37, at 228 (Madison). 35 Wayman, 10 Wheat., at 46. 36 Id., at 31, 43. 
 

 

 

Cite as: 588 U. S. ____ (2019) 11 

GORSUCH, J., dissenting 

a statute that assigned the Commissioner of Internal 

Revenue the responsibility to design tax stamps for margarine packages.37 Later still, and using the same logic, 

the Court sustained other and far more consequential

statutes, like a law authorizing the Secretary of Agriculture to adopt rules regulating the “use and occupancy” of 

public forests to protect them from “destruction” and 

“depredations.”38 Through all these cases, small or large,

runs the theme that Congress must set forth standards

“sufficiently definite and precise to enable Congress, the

courts, and the public to ascertain” whether Congress’s

guidance has been followed.39 

Second, once Congress prescribes the rule governing

private conduct, it may make the application of that rule

depend on executive fact-finding. Here, too, the power

extended to the executive may prove highly consequential.

During the Napoleonic Wars, for example, Britain and 

France each tried to block the United States from trading 

with the other. Congress responded with a statute instructing that, if the President found that either Great 

Britain or France stopped interfering with American 

trade, a trade embargo would be imposed against the 

other country. In Cargo of Brig Aurora v. United States, 

this Court explained that it could “see no sufficient reason,

why the legislature should not exercise its discretion [to

impose an embargo] either expressly or conditionally, as 

their judgment should direct.”40 Half a century later, 

Congress likewise made the construction of the Brooklyn 

Bridge depend on a finding by the Secretary of War that 

—————— 

37 165 U. S. 526, 532 (1897). 

38 United States v. Grimaud, 220 U. S. 506, 522 (1911). See also Buttfield v. Stranahan, 192 U. S. 470, 496 (1904); ICC v. Goodrich Transit 

Co., 224 U. S. 194, 210, 215 (1912). 

39 Yakus v. United States, 321 U. S. 414, 426 (1944). 40 7 Cranch 382, 388 (1813) (emphasis added). 
 

 

 

12 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

the bridge wouldn’t interfere with navigation of the East 

River. The Court held that Congress “did not abdicate any 

of its authority” but “simply declared that, upon a certain

fact being established, the bridge should be deemed a

lawful structure, and employed the secretary of war as an

agent to ascertain that fact.”41 

Third, Congress may assign the executive and judicial

branches certain non-legislative responsibilities. While 

the Constitution vests all federal legislative power in 

Congress alone, Congress’s legislative authority sometimes overlaps with authority the Constitution separately

vests in another branch.42 So, for example, when a congressional statute confers wide discretion to the executive, 

no separation-of-powers problem may arise if “the discretion is to be exercised over matters already within the 

scope of executive power.”43 Though the case was decided

on different grounds, the foreign-affairs-related statute in 

Cargo of the Brig Aurora may be an example of this kind 

of permissible lawmaking, given that many foreign affairs

powers are constitutionally vested in the president under

Article II. Wayman itself might be explained by the same

principle as applied to the judiciary: Even in the absence 

of any statute, courts have the power under Article III “to

regulate their practice.”44 

C 

Before the 1930s, federal statutes granting authority to 

—————— 

41 Miller v. Mayor of New York, 109 U. S. 385, 393 (1883). 42See Loving v. United States, 517 U. S. 748, 768 (1996); id., at 776 

(Scalia, J., concurring in part and concurring in judgment); United 

States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936); 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) 

(Jackson, J., concurring). 43Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance? 83 Mich. L. Rev. 1223, 1260 (1985). 44 10 Wheat., at 43. 
 

 

Cite as: 588 U. S. ____ (2019) 13 

GORSUCH, J., dissenting 

the executive were comparatively modest and usually 

easily upheld. But then the federal government began to 

grow explosively. And with the proliferation of new executive programs came new questions about the scope of 

congressional delegations. Twice the Court responded by 

striking down statutes for violating the separation of 

powers.

In A. L. A. Schechter Poultry Corp. v. United States, the 

Court considered a statute that transferred to the President the power “to approve ‘codes of fair competition’” for

slaughterhouses and other industries.45 But Congress

offered no meaningful guidance. It did not, for example,

reference any pre-existing common law of fair competition 

that might have supplied guidance on the policy questions, 

as it arguably had done earlier with the Sherman Act.46 

And it did not announce rules contingent on executive

fact-finding. Nor was this assigned power one that anyone 

thought might inhere in the executive power. Proceeding

without the need to convince a majority of legislators, the 

President adopted a lengthy fair competition code written 

by a group of (possibly self-serving) New York poultry 

butchers. 

Included in the code was a rule that often made it a 

federal crime for butchers to allow customers to select 

which individual chickens they wished to buy. Kosher 

butchers such as the Schechters had a hard time following

these rules. Yet the government apparently singled out

the Schechters as a test case; inspectors repeatedly visited

them and, at times, apparently behaved abusively toward 

their customers. When the Schechters finally kicked the 

—————— 

45 295 U. S. 495, 521–522 (1935). 

46See State Oil Co. v. Khan, 522 U. S. 3, 21 (1997); National Soc. of 

Professional Engineers v. United States, 435 U. S. 679, 688 (1978);

Letwin, The English Common Law Concerning Monopolies, 21 U. Chi. 

L. Rev. 355 (1954). 
 

14 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

inspectors out, they were greeted with a criminal indictment running to dozens of counts. After a trial in which 

the Schechters were found guilty of selling one allegedly 

“unfit” chicken and other miscellaneous counts,47 this 

Court agreed to hear the case and struck down the law as

a violation of the separation of powers. If Congress could

permit the President to write a new code of fair competition all his own, Justice Cardozo explained, then “anything that Congress may do within the limits of the commerce clause for the betterment of business [could] be

done by the President . . . by calling it a code. This is 

delegation running riot.”48 

The same year, in Panama Refining Co. v. Ryan, the 

Court struck down a statute that authorized the President 

to decide whether and how to prohibit the interstate

transportation of “‘hot oil,’” petroleum produced or withdrawn from storage in excess of state-set quotas. As in 

Schechter Poultry, the law provided no notice to regulated

parties about what the President might wind up prohibiting, leading the Court to observe that Congress “ha[d]

declared no policy, ha[d] established no standard, ha[d] 

laid down no rule.”49 The Court explained that the statute

did not call for the executive to “ascertai[n] the existence

of facts to which legislation is directed.”50 Nor did it ask 

the executive to “‘fill up the details’” “within the framework of the policy which the legislature has sufficiently

defined.”51 “If [the statute] were held valid,” the Court

continued, “it would be idle to pretend that anything 

would be left of limitations upon the power of the Congress 

—————— 

47See A. Shlaes, The Forgotten Man: A New History of the Great 

Depression 214–225 (2007). 48 Schechter Poultry,295 U. S., at 553 (concurring opinion). 49 Panama Refining Co. v. Ryan, 293 U. S. 388, 415, 418, 430 (1935). 50 Id., at 426. 51 Id., at 426 (quoting Wayman, 10 Wheat., at 43); 293 U. S., at 429. 
 

 

 

 

Cite as: 588 U. S. ____ (2019) 15 

GORSUCH, J., dissenting 

to delegate its law-making function.”52

 After Schechter Poultry and Panama Refining, Congress

responded by writing a second wave of New Deal legislation more “[c]arefully crafted” to avoid the kind of problems that sank these early statutes.53 And since that time 

the Court hasn’t held another statute to violate the separation of powers in the same way. Of course, no one 

thinks that the Court’s quiescence can be attributed to an

unwavering new tradition of more scrupulously drawn 

statutes. Some lament that the real cause may have to do 

with a mistaken “case of death by association” because 

Schechter Poultry and Panama Refining happened to be 

handed down during the same era as certain of the Court’s

now-discredited substantive due process decisions.

54 But 

maybe the most likely explanation of all lies in the story of

the evolving “intelligible principle” doctrine.

This Court first used that phrase in 1928 in J. W. 

Hampton, Jr., & Co. v. United States, where it remarked 

that a statute “lay[ing] down by legislative act an intelligible principle to which the [executive official] is directed 

to conform” satisfies the separation of powers.55 No one at 

the time thought the phrase meant to effect some revolution in this Court’s understanding of the Constitution. 

While the exact line between policy and details, lawmaking and fact-finding, and legislative and non-legislative

functions had sometimes invited reasonable debate, everyone agreed these were the relevant inquiries. And when 

Chief Justice Taft wrote of an “intelligible principle,” it 

seems plain enough that he sought only to explain the 

—————— 

52 Id., at 430. 53M. McKenna, Franklin Roosevelt and the Great Constitutional 

War: The Court-Packing Crisis of 1937, p. 424 (2002). 54 J. Ely, Democracy and Distrust: A Theory of Judicial Review 133 

(1980). 55 276 U. S. 394, 409 (1928). 
 

 

 

 

16 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

operation of these traditional tests; he gave no hint of a 

wish to overrule or revise them. Tellingly, too, he wrote 

the phrase seven years before Schechter Poultry and Panama Refining, and it did nothing to alter the analysis in 

those cases, let alone prevent those challenges from succeeding by lopsided votes.

There’s a good argument, as well, that the statute in 

J. W. Hampton passed muster under the traditional tests.

To boost American competitiveness in international trade,

the legislation directed the President to “‘investigat[e]’” 

the relative costs of production for American companies

and their foreign counterparts and impose tariffs or duties

that would “‘equalize’” those costs.56 It also offered guidance on how to determine costs of production, listing

several relevant factors and establishing a process for

interested parties to submit evidence.57 The President’s 

fact-finding responsibility may have required intricate

calculations, but it could be argued that Congress had 

made all the relevant policy decisions, and the Court’s

reference to an “intelligible principle” was just another 

way to describe the traditional rule that Congress may 

leave the executive the responsibility to find facts and fill

up details.58 

Still, it’s undeniable that the “intelligible principle”

remark eventually began to take on a life of its own. We 

sometimes chide people for treating judicial opinions as if 

they were statutes, divorcing a passing comment from its

context, ignoring all that came before and after, and treating an isolated phrase as if it were controlling.59 But that 

seems to be exactly what happened here. For two decades, 

—————— 

56 Id., at 401. 57 Id., at 401–402. 58But see Department of Transportation v. Association of American 

Railroads, 575 U. S. 43, ___, ___, and n. 4 (2015) (THOMAS, J., concurring in judgment) (slip op., at 14, 17, and n. 4). 59See, e.g., Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). 
Cite as: 588 U. S. ____ (2019) 17 

GORSUCH, J., dissenting 

no one thought to invoke the “intelligible principle” comment as a basis to uphold a statute that would have failed 

more traditional separation-of-powers tests. In fact, the 

phrase sat more or less silently entombed until the late 

1940s. Only then did lawyers begin digging it up in earnest and arguing to this Court that it had somehow displaced (sub silentio of course) all prior teachings in this 

area.60 

This mutated version of the “intelligible principle” remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was 

plucked. Judges and scholars representing a wide and 

diverse range of views have condemned it as resting on

“misunderst[ood] historical foundations.”61 They have 

explained, too, that it has been abused to permit delegations of legislative power that on any other conceivable

account should be held unconstitutional. Indeed, where 

some have claimed to see “intelligible principles” many 

“less discerning readers [have been able only to] find

gibberish.”62 Even Justice Douglas, one of the fathers of 

—————— 

60See, e.g., Lichter v. United States, 334 U. S. 742, 785 (1948) (upholding a statute authorizing the executive to define “ ‘excessive profits’ ” earned by military contractors on the basis that the statute contained an “‘intelligible principle’”). 61 Association of American Railroads, 575 U. S., at ___ (THOMAS, J., 

concurring in judgment) (slip op., at 17). See also n. 62, infra (collecting 

sources). 62Lawson, 88 Va. L. Rev., at 329. See also Mistretta v. United States, 

488 U. S. 361, 415–417 (1989) (Scalia, J., dissenting); Ely, supra, at 132 

(“[B]y refusing to legislate, our legislators are escaping the sort of 

accountability that is crucial to the intelligible functioning of a democratic republic”); Wright, Beyond Discretionary Justice, 81 Yale L. J. 

575, 583 (1972) (“[T]he delegation doctrine retains an important potential as a check on the exercise of unbounded, standardless discretion by 

administrative agencies”); Michigan Gambling Opposition v. 

Kempthorne, 525 F. 3d 23, 34 (CADC 2008) (Brown, J., dissenting) 

(“[The majority] conjures standards and limits from thin air to con-
 

 

 

18 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

the administrative state, came to criticize excessive congressional delegations in the period when the intelligible

principle “test” began to take hold.63 

Still, the scope of the problem can be overstated. At 

least some of the results the Court has reached under the 

banner of the abused “intelligible principle” doctrine may 

be consistent with more traditional teachings. Some 

delegations have, at least arguably, implicated the president’s inherent Article II authority. The Court has held, 

for example, that Congress may authorize the President to 

prescribe aggravating factors that permit a military courtmartial to impose the death penalty on a member of the 

Armed Forces convicted of murder—a decision that may 

—————— 

struct a supposed intelligible principle”) (collecting cases); Schoenbrod, 

83 Mich. L. Rev., at 1231 (“[T]he [intelligible principle] test has become 

so ephemeral and elastic as to lose its meaning”); Schwartz, Of Administrators and Philosopher-Kings: The Republic, the Laws, and Delegations of Power, 72 Nw. U. L. Rev. 443, 446 (1977) (“[T]he requirement of 

defined standards has . . . become all but a vestigial euphemism”); P. 

Hamburger, Is Administrative Law Unlawful? 378 (2014) (“[T]he notion 

of an ‘intelligible principle’ sets a ludicrously low standard for what 

Congress must supply”); M. Redish, The Constitution as Political 

Structure 138–139 (1995); Gewirtz, The Courts, Congress, and Executive Policy-Making: Notes on Three Doctrines, 40 Law & Contemp. 

Prob., pt. 2, pp. 46, 50–51 (Summer 1976); McGowan, Congress, Court, 

and Control of Delegated Power, 77 Colum. L. Rev. 1119, 1127–1128, 

and n. 33 (1977). 63 “Washington, D. C., is filled with lobbyists for every special interest 

that is trying to make a fast buck out of some piece of the public domain. . . . In the thirties and forties I had viewed the creation of an 

agency as the solution of a problem. I learned that agencies soon

became spokesmen for the status quo, that few had the guts to carry

through the reforms assigned to them. I also realized that Congress 

defaulted when it left it up to an agency to do what the ‘public interest’ 

indicated should be done. ‘Public interest’ is too vague a standard to be 

left to free-wheeling administrators. They should be more closely 

confined to specific ends or goals.” W. Douglas, Go East, Young Man 

216–217 (1974). 
 

 

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GORSUCH, J., dissenting 

implicate in part the President’s independent commanderin-chief authority.64 Others of these cases may have involved laws that specified rules governing private conduct 

but conditioned the application of those rules on factfinding—a practice that is, as we’ve seen, also long associated with the executive function.65 

More recently, too, we’ve sought to tame misunderstandings of the intelligible principle “test.” In Touby v. United 

States, the Court considered a provision of the Controlled 

Substances Act that allowed the Attorney General to add a 

substance to a list of prohibited drugs temporarily if he 

determined that doing so was “ ‘necessary to avoid an 

imminent hazard to the public safety.’ ”66 Notably, Congress required the Attorney General, before acting, to 

consider the drug’s “ ‘history and current pattern of 

abuse,’ ” the “ ‘scope, duration, and significance of [that] 

abuse,’” and “‘[w]hat, if any, risk there is to the public

health.’”67 In approving the statute, the Court stressed all 

these constraints on the Attorney General’s discretion 

and, in doing so, seemed to indicate that the statute supplied an “intelligible principle” because it assigned an 

essentially fact-finding responsibility to the executive. 

Whether or not one agrees with its characterization of the 

statute, in proceeding as it did Touby may have at least 

begun to point us back in the direction of the right questions. To determine whether a statute provides an intelli-

—————— 

64 Loving, 517 U. S., at 771–774. 65See, e.g., Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 215, 

219–220 (1989) (statute directing Secretary of Transportation to 

establish pipeline safety user fees “ ‘sufficient to meet the costs of 

[specified] activities’ ” but not “ ‘exceed[ing] 105 percent of the aggregate 

of appropriations made for such fiscal year for activities to be funded by 

such fees’ ”). 66 500 U. S. 160, 166 (1991). 

67 Ibid. 
 

 

20 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

gible principle, we must ask: Does the statute assign to

the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must 

consider and the criteria against which to measure them? 

And most importantly, did Congress, and not the Executive Branch, make the policy judgments? Only then can

we fairly say that a statute contains the kind of intelligible 

principle the Constitution demands.

While it’s been some time since the Court last held that 

a statute improperly delegated the legislative power to 

another branch—thanks in no small measure to the intelligible principle misadventure—the Court has hardly

abandoned the business of policing improper legislative 

delegations. When one legal doctrine becomes unavailable 

to do its intended work, the hydraulic pressures of our 

constitutional system sometimes shift the responsibility to

different doctrines.68 And that’s exactly what’s happened 

here. We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by 

different names. 

Consider, for example, the “major questions” doctrine.

Under our precedents, an agency can fill in statutory gaps

where “statutory circumstances” indicate that Congress

meant to grant it such powers.69 But we don’t follow that 

rule when the “statutory gap” concerns “a question of deep 

‘economic and political significance’ that is central to the

statutory scheme.”70 So we’ve rejected agency demands 

that we defer to their attempts to rewrite rules for billions 

of dollars in healthcare tax credits,71 to assume control 

—————— 

68See, e.g., McDonald v. Chicago, 561 U. S. 742, 758 (2010) (incorporating the Second Amendment through the Due Process Clause instead

of the Privileges or Immunities Clause). 69 United States v. Mead Corp., 533 U. S. 218, 229 (2001). 70 King v. Burwell, 576 U. S. ___, ___ (2015) (slip op., at 8). 71 Ibid. 
 

 

 

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GORSUCH, J., dissenting 

over millions of small greenhouse gas sources,72 and to ban 

cigarettes.73 Although it is nominally a canon of statutory 

construction, we apply the major questions doctrine in

service of the constitutional rule that Congress may not 

divest itself of its legislative power by transferring that 

power to an executive agency.

Consider, too, this Court’s cases addressing vagueness. 

“A vague law,” this Court has observed, “impermissibly

delegates basic policy matters to policemen, judges, and 

juries for resolution on an ad hoc and subjective basis.”74 

And we have explained that our doctrine prohibiting

vague laws is an outgrowth and “corollary of the separation of powers.”75 It’s easy to see, too, how most any challenge to a legislative delegation can be reframed as a 

vagueness complaint: A statute that does not contain

“sufficiently definite and precise” standards “to enable 

Congress, the courts, and the public to ascertain” whether 

Congress’s guidance has been followed at once presents a 

delegation problem and provides impermissibly vague

guidance to affected citizens.76 And it seems little coincidence that our void-for-vagueness cases became much 

more common soon after the Court began relaxing its 

approach to legislative delegations. Before 1940, the 

Court decided only a handful of vagueness challenges to 

federal statutes. Since then, the phrase “void for vagueness” has appeared in our cases well over 100 times. 

—————— 

72 Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). 73 FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160 

(2000). 74 Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972); see 

Kolender v. Lawson, 461 U. S. 352, 358, n. 7 (1983); Sessions v. Dimaya, 

584 U. S. ___, ___–___ (2018) (GORSUCH, J., concurring in part and 

concurring in judgment) (slip op., at 7–9). 75 Id., at ___–___ (opinion of KAGAN, J.) (slip op., at 4–5). 76 Yakus, 321 U. S., at 426. 
 

 

 

 

22 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

Nor have we abandoned enforcing other sides of the

separation-of-powers triangle between the legislative, 

executive, and judiciary. We have not hesitated to prevent 

Congress from “confer[ring] the Government’s ‘judicial 

Power’ on entities outside Article III.”77 We’ve forbidden 

the executive from encroaching on legislative functions by 

wielding a line-item veto.78 We’ve prevented Congress

from delegating its collective legislative power to a single 

House.79 And we’ve policed legislative efforts to control

executive branch officials.80 These cases show that, when 

the separation of powers is at stake, we don’t just throw 

up our hands. In all these areas, we recognize that abdication is “not part of the constitutional design.”81 And 

abdication here would be no more appropriate. To leave 

this aspect of the constitutional structure alone undefended 

would serve only to accelerate the flight of power from

the legislative to the executive branch, turning the latter

into a vortex of authority that was constitutionally reserved for the people’s representatives in order to protect

their liberties. 

III 

A 

Returning to SORNA with this understanding of our

charge in hand, problems quickly emerge. Start with this 

one: It’s hard to see how SORNA leaves the Attorney

General with only details to fill up. Of course, what qualifies as a detail can sometimes be difficult to discern and, 

—————— 

77 Stern v. Marshall, 564 U. S. 462, 484 (2011); Plaut v. Spendthrift 

Farm, Inc., 514 U. S. 211, 225–226 (1995). 78 Clinton v. City of New York, 524 U. S. 417, 449 (1998). 79 INS v. Chadha, 462 U. S. 919 (1983). 80 Free Enterprise Fund v. Public Company Accounting Oversight Bd., 

561 U. S. 477, 496–497 (2010); Lucia v. SEC, 585 U. S. ___ (2018). 81 Clinton, 524 U. S., at 452 (Kennedy, J., concurring). 
 

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GORSUCH, J., dissenting 

as we’ve seen, this Court has upheld statutes that allow 

federal agencies to resolve even highly consequential

details so long as Congress prescribes the rule governing

private conduct. But it’s hard to see how the statute 

before us could be described as leaving the Attorney General with only details to dispatch. As the government

itself admitted in Reynolds, SORNA leaves the Attorney

General free to impose on 500,000 pre-Act offenders all of

the statute’s requirements, some of them, or none of them. 

The Attorney General may choose which pre-Act offenders 

to subject to the Act. And he is free to change his mind at 

any point or over the course of different political administrations. In the end, there isn’t a single policy decision 

concerning pre-Act offenders on which Congress even tried 

to speak, and not a single other case where we have upheld executive authority over matters like these on the 

ground they constitute mere “details.” This much appears 

to have been deliberate, too. Because members of Congress could not reach consensus on the treatment of preAct offenders, it seems this was one of those situations 

where they found it expedient to hand off the job to the 

executive and direct there the blame for any later problems that might emerge.

Nor can SORNA be described as an example of conditional legislation subject to executive fact-finding. To be 

sure, Congress could have easily written this law in that 

way. It might have required all pre-Act offenders to register, but then given the Attorney General the authority to

make case-by-case exceptions for offenders who do not 

present an “‘imminent hazard to the public safety’” comparable to that posed by newly released post-Act offenders.82 It could have set criteria to inform that determination, too, asking the executive to investigate, say, whether 

—————— 

82Cf. Touby, 500 U. S., at 166. 
 

 

 

24 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

an offender’s risk of recidivism correlates with the time 

since his last offense, or whether multiple lesser offenses

indicate higher or lower risks than a single greater 

offense. 

But SORNA did none of this. Instead, it gave the Attorney General unfettered discretion to decide which requirements to impose on which pre-Act offenders. The 

Attorney General’s own edicts acknowledge the considerable policy-making powers he enjoys, describing his rules 

governing pre-Act offenders as “‘of fundamental importance to the initial operation of SORNA, and to its

practical scope . . . since [they] determin[e] the applicability of SORNA’s requirements to virtually the entire existing sex offender population.’”83 These edicts tout, too, the 

Attorney General’s “discretion to apply SORNA’s requirements to sex offenders with pre-SORNA convictions if he 

determines (as he has) that the public benefits of doing so

outweigh any adverse effects.”84 Far from deciding the

factual predicates to a rule set forth by statute, the Attorney General himself acknowledges that the law entitles 

him to make his own policy decisions.

Finally, SORNA does not involve an area of overlapping 

authority with the executive. Congress may assign the

President broad authority regarding the conduct of foreign

affairs or other matters where he enjoys his own inherent 

Article II powers. But SORNA stands far afield from any 

of that. It gives the Attorney General the authority to 

“prescrib[e] the rules by which the duties and rights” of 

citizens are determined, a quintessentially legislative 

power.85 

Our precedents confirm these conclusions. If allowing 

—————— 

83 75 Fed. Reg. 81850 (quoting 72 Fed. Reg. 8896). 

84 75 Fed. Reg. 81850. 

85The Federalist No. 78, at 465 (Hamilton); see also Part II–A, supra. 
 

 

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GORSUCH, J., dissenting 

the President to draft a “cod[e] of fair competition” for 

slaughterhouses was “delegation running riot,” then it’s

hard to see how giving the nation’s chief prosecutor the

power to write a criminal code rife with his own policy 

choices might be permissible.86 And if Congress may not

give the President the discretion to ban or allow the interstate transportation of petroleum, then it’s hard to see 

how Congress may give the Attorney General the discretion to apply or not apply any or all of SORNA’s requirements to pre-Act offenders, and then change his mind at

any time.87 If the separation of powers means anything, it

must mean that Congress cannot give the executive

branch a blank check to write a code of conduct governing 

private conduct for a half-million people.

The statute here also sounds all the alarms the founders 

left for us. Because Congress could not achieve the consensus necessary to resolve the hard problems associated

with SORNA’s application to pre-Act offenders, it passed

the potato to the Attorney General. And freed from the 

need to assemble a broad supermajority for his views, the 

Attorney General did not hesitate to apply the statute 

retroactively to a politically unpopular minority. Nor 

could the Attorney General afford the issue the kind of 

deliberative care the framers designed a representative 

legislature to ensure. Perhaps that’s part of the reason 

why the executive branch found itself rapidly adopting

different positions across different administrations. And 

because SORNA vested lawmaking power in one person 

rather than many, it should be no surprise that, rather 

than few and stable, the edicts have proved frequent and 

shifting, with fair notice sacrificed in the process. Then, 

too, there is the question of accountability. In passing this 

—————— 

86 Schechter Poultry, 295 U. S., at 552–553 (Cardozo, J., concurring). 87 Panama Refining, 293 U. S., at 430. 
 

 

26 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

statute, Congress was able to claim credit for “comprehensively” addressing the problem of the entire existing population of sex offenders (who can object to that?), while in

fact leaving the Attorney General to sort it out. 

It would be easy enough to let this case go. After all, sex 

offenders are one of the most disfavored groups in our

society. But the rule that prevents Congress from giving

the executive carte blanche to write laws for sex offenders 

is the same rule that protects everyone else. Nor is it hard 

to imagine how the power at issue in this case—the power

of a prosecutor to require a group to register with the 

government on pain of weighty criminal penalties—could 

be abused in other settings. To allow the nation’s chief 

law enforcement officer to write the criminal laws he is 

charged with enforcing—to “‘unit[e]’” the “‘legislative and 

executive powers . . . in the same person’”—would be to

mark the end of any meaningful enforcement of our separation of powers and invite the tyranny of the majority

that follows when lawmaking and law enforcement responsibilities are united in the same hands.88 

Nor would enforcing the Constitution’s demands spell 

doom for what some call the “administrative state.” The 

separation of powers does not prohibit any particular

policy outcome, let alone dictate any conclusion about the 

proper size and scope of government. Instead, it is a 

procedural guarantee that requires Congress to assemble

a social consensus before choosing our nation’s course on

policy questions like those implicated by SORNA. What is 

more, Congress is hardly bereft of options to accomplish 

all it might wish to achieve. It may always authorize 

executive branch officials to fill in even a large number of

details, to find facts that trigger the generally applicable 

rule of conduct specified in a statute, or to exercise non- 

—————— 

88The Federalist No. 47, at 302. 
 

 

Cite as: 588 U. S. ____ (2019) 27 

GORSUCH, J., dissenting 

legislative powers. Congress can also commission agencies

or other experts to study and recommend legislative language. Respecting the separation of powers forecloses no 

substantive outcomes. It only requires us to respect along

the way one of the most vital of the procedural protections 

of individual liberty found in our Constitution. 

B 

What do the government and the plurality have to say 

about the constitutional concerns SORNA poses? Most 

everyone, the plurality included, concedes that if SORNA

allows the Attorney General as much authority as we have

outlined, it would present “a nondelegation question.”89 So 

the only remaining available tactic is to try to make this

big case “small-bore”90 by recasting the statute in a way

that might satisfy any plausible separation-of-powers test.

So, yes, just a few years ago in Reynolds the government

represented to this Court that SORNA granted the Attorney General nearly boundless discretion with respect to 

pre-Act offenders. But now, faced with a constitutional 

challenge, the government speaks out of the other side of 

its mouth and invites us to reimagine SORNA as compelling the Attorney General to register pre-Act offenders “to 

the maximum extent feasible.” And, as thus reinvented, 

the government insists, the statute supplies a clear statement of legislative policy, with only details for the Attorney General to clean up. 

But even this new dream of a statute wouldn’t be free 

from doubt. A statute directing an agency to regulate 

private conduct to the extent “feasible” can have many

possible meanings: It might refer to “technological” feasibility, “economic” feasibility, “administrative” feasibility, 

—————— 

89 Ante, at 6. 90 Ante, at 17. 
 

 

28 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

or even “political” feasibility. Such an “evasive standard” 

could threaten the separation of powers if it effectively 

allowed the agency to make the “important policy choices”

that belong to Congress while frustrating “meaningful

judicial review.”91 And that seems exactly the case here, 

where the Attorney General is left free to make all the 

important policy decisions and it is difficult to see what 

standard a court might later use to judge whether he 

exceeded the bounds of the authority given to him. 

But don’t worry over that; return to the real world. The 

bigger problem is that the feasibility standard is a figment 

of the government’s (very recent) imagination. The only

provision addressing pre-Act offenders, §20913(d), says 

nothing about feasibility. And the omission can hardly be 

excused as some oversight: No one doubts that Congress 

knows exactly how to write a feasibility standard into law 

when it wishes.92 Unsurprisingly, too, the existence of 

some imaginary statutory feasibility standard seemed to 

have escaped notice at the Department of Justice during

the Attorney General’s many rulemakings; in those proceedings, as we have seen, the Attorney General has 

repeatedly admitted that the statute affords him the 

authority to “balance” the burdens on sex offenders with

“public safety interests” as and how he sees fit.93 

Unable to muster a feasibility standard from the only

statutory provision addressing pre-Act offenders, the 

plurality invites us to hunt in other and more unlikely 

corners. It points first to SORNA’s “[d]eclaration of purpose,” which announces that Congress, “[i]n order to pro- 

—————— 

91 Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 

448 U. S. 607, 676, 685–686 (1980) (Rehnquist, J., concurring in judgment). 92See, e.g., 42 U. S. C. §§1310(b)(2)(C), 1383b(e)(2)(B); 20 U. S. C. 

§3509; 49 U. S. C. §24201(a)(1). 93 75 Fed. Reg. 81851–81852. 
 

Cite as: 588 U. S. ____ (2019) 29 

GORSUCH, J., dissenting 

tect the public from sex offenders and offenders against 

children . . . establishes a comprehensive national system

for the registration of those offenders.”94 But nowhere is 

feasibility mentioned here either. In fact, this provision

doesn’t purport to guide the Attorney General’s discretion

at all. Instead, it simply declares what Congress believed 

the rest of the statute’s enacted provisions had already 

“establishe[d],” without the need for any action by the 

Attorney General. And by now surely we must all agree 

that broad and sweeping statements like these about “a 

statute’s ‘basic purpose’ are . . . inadequate to overcome

the words of its text regarding the specific issue under 

consideration.”95 While those adopting SORNA might

have declared that they hoped and wished for a “comprehensive national system,” the fact remains that the law

they actually adopted for pre-Act offenders leaves everything to the Attorney General. Hopes and dreams are not 

laws. 

Besides, even if we were to pretend that §20901 

amounted to a directive telling the Attorney General to 

establish a “comprehensive national system” for pre-Act 

offenders, the plurality reads too much into the word 

“comprehensive.” Comprehensive coverage does not mean 

coverage to the maximum extent feasible. “Comprehensive” means “having the attribute of comprising or including much; of large content or scope,” “[i]nclusive of; embracing,” or “[c]ontaining much in small compass;

compendious.”96 So, for example, a criminal justice system

may be called “comprehensive” even though many crimes 

go unpursued. And SORNA itself contains all sorts of 

—————— 

94 34 U. S. C. §20901. See also ante, at 11–12. 95 Mertens v. Hewitt Associates, 508 U. S. 248, 261 (1993) (emphasis 

deleted). 96 3 Oxford English Dictionary 632 (2d ed. 1989). 
 

 

 

 

 

30 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

coverage exceptions for post-Act offenders yet claims to 

comprehensively address them.97 In the same way, no 

reason exists why SORNA might not also claim to address 

pre-Act offenders “comprehensively” even though the

Attorney General is free to exercise his discretion to forgo

registration for some, many, or maybe all of them. The 

statute still “comprehensively” addresses these persons by 

indicating they must abide whatever rules an Attorney

General may choose. In all these ways, SORNA might be

said to address sex offenders past, present, and future in a 

way that “compris[es] or includ[es] much,” and that is “of 

large content or scope,” but in a way that nevertheless 

delegates important policy decisions to the executive

branch. 

Finding it impossible to conscript the statute’s declaration of purpose into doing the work it needs done, the

government and plurality next ask us to turn to SORNA’s 

definition of “‘sex offender.’”98 They emphasize that

SORNA defines a “sex offender” as “‘an individual who 

was convicted of a sex offense’”—and, they note, pre-Act

offenders meet this definition.99 Because pre-Act offenders

fall within the definition of “sex offender[s],” the government and plurality continue, it follows that the Attorney

General must ensure all of them are registered and subject to SORNA’s demands. 

That much, however, does not follow. To say that preAct sex offenders fall within the definition of “sex offenders” is merely a truism: Yes, of course, these people have

already been convicted of sex offenses under state law. 

But whether these individuals are also subject to federal

registration requirements is a different question entirely. 

—————— 

97See, e.g., 34 U. S. C. §§20911(7)(A)–(B), (8), 20915(a), (b)(1). 98 Ante, at 12–13. 99 Ibid. 
 

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GORSUCH, J., dissenting 

And as we have seen, the only part of the statute that 

speaks to pre-Act sex offenders—§20913(d)—makes plain 

that they are not automatically subject to all the Act’s

terms but are left to their fate at the hands of the Attorney

General. Look at it this way: If the statute’s definitional

section were really enough to command the registration of 

all sex offenders, the Act would have had no need to proceed to explain, as it does at great length, when post-Act 

sex offenders must register and when they need not. 

If that argument won’t work, the plurality points us to 

§20913(d)’s second clause, which grants the Attorney

General the authority “to prescribe rules for the registration of . . . sex offenders . . . who are unable to comply”

with the Act’s initial registration requirements.100 According to the plurality, this language suggests that Congress

expected the Attorney General to register pre-Act offenders to the maximum extent feasible. But, of course, this 

clause, too, says nothing of the sort. And the authority 

provided under §20913(d)’s first clause—which gives the

Attorney General the blanket authority “to specify the 

applicability of the requirements of this subchapter”—is 

additional to the authority granted under the second 

clause. So not only does the Attorney General have the

authority to prescribe rules for the registration of pre-Act

offenders under the second clause, he is free to specify

which statutory requirements he does and does not wish

to apply under the first clause. Far from suggesting a 

maximalist approach then, the second clause read in light

of the first only serves to underscore the breadth of the

Attorney General’s discretion. 

With so little in statutory text to work with, the government and the plurality “can’t resist” highlighting cer-

—————— 

100 Ante, at 14. 
 

 

32 GUNDY v. UNITED STATES 

GORSUCH, J., dissenting 

tain statements from the Act’s legislative history.101 But 

“legislative history is not the law.”102 Still less can committee reports or statements by individual legislators be 

used “to muddy clear statutory language” like that before 

us.103 And even taken on their own terms, these statements do no more than confirm that some members of 

Congress hoped and wished that the Attorney General

would exercise his discretion to register at least some preAct offenders. None of these snippets mentions a “feasibility” standard, and none can obscure the absence of such a

standard in the law itself. 

That leaves the plurality and the government to try to

fish its feasibility standard from our decision in Reynolds. 

But Reynolds would make a difference only if it bound us 

as a matter of stare decisis to adopt an interpretation

inconsistent with the statute’s terms. And, of course, it 

does no such thing. The government and the plurality 

submit that Reynolds was premised on an understanding 

that Congress intended the statute to apply to pre-Act 

offenders to the maximum extent feasible. To support 

their reading they point to Reynolds’ surmise that Congress “may well have thought [that there could be] practical problems” with applying SORNA to pre-Act offenders 

and for that reason left their registration obligations to be 

sorted out by the Attorney General.104 But speculation 

about some of Congress’s motives in adopting §20913(d) 

aside, Reynolds plainly understood the statute itself as

investing the Attorney General with sole power to decide 

whether and when to apply SORNA’s requirements to pre- 

—————— 

101See ante, at 13–14. 102 Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 

23). 103 Milner v. Department of Navy, 562 U. S. 562, 572 (2011). 104 Reynolds, 565 U. S., at 440–441. 
 

Cite as: 588 U. S. ____ (2019) 33 

GORSUCH, J., dissenting 

Act offenders.105 

* 

Nothing found here can come as a surprise. In Reynolds, the government told this Court that SORNA supplies 

no standards regulating the Attorney General’s treatment 

of pre-Act offenders. This Court agreed, and everyone

proceeded with eyes open about the potential constitutional

consequences; in fact, the dissent expressly warned that

adopting such a broad construction of the statute would 

yield the separation-of-powers challenge we face today.106 

Now, when the statute faces the chopping block, the government asks us to ignore its earlier arguments and

reimagine (really, rewrite) the statute in a new and narrower way to avoid its long-predicted fate. No wonder 

some of us are not inclined to play along. 

The only real surprise is that the Court fails to make

good on the consequences the government invited, resolving nothing and deferring everything. In a future case 

with a full panel, I remain hopeful that the Court may yet 

recognize that, while Congress can enlist considerable 

assistance from the executive branch in filling up details

and finding facts, it may never hand off to the nation’s 

chief prosecutor the power to write his own criminal code. 

That “is delegation running riot.”107 

—————— 

105 Id., at 445 (holding that “the Act’s registration requirements do 

not apply to pre-Act offenders until the Attorney General so specifies”); 

id., at 439 (rejecting argument that any SORNA requirements apply to

pre-Act offenders “before the Attorney General validly specifies” they

do); id., at 440–441 (observing that the Attorney General might conclude that “different federal registration treatment of different categories of pre-Act offenders” is “warranted”). 106See id., at 450 (Scalia, J., dissenting). 107 Schechter Poultry, 295 U. S., at 553 (Cardozo, J., concurring).