PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 13-2324

_____________

UNITED STATES OF AMERICA

v.

KEITH ALLEN COOPER, 

 Appellant 

_____________

On Appeal from the United States District Court

for the District of Delaware

District Court No. 1-12-cr-00067-001

District Judge: The Honorable Richard G. Andrews

Argued January 8, 2014

Before: SMITH, SHWARTZ, and SCIRICA,

Circuit Judges

(Filed: April 10, 2014)
2

Ilana H. Eisenstein [ARGUED]

Edward J. McAndrew

Office of the United States Attorney

1007 North Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

Counsel for Appellee

Edson A. Bostic

Daniel I. Siegel [ARGUED]

Office of Federal Public Defender

800 King Street

Suite 200 

Wilmington, DE 19801

Counsel for Appellant

Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003

Counsel for Amicus Appellant

________________

OPINION

________________

SMITH, Circuit Judge.

Keith Allen Cooper (“Cooper”) is a sex offender 

who was convicted of rape in Oklahoma and paroled 
3

prior to the enactment of the Sex Offender Registration 

and Notification Act (“SORNA” or the “Act”), Pub. L. 

No. 109-248, 120 Stat. 587, 590–611 (2006) (codified 

primarily at 18 U.S.C. § 2250 & 42 U.S.C. § 16901 et 

seq.). After Congress enacted SORNA, Cooper was 

convicted of failing to comply with the sex offender 

registration requirements set forth in SORNA. In 

bringing this appeal, Cooper invokes the nondelegation 

doctrine, challenging the constitutionality of the 

provision of SORNA in which Congress delegated to the 

Attorney General the authority to determine the 

applicability of the Act’s registration requirements to preSORNA sex offenders.

We conclude that SORNA does not violate the 

nondelegation doctrine. Accordingly, we will affirm 

Cooper’s conviction.

I

In 1999, Cooper was convicted in Oklahoma state 

court on three counts of rape in the first degree. Cooper 

was paroled in January 2006. As required by pre-SORNA 

law, he registered as a sex offender in Oklahoma on or 

around January 20, 2006. 

In July 2006, Congress enacted SORNA, which 

requires sex offenders to comply with specific 

registration requirements and to update registration 

information in the event of a change of name, address, 
4

employment, or student status. Pursuant to the 

promulgation of an administrative rule on February 28, 

2007, and subsequent issuance of a final rule, the 

Attorney General made SORNA’s registration 

requirements applicable to individuals (such as Cooper) 

who were convicted of sex offenses prior to the 

enactment of SORNA.

In or around early 2011, Cooper moved from 

Oklahoma to Delaware. Although SORNA required 

Cooper to notify authorities of this change in residence, 

Cooper did not provide either Oklahoma or Delaware 

authorities with his updated residence information, nor

did he separately register as a sex offender in Delaware 

after moving there.

In 2012, Cooper was arrested and charged with 

one count of failure to register as a sex offender, in 

violation of 18 U.S.C. § 2250(a), in the United States 

District Court for the District of Delaware. On November 

2, 2012, Cooper moved to dismiss the indictment on the 

basis that, inter alia, SORNA’s delegation of authority to 

the Attorney General to determine the applicability of the 

Act’s registration requirements to pre-SORNA sex 

offenders violates the nondelegation doctrine and thus is 

unconstitutional. The District Court denied Cooper’s 

motion to dismiss.

Cooper pled guilty but reserved his right to appeal 

from the denial of the motion to dismiss. The District 
5

Court sentenced him to eighteen months’ imprisonment, 

ten years of supervised release, and a special assessment 

of $100.00. Cooper then brought this timely appeal.

II

Congress enacted SORNA as Title I of the Adam 

Walsh Child Protection and Safety Act of 2006, Pub. L. 

No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006). 

As set forth in the statute’s declaration of purpose, 

Congress enacted SORNA “to protect the public from 

sex offenders and offenders against children” by 

“establish[ing] a comprehensive national system for the 

registration of [sex] offenders.” 42 U.S.C. § 16901.

SORNA “reflects Congress’ awareness that pre-Act 

registration law consisted of a patchwork of federal and 

50 individual state registration systems.” Reynolds v. 

United States, 132 S. Ct. 975, 978 (2012). Thus, “[t]he 

SORNA reforms are generally designed to strengthen and 

increase the effectiveness of sex offender registration and 

notification for the protection of the public, and to 

eliminate potential gaps and loopholes under the preexisting standards by means of which sex offenders could 

attempt to evade registration requirements or the 

consequences of registration violations.” The National 

Guidelines for Sex Offender Registration and 

Notification, 72 Fed. Reg. 30210-01, 30210 (May 30, 

2007).

SORNA specifies that all sex offenders “shall 
6

register, and keep the registration current,” in each state 

where the offender lives, works, or attends school. 42 

U.S.C. § 16913(a). When an offender changes his name, 

residence, employment, or student status, within three 

business days the offender is required to appear in person 

in at least one jurisdiction where the offender lives, 

works, or is a student to notify that jurisdiction of the 

change in registration information. 42 U.S.C. § 16913(c). 

SORNA requires that the jurisdiction receiving this 

information immediately provide it to all other 

jurisdictions in which the offender is required to register 

in order to achieve a comprehensive national registry. Id.

Relevant to this appeal, SORNA makes it a federal 

crime for any person who is required to register, and who 

travels in interstate or foreign commerce, to knowingly 

fail to register or to update registration. 18 U.S.C. 

§ 2250(a).

1 Once a sex offender is subject to SORNA’s 

 1 18 U.S.C. § 2250(a) provides: 
7

registration requirements, that offender can be convicted 

under § 2250 if he thereafter engages in interstate or 

foreign travel and then fails to register. See Carr v. 

United States, 560 U.S. 438, 447 (2010).

The statute defines “sex offender” to include

individuals who were convicted of sex offenses prior to 

the enactment of SORNA. 42 U.S.C. § 16911(1) 

(defining “sex offender” as “an individual who was 

convicted of a sex offense”); see also Reynolds, 132 S. 

Ct. at 978 (noting that SORNA “defines the term ‘sex 

offender’ as including these pre-Act offenders”). 

However, SORNA does not set forth the registration 

 

Whoever (1) is required to register under the 

Sex Offender Registration and Notification 

Act; (2)(A) is a sex offender as defined for 

the purposes of the Sex Offender 

Registration and Notification Act by reason 

of a conviction under Federal law (including 

the Uniform Code of Military Justice), the 

law of the District of Columbia, Indian tribal 

law, or the law of any territory or possession 

of the United States; or (B) travels in 

interstate or foreign commerce, or enters or 

leaves, or resides in, Indian country; and (3)

knowingly fails to register or update a 

registration as required by the Sex Offender 

Registration and Notification Act; shall be 

fined under this title or imprisoned not more 

than 10 years, or both.
8

procedures for pre-SORNA sex offenders. Instead, in 42 

U.S.C. § 16913(d), Congress delegated to the United 

States Attorney General the authority to determine 

whether SORNA’s registration requirements would apply 

retroactively to pre-SORNA sex offenders. 

Section 16913(d) provides:

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 or its implementation in a 

particular jurisdiction, and to prescribe rules 

for the registration of any such sex 

offenders . . . .

42 U.S.C. § 16913(d).

On February 28, 2007, pursuant to the authority 

delegated to it by § 16913(d), the Attorney General 

issued an immediately effective rule establishing that

“[t]he requirements [of SORNA] apply to all sex 

offenders, including sex offenders convicted of the 

offense for which registration is required prior to the 

enactment of the Act.” Applicability of the Sex Offender 

Registration and Notification Act, 72 Fed. Reg. 8894-01, 

8897 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3). The 

Attorney General subsequently issued proposed 

guidelines for the interpretation and implementation of 

SORNA on May 30, 2007, reiterating that SORNA’s 
9

registration requirements apply retroactively to preSORNA offenders. See The National Guidelines for Sex 

Offender Registration and Notification, 72 Fed. Reg. 

30210-01, 30212 (May 30, 2007). Additional rules, 

repeating that SORNA’s registration requirements apply 

to pre-SORNA sex offenders, were promulgated on July

2, 2008. See The National Guidelines for Sex Offender 

Registration and Notification, 73 Fed. Reg. 38030-01, 

38035–36 (July 2, 2008). The Attorney General 

subsequently issued a Final Rule, which became effective 

as of January 28, 2011. See Applicability of the Sex 

Offender Registration and Notification Act, 75 Fed. Reg. 

81849-01 (Dec. 29, 2010).2

III

The District Court had original jurisdiction 

pursuant to 18 U.S.C. § 3231. We have appellate 

jurisdiction pursuant to 28 U.S.C. § 1291. 

We exercise plenary review over this challenge to 

the constitutionality of SORNA. United States v. 

 2 Cooper does not contest that by the time he moved 

to Delaware in or around early 2011, the Attorney 

General had validly promulgated rules requiring preSORNA sex offenders to register and keep their 

registration current. Cooper challenges only the 

constitutionality of the section of SORNA that delegated 

the authority to promulgate such rules to the Attorney 

General.
10

Pendleton, 636 F.3d 78, 82 (3d Cir. 2011).

IV

Cooper’s sole argument on appeal is that his 

conviction should be vacated because Congress violated

the nondelegation doctrine when it delegated its authority 

to the Attorney General to determine the applicability of 

SORNA’s registration requirements to pre-SORNA sex 

offenders. See 42 U.S.C. § 16913(d).

The nondelegation doctrine “is rooted in the 

principle of separation of powers that underlies our 

tripartite system of Government.” Mistretta v. United 

States, 488 U.S. 361, 371 (1989). Article I, Section 1 of 

the Constitution provides: “All legislative powers herein 

granted shall be vested in a Congress of the United 

States.” U.S. Const. art. I, § 1. Thus, to safeguard the 

separation of powers enshrined in the Constitution, “‘the 

integrity and maintenance of the system of government 

ordained by the Constitution’ mandate that Congress 

generally cannot delegate its legislative power to another 

Branch.” Mistretta, 488 U.S. at 371–72 (quoting Field v. 

Clark, 143 U.S. 649, 692 (1892)).

Yet the history of the nondelegation doctrine 

reveals a wide gulf between the considerations rooted in 

the text of the Constitution and the jurisprudence that has 

since developed in the courts. In one of the first cases to 

give significant attention to the issue, Wayman v. 
11

Southard, 23 U.S. 1 (1825), the Supreme Court 

considered a constitutional challenge to Congress’

delegation to the judicial branch of authority to establish 

procedural rules for service of process and execution of 

judgments. Upholding the constitutionality of this 

delegation, Chief Justice Marshall distinguished between 

the nondelegable “powers which are strictly and 

exclusively legislative” and “those of less interest, in 

which a general provision may be made, and power given 

to those who are to act under such general provisions to 

fill up the details.” Id. at 42–43. Marshall’s opinion noted 

also that the line between the delegable and nondelegable 

powers of Congress “has not been exactly drawn,” id. at 

43, concluding that the delegation in that suit did not 

implicate impermissible delegation of Congress’ 

legislative powers.

A similar analysis is found in Field v. Clark, 143 

U.S. 649 (1892). That case involved a challenge to the 

constitutionality of an act authorizing the President to 

suspend tariff provisions for duty-free importation of 

certain goods in the event the President determined that 

such action was necessary to ensure reciprocal trade with 

foreign nations. The Supreme Court again recognized the 

importance of the prohibition against delegation of 

legislative power as essential to constitutional separation 

of powers. Id. at 692. However, the Court reasoned that 

the delegation raised no constitutional violation because 

the President was acting only as “the mere agent of the 
12

law-making department to ascertain and declare the event 

upon which [Congress’] expressed will was to take 

effect.” Id. at 693.

United States v. Grimaud, 220 U.S. 506 (1911), 

involved a nondelegation doctrine challenge to an act 

authorizing the executive branch to make regulations for 

the use and occupancy of forest reservations. Defendants 

were charged with violating regulations promulgated by 

the Secretary of Agriculture prohibiting the grazing of 

sheep on reservation land without permit. Upholding the 

delegation, the Court held: 

From the beginning of the government, 

various acts have been passed conferring 

upon executive officers power to make 

rules and regulations,—not for the 

government of their departments, but for 

administering the laws which did govern. 

None of these statutes could confer 

legislative power. But when Congress had 

legislated and indicated its will, it could 

give to those who were to act under such 

general provisions ‘power to fill up the 

details’ by the establishment of 

administrative rules and regulations, the 

violation of which could be punished by 

fine or imprisonment fixed by Congress, or 

by penalties fixed by Congress, or 

measured by the injury done.
13

Id. at 517. Thus, where a violation of an offense has been 

made punishable by Congress, the Court concluded, there 

is no constitutional violation in the coordinate branch 

establishing regulations governing implementation and 

execution of the law, so long as the coordinate branch 

“confin[es itself] within the field covered by the 

statute . . . in order to administer the law and carry the 

statute into effect.” Id. at 518.

From these early cases, the modern nondelegation 

doctrine took shape in J.W. Hampton, Jr., & Co. v. 

United States, 276 U.S. 394 (1928). In Hampton, the 

Supreme Court considered a challenge to the 

constitutionality of a tariff act in which Congress

delegated to the executive branch the authority to modify 

tariff levels when the President determined that 

prevailing rates were unequal between the United States 

and foreign countries. Upholding the constitutionality of 

the act, the Court emphasized the value of delegation of 

authority for the efficient operation of government. 

Nonetheless, the Court held that such delegated authority 

must be constrained by “defined limits, to secure the 

exact effect intended by [Congress’] acts of legislation,” 

and “the extent and character of that assistance must be 

fixed according to common sense and the inherent 

necessities of the governmental co-ordination.” Id. at 

406. In order to guide this analysis, Hampton established 

what became known as the “intelligible principle” test: 

“If Congress shall lay down by legislative act an 
14

intelligible principle to which the person or body 

authorized to fix such rates is directed to conform, such 

legislative action is not a forbidden delegation of 

legislative power.” Id. at 409. The Court determined that 

the delegation in that case raised no constitutional

problem, because the act merely authorized the President 

to carry out the purpose established by Congress and 

provided the Executive with an intelligible principle to 

guide this execution.

On only two occasions has the Court invalidated 

legislation based on the nondelegation doctrine, and both 

occurred in 1935.

3 First, in Panama Refining Co. v. Ryan, 

293 U.S. 388 (1935) (Hughes, C.J.), the Court 

invalidated Section 9(c) of the National Industrial 

Recovery Act of 1933, which authorized the President to 

prohibit the shipment of oil produced in excess of stateimposed quotas. The Court held that this portion of the 

Act was an impermissible delegation because it lacked 

any standard whatsoever to limit the President’s 

discretion:

Section 9(c) does not state whether or in 

what circumstances or under what 

conditions the President is to prohibit the 

 3 Thus, it has been said that the nondelegation 

doctrine “has had one good year, and 211 bad ones (and 

counting).” Cass Sunstein, Nondelegation Canons, 67 U. 

Chi. L. Rev. 315, 322 (2000).
15

transportation of the amount of petroleum or 

petroleum products produced in excess of 

the state’s permission. It establishes no 

criterion to govern the President’s course. It 

does not require any finding by the President 

as a condition of his action. The Congress in 

section 9(c) thus declares no policy as to the 

transportation of the excess production. So 

far as this section is concerned, it gives to 

the President an unlimited authority to 

determine the policy and to lay down the 

prohibition, or not to lay it down, as he may 

see fit. And disobedience to his order is 

made a crime punishable by fine and 

imprisonment.

Id. at 415. The Court concluded that this provision of the 

Act violated the constitutional maxim that “Congress 

manifestly is not permitted to abdicate or to transfer to 

others the essential legislative functions with which it is 

thus vested,” id. at 421, because it provided no guidance 

whatsoever to limit the discretion of the President in 

executing the power delegated to him. Id. at 430.

Similarly, in A.L.A. Schechter Poultry Corp. v. 

United States, 295 U.S. 495 (1935) (Hughes, C.J.), the 

Court struck down Section 3 of the National Industrial 

Recovery Act, which authorized the President to approve 

“codes of fair competition” for trades or industries, as an 

unconstitutional delegation of authority. The Court 
16

emphasized that the statute completely failed to define 

“fair competition” and thus impermissibly transferred to 

the executive branch the power to create law: “Congress 

cannot delegate legislative power to the President to 

exercise an unfettered discretion to make whatever laws 

he thinks may be needed or advisable for the 

rehabilitation and expansion of trade or industry.” Id. at 

537–38. 

Panama Refining and Schechter Poultry establish 

the “outer limits of [the] nondelegation precedents.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 

(2001). These decisions make clear that Congress cannot 

“provide[] literally no guidance for the exercise of 

discretion” and cannot “confer[] authority to regulate the 

entire economy on the basis of no more precise a 

standard than stimulating the economy by assuring ‘fair 

competition.’” Id.

But however bold these decisions may have been, 

they failed to alter the trajectory of the nondelegation 

doctrine. Shortly after the Hughes Court gave way to the 

Stone Court,

4 the case of Yakus v. United States, 321 

U.S. 414 (1944), upheld a delegation to the Price 

Administrator (an executive official appointed by the 

President) to fix commodity prices at a “generally fair 

 4 Chief Justice Hughes retired, and former Associate 

Justice Harlan Fiske Stone succeeded him as Chief 

Justice, in 1941.
17

and equitable” level to effectuate the objectives of the 

Emergency Price Control Act. The Court noted that 

Congress had enacted the Emergency Price Control Act

“in pursuance of a defined policy and required that the 

prices fixed by the Administrator should further that 

policy and conform to standards prescribed by the Act.” 

Id. at 423. Distinguishing Schechter Poultry, which 

prescribed no method for attaining the objective sought 

by Congress, the majority concluded that “Congress has 

stated the legislative objective, has prescribed the method 

of achieving that objective . . . and has laid down 

standards to guide the administrative determination” in 

exercising the delegated authority. Id. at 423. Further, the 

Court announced that invalidation of the delegation 

would only be proper if the act had a total “absence of 

standards for the guidance of the Administrator’s action, 

so that it would be impossible in a proper proceeding to 

ascertain whether the will of Congress has been obeyed . 

. . .” Id. at 426.

Writing in dissent, Justice Owen Roberts argued 

that the statute in Yakus was an unconstitutional 

delegation of congressional power. In Justice Roberts’s 

view, “the Act sets no limits upon the discretion or 

judgment of the Administrator. His commission is to take 

any action with respect to prices which he believes will 

preserve what he deems a sound economy . . . .” Yakus, 

321 U.S. at 451 (Roberts, J., dissenting). Justice Roberts 

plaintively argued that, in effect, the majority’s decision 
18

“le[ft] no doubt that [Schechter Poultry] is now 

overruled.” Id. at 452 (Roberts, J., dissenting). However, 

the fate of Schechter Poultry that Justice Roberts 

predicted did not come to pass. The Supreme Court’s 

continued attention to Panama Refining and Schechter 

Poultry signals that—while their continued existence is 

hardly robust—they nonetheless have continuing 

precedential force. See, e.g., Whitman, 531 U.S. at 474–

75; Mistretta, 488 U.S. at 373 n.7.

In a similar move away from Panama Refining and 

Schechter Poultry, American Power & Light Co. v. 

Securities & Exchange Comm’n, 329 U.S. 90 (1946), 

addressed a nondelegation challenge to Section 11 of the 

Public Utility Holding Company Act, which authorized

the Securities and Exchange Commission to require 

companies to take steps the Commission deemed 

necessary to prevent holding companies from “unduly or 

unnecessarily complicat[ing] the [holding-company 

system] structure” or “unfairly or inequitably 

distribut[ing] voting power among security holders.” Id.

at 97. Rejecting the contention that these phrases had no 

meaning (and thus provided no directives to guide the 

delegation of authority), the Court suggested that the 

larger context of the act itself could imbue these terms 

with sufficient meaning to guide the Commission, i.e.

these terms “derive much meaningful content from the 

purpose of the Act, its factual background and the 

statutory context in which they appear.” Id. at 104. 
19

Looking to the “express recital of evils” in the earliest

sections of the statute, the policy declarations set forth by 

Congress, and standards and conditions established in 

sections of the statute apart from Section 11, the Court 

concluded “a veritable code of rules reveals itself for the 

Commission to follow in giving effect to the standards of 

§ 11(b)(2).” Id. at 105. Driven by a recognition that 

“judicial approval accorded these ‘broad’ standards for 

administrative action is a reflection of the necessities of 

modern legislation dealing with complex economic and 

social problems,” id., the Court determined that the 

statute posed no nondelegation problem.

The Supreme Court has not invalidated a statute 

for violating the nondelegation doctrine in the nearly 80 

years since Panama Refining and Schechter Poultry. In 

Mistretta v. United States, 488 U.S. 361 (1989), a 

criminal defendant challenged the constitutionality of 

Congress’ delegation of authority to the Sentencing 

Commission to promulgate determinative-sentence 

guidelines. The Court upheld this delegation on the basis 

of the intelligible principle test. Id. at 372–74. Mistretta 

reiterated that, in a modern society, delegations of 

authority are necessary to accommodate the technical and 

complex decisions that can accompany the 

implementation of legislation. Id. at 372. Upholding the 

delegation, the Court concluded that the grant of 

authority to the Sentencing Commission contained 

sufficient guidance and details in order to pass 
20

constitutional muster. Id. at 374.

Under modern application of the nondelegation 

doctrine, 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, such legislative action is not a forbidden 

delegation of legislative power.” Mistretta, 488 U.S. at 

372 (quoting Hampton, 276 U.S. at 406) (brackets 

omitted); see also Whitman, 531 U.S. at 472 (2001) 

(noting that Congress may not abdicate legislative power,

but specifying that Congress may delegate 

“decisionmaking authority” to a coordinate branch of 

government as long as Congress lays down by legislative 

act an intelligible principle to which the coordinate 

branch is directed to conform). Under this test, a 

delegation is “constitutionally sufficient if Congress 

clearly delineates the general policy, the public agency 

which is to apply it, and the boundaries of this delegated 

authority.” Mistretta, 488 U.S. at 372–73 (quoting 

American Power & Light Co., 329 U.S. at 105). Thus, the 

Supreme Court has “‘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 474–75 

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

dissenting)). 
21

V

A. Cooper Urges Application of a “Meaningfully 

Constrains” Standard

Cooper argues that we should move the 

nondelegation jurisprudence in a new direction. Relying 

on Touby v. United States, 500 U.S. 160 (1991), and 

United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011), 

Cooper urges us to apply a heightened “meaningfully 

constrains” standard to assess the delegation to the 

Attorney General in SORNA, arguing that a more 

rigorous standard must apply when Congress delegates 

discretion to impose criminal liability. 

Whatever benefits may inhere in a heightened 

standard for cases in which Congress delegates authority 

to create criminal liability, we are mindful that the 

Supreme Court “has expressly refrained from deciding 

whether Congress must provide stricter guidance than a 

mere ‘intelligible principle’ when authorizing the 

Executive ‘to promulgate regulations that contemplate 

criminal sanctions.’” Amirnazmi, 645 F.3d at 575 

(quoting Touby, 500 U.S. at 165–66). The “meaningfully 

constrains” standard has been referenced in only a 

handful of cases, none of which set forth factors or a 

substantive analytical framework against which to assess 

whether a specific delegation satisfies that standard. In 

Amirnazmi, we did not resolve “the unsettled question of 

whether something more demanding than an ‘intelligible 
22

principle’ is necessitated within the context of delegating 

authority to define criminal conduct.” Id. at 577. We 

likewise decline to do so here. Until the Supreme Court 

gives us clear guidance to the contrary, we assess the 

delegation of authority to the Attorney General in 42 

U.S.C. § 16913(d) under an intelligible principle 

standard. 

B. Analysis Under the Intelligible Principle Test

Applying the intelligible principle test, we 

conclude that Congress did not violate the nondelegation 

doctrine in delegating responsibility to the Attorney 

General to determine the applicability of SORNA’s 

registration requirements for pre-Act offenders in 42 

U.S.C. § 16913(d). In enacting SORNA, Congress laid 

out the general policy, the public agency to apply this

policy, and the boundaries of the delegated authority. 

This is all that is required under the modern 

nondelegation jurisprudence. Mistretta, 488 U.S. at 372–

73.

SORNA contains a general policy goal to guide the 

Attorney General in applying the discretion delegated by 

the Act. The first section of SORNA makes clear that the 

Act’s aim is to establish a comprehensive national sex 

offender registry in order to protect children and the 

public at large from sex offenders. 42 U.S.C. § 16901. 

The Attorney General’s discretion, established in
23

§ 16913(d), is governed by this general policy statement.5

Although we acknowledge that SORNA’s policy

statement is broad and does not contain directives 

specifically aimed at the Attorney General, review of the 

history of the nondelegation doctrine reveals that far less 

precise policy statements have still passed muster. See, 

e.g., American Power & Light Co., 329 U.S. at 105; 

 5 We do not agree with the argument made by 

Cooper and the Amicus Curiae that our decision in 

United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013), 

indicates that SORNA’s general policy rationale is 

constitutionally insufficient. In Reynolds, we determined 

that the Attorney General failed to show good cause for 

waiving the Administrative Procedure Act’s notice and 

comment requirements in the issuance of the interim rule 

regarding retroactivity of SORNA’s registration 

requirements in February 2007. In so holding, we noted 

that the Attorney General’s restatement of SORNA’s 

public safety rationale by itself did not constitute good 

cause to ignore the advance comment period required by 

the Administrative Procedure Act. Id. at 512. Our 

reasoning in Reynolds is not directly applicable to this 

appeal. Here we assess the constitutionality of SORNA in 

light of Supreme Court precedent on the nondelegation 

doctrine. Thus, we decline to deviate from that precedent 

based on our discussion in Reynolds of the Attorney 

General’s action in issuing rules under the Administrative 

Procedure Act.
24

Yakus, 321 U.S. at 420–23.

Second, the intelligible principle test requires that 

Congress identify the recipient of the delegated authority. 

Section 16913(d) unambiguously designates the Attorney 

General as the recipient of the delegation. 42 U.S.C. 

§ 16913(d).

Finally, while § 16913(d) itself contains no 

limitations on the Attorney General’s discretion, we 

understand the discretion delegated to the Attorney 

General in § 16913(d) to be constrained by the legislative 

determinations that Congress made in other sections of 

SORNA. See American Power & Light Co., 329 U.S. at

104–05. In SORNA, Congress identified the crimes that 

require registration, 42 U.S.C. § 16911; where the 

offender must register, 42 U.S.C. § 16913(a); the time 

period in which registration must be completed, 42 

U.S.C. § 16913(b); the method of registration, 42 U.S.C. 

§ 16913(b)-(c); the information that sex offenders must 

provide in order to register, 42 U.S.C. § 16914(a); and 

the elements of the crime of failure to register, 28 U.S.C. 

§ 2250. Further, the boundaries of the Attorney General’s 

authority are constrained by the task delegated by 

Congress. In responding to the directive in Section 

16913(d), the Attorney General can only determine the 

specific question of whether SORNA’s registration 

requirements apply to pre-SORNA sex offenders.
25

VI

It may well be, as Justice Scalia has written, that in 

delegating this responsibility to the Attorney General, 

Congress “sail[ed] close to the wind with regard to the 

principle that legislative powers are nondelegable.” 

Reynolds v. United States, 132 S. Ct. 975, 986 (2012) 

(Scalia, J., dissenting). Indeed, we are puzzled as to why 

Congress decided to delegate to the Attorney General the 

authority to determine the applicability of SORNA’s 

registration requirements to pre-SORNA offenders. The 

decision to make SORNA’s registration requirements 

applicable to pre-Act offenders is a weighty one—

particularly for the class of pre-SORNA offenders 

affected by that decision. Although we find Congress’ 

delegation of this important decision curious at best, we 

hold that it does not amount to an unconstitutional 

abdication.

Under controlling nondelegation doctrine 

jurisprudence, the hurdle for the government in this case 

is not high.6 Applying the precedential authority on the 

 6 Each of our sister circuits to have considered the 

issue has concluded that SORNA does not violate the 

nondelegation doctrine. See, e.g., United States v. 

Goodwin, 717 F.3d 511, 516–17 (7th Cir. 2013), cert. 

denied, __ U.S. __, 134 S. Ct. 334 (2013); United States 

v. Kuehl, 706 F.3d 917, 919–20 (8th Cir. 2013); United 

States v. Parks, 698 F.3d 1, 7–8 (1st Cir. 2012), cert. 
26

nondelegation doctrine, we conclude that SORNA’s 

delegation to the Attorney General in 42 U.S.C. 

§ 16913(d) does not violate the nondelegation doctrine. 

Accordingly, we will affirm.

 

denied, __ U.S. __, 133 S. Ct. 2021 (2013); United States 

v. Rogers, 468 F. App’x 359, 362 (4th Cir. 2012) (not 

precedential), cert. denied, 133 S. Ct. 157 (2012); United 

States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United

States v. Guzman, 591 F.3d 83, 92–93 (2d Cir. 2010), 

cert. denied, 130 S. Ct. 3487 (2010); United States v. 

Whaley, 577 F.3d 254, 263–64 (5th Cir. 2009); United 

States v. Ambert, 561 F.3d 1202, 1213–14 (11th Cir. 

2009).