US Supreme Court to decide: Can a sex offender challenge SORNA rule?

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The justices of the U.S. Supreme Court considered this week whether a sex offender convicted before the enactment of the Sex Offender Registration and Notification Act has standing to challenge the constitutionality of the law and of an interim rule that retroactively applied the law to him.

The case, Reynolds. v. U.S., involves Billy Joe Reynolds, who was charged with knowingly failing to register and update a registration, in violation of SORNA.

He moved to dismiss the indictment, arguing that the interim rule, which was issued by the U.S. attorney general, was unconstitutional. The district court denied his motion, and he pleaded guilty under a conditional agreement that preserved his right to appeal.

On appeal, he again challenged the constitutionality of SORNA and the interim rule, and also argued that his guilty plea should be invalidated because he was innocent.

The 3rd Circuit rejected his arguments and affirmed the conviction.

The U.S. Supreme Court granted his petition for certiorari.

No notice and comment

Candace Cain, a Pittsburgh-based assistant federal public defender, argued that the interim rule required Reynolds to register as a sex offender. Because of his personal stake, she said, he has standing to challenge the rule even if he wouldn’t have standing to challenge SORNA itself.

“Action by the attorney general was needed to bring offenders like Mr. Reynolds into the new system,” Cain said.

When Cain noted that the interim rule was adopted without notice and comment, Justice Ruth Bader Ginsburg asked what effect that had on the rule.

“You say [the rule is] invalid because there was no notice and comment?” Ginsburg asked.

“That’s right your honor,” Cain said, seeming to lose track of her argument.

Chief Justice John G. Roberts tried to come to Cain’s aid.

“No, that’s not. No,” Roberts said. “Your argument as I understand it is there was no notice and comment when [the attorney general] issued the interim rule [and] if there had been notice and comment, you would have jumped in with comments that would have convinced the attorney general not to apply the rule to your client.”

“That’s right,” Cain said.

Justice Antonin Scalia interjected to help her more.

“And your argument is further that without the rule, SORNA doesn’t exist, right?” Scalia asked.

“For our client,” Cain said.

‘Complete control of the light switch’?

Melissa Arbus Sherry, assistant to the U.S. solicitor general, argued that Congress vested enforcement authority directly in SORNA itself, not the interim rule adopted by the attorney general, and therefore the defendant has no standing to challenge it.

“In petitioner’s view, the attorney general has full and complete control of the light switch [and] Congress didn’t do anything but leave it for the attorney general to simply turn the lights on,” Sherry said. “We don’t think that is right.”

“Your theory of what the attorney general did here, as you put it in your [brief], was confirm the applicability of SORNA, right?” asked Roberts.

“One of the things he did was confirm,” Sherry said.

“Did you have any other example where an attorney general confirms the applicability of a criminal law?” Roberts asked.

“I don’t know if I would say confirm,” Sherry said. “There are certainly other examples where the attorney general has had authority and exercised authority to define certain aspects of criminal law,” Sherry said.

“I am talking about straightforward confirming, [which] is what you say happened here,” Roberts pressed.

“Confirming? I don’t know if I have one in a criminal context exactly,” Sherry said, adding: “If Congress had wanted the attorney general to decide whether or not the registration requirements [had] any operative effect going forward, presumably it would have told the attorney general that he needed to do something.”

A decision is expected later this term.