REYNOLDS v. UNITED STATES
Billy Joe Reynolds pleaded guilty to one count of knowingly failing to register and update a registration, in violation of the Sex Offender Registration and Notification Act (SORNA). On appeal, he challenged the constitutionality of SORNA and the legality of the Interim Rule implementing that law. He also argued that his guilty plea should be invalidated because he is "actually innocent" of violating SORNA's registration requirements. The United States Court of Appeals for the Third Circuit rejected his arguments and affirmed the conviction.
1. Does Reynolds have standing under SORNA to raise claims concerning the Attorney General's Interim Rule?
2. Is review by the Court necessary to resolve a split among the circuit courts?
Legal provision: Sex Offender Registration and Notification Act (SORNA)
Yes and yes. In a 7-2 decision written by Justice Stephen Breyer, the Court held that without an affirmative action by the Attorney General, pre-act offenders would not be obligated to register under SORNA. Hence, the Interim Rule must be valid for Reynolds to fall within SORNA’s authority and there remains a justiciable question. Breyer looked to the relevant text of SORNA, which mandates that sex offenders register with the state and keep their registration current when moving to a different state. The act also stated, however, that the Attorney General has the authority to specify the applicability of SORNA with respect to sex offenders convicted prior to SORNA’s enactment. He noted Congress’ use of the word “applicability” as opposed to “nonapplicability”, inferring that Congress wanted to give the Attorney General the discretion to apply SORNA to pre-act offenders, not the authority to make exceptions to SORNA. He reasoned, in part, that Congress wished to give the Justice Department some leeway with SORNA’s applicability, given that the Justice Department is tasked with the act’s enforcement. The Court therefore reversed the Third Circuit’s decision and remanded the case to determine if the Attorney General's Interim Rule is a valid specification.
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
BILLY JOE REYNOLDS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the third circuit
[January 23, 2012]
Justice Breyer delivered the opinion of the Court.
The federal Sex Offender Registration and Notification Act (Act), 120Stat. 590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III), requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries. §§16912(a), 16913–16914, 16919(a) (2006 ed.). The Act makes it a crime for a person who is “required to register” under the Act and who “travels in interstate or foreign commerce” knowingly to “fai[l] to register or update a registration . . . .” 18 U. S. C. §2250(a). The question before us concerns the date on which this federal registration requirement took effect with respect to sex offenders convicted before the Act became law.
The Act defines the term “sex offender” as including these pre-Act offenders. 42 U. S. C. §16911(1); see Carr v. United States, 560 U. S. ___, ___ (2010) (slip op., at 7). It says that “[a] sex offender shall register.” §16913(a). And it further says that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements . . . to sex offenders convicted before the enactment of this chapter . . . .” §16913(d) (emphasis added). In our view, these provisions, read together, mean that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply. We reverse a Court of Appeals determination that, in effect, holds the contrary.I A
The new federal Act reflects Congress’ awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems. See 73 Fed. Reg. 38045 (2008). The Act seeks to make those systems more uniform and effective. It does so by repealing several earlier federal laws that also (but less effectively) sought uniformity; by setting forth comprehensive registration-system standards; by making federal funding contingent on States’ bringing their systems into compliance with those standards; by requiring both state and federal sex offenders to register with relevant jurisdictions (and to keep registration information current); and by creating federal criminal sanctions applicable to those who violate the Act’s registration requirements. 18 U. S. C. §2250(a) (criminal provision); 42 U. S. C. §§16911(10), 16913–16916 (2006 ed. and Supp. III) (registration requirements); §16925 (federal funding); §129, 120Stat. 600 (repeal of earlier laws).
The Act’s criminal penalty applies to “[w]ho[m]ever . . . is required to register under [the Act].” 18 U. S. C. §2250(a). It says that such a person (a federal sex offender or a nonfederal sex offender who travels in interstate commerce) must not knowingly fail “to register or update a registration as required by [the Act].” Ibid. (emphasis added); see Appendix, infra, at 14.
The relevant registration requirements are set forth in an Act provision that states:
“Registry requirements for sex offenders
“(a) In general
“A sex offender [defined to include any offender who was convicted of a sex offense] shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. . . .
“(b) Initial registration
“The sex offender shall initially register [either] before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or [for those not sentenced to prison] not later than 3 business days after being sentenced . . . .
“(c) Keeping the registration current
“A sex offender shall [update his registration within] 3 business days after each change of name, residence, employment, or student status [by] appear[ing] in person in at least 1 jurisdiction involved . . . and inform[ing] that jurisdiction of all [relevant] changes . . . .
“(d) Initial registration of sex offenders unable to comply with subsection (b)
“The Attorney General shall have the authority to specify the applicability of the [registration] requirements . . . 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 and for other categories of sex offenders who are unable to comply with subsection (b).” 42 U. S. C. §16913 (emphasis added).
The new Act became law on July 27, 2006.
On February 28, 2007, the Attorney General promulgated an Interim Rule specifying that “[t]he requirements of [the Act] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 72 Fed. Reg. 8897 (codified at 28 CFR §72.3). Subsequently, the Attorney General promulgated further rules, regulations, and specifications. See 73 Fed. Reg. 38030 (2008); 75 Fed. Reg. 81849 (2010); 76 Fed. Reg. 1630 (2011). The present case focuses upon the applicability of the Act’s registration requirements to pre-Act offenders during the period between (1) July 27, 2006 (when the Act took effect) and (2) the moment when the Attorney General promulgated a valid rule specifying the registration requirements’ applicability, namely, February 28, 2007 (or a later date if the February 28 specification was invalid).B
Billy Joe Reynolds, the petitioner, is a pre-Act offender. He was convicted of a Missouri sex offense in October 2001; he served four years in prison; he was released in July 2005; he then registered as a Missouri sex offender; but he moved to Pennsylvania in September 2007 without updating his Missouri registration information (as Missouri law required) and without registering in Pennsylvania. A federal grand jury indicted him, charging him with, between September 16 and October 16, 2007, having “knowingly failed to register and update a registration as required by [the Act].” App. 13; see 18 U. S. C. §2250(a). In the Government’s view, Reynolds’ failure to update his address information when he moved to Pennsylvania violated the requirement that a “sex offender” update registration information within “3 business days after each change of . . . residence.” 42 U. S. C. §16913(c).
Reynolds moved to dismiss the indictment on the ground that in September and October 2007 the Act’s registration requirements had not yet become applicable to pre-Act offenders. He conceded that the Act had become law earlier (namely, in July 2006), and he conceded that the Attorney General had already (in February 2007) promulgated an Interim Rule specifying that the Act’s registration requirements were applicable to pre-Act offenders. But he claimed that the Interim Rule was invalid because it violated both the Constitution’s “nondelegation” doctrine and the Administrative Procedure Act’s (APA) requirement for “good cause” to promulgate a rule without “notice and comment” (as the Attorney General had done). See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529 (1935) (nondelegation doctrine); 5 U. S. C. §§553(b)(3)(B), (d)(3) (APA). Because the Interim Rule is invalid, he added, the law must treat him like a pre-Act offender who traveled interstate and violated the Act’s registration requirements before the Attorney General specified their applicability.
The District Court rejected on the merits Reynolds’ legal attack on the Interim Rule. But the Court of Appeals rejected Reynolds’ argument without reaching those merits. 380 Fed. Appx. 125 (2010). That court thought that the Act’s registration requirements apply to pre-Act offenders such as Reynolds (who was subject to a pre-existing state-law registration requirement) from the date of the new law’s enactment—even in the absence of any rule or regulation by the Attorney General specifying that the new registration requirements apply. That being so, the validity of the Interim Rule could make no legal difference, for the Act required Reynolds to follow the new federal registration requirements regardless of any rulemaking.
The Courts of Appeals have reached different conclusions about whether the Act’s registration requirements apply to pre-Act offenders prior to the time that the Attorney General specifies their applicability, i.e., from July 2006 until at least February 2007. Six Circuits have held that the Act’s registration requirements do not apply to pre-Act offenders unless and until the Attorney General so specifies. United States v. Johnson, 632 F. 3d 912, 922–927 (CA5 2011); United States v. Valverde, 628 F. 3d 1159, 1162–1164 (CA9 2010); United States v. Cain, 583 F. 3d 408, 414–419 (CA6 2009); United States v. Hatcher, 560 F. 3d 222, 226–229 (CA4 2009); United States v. Dixon, 551 F. 3d 578, 585 (CA7 2008); United States v. Madera, 528 F. 3d 852, 856–859 (CA11 2008) (per curiam). Five Circuits have held that they apply from the date of the Act’s enactment, and prior to any such specification, at least with respect to pre-Act offenders who had already registered under state law. United States v. Fuller, 627 F. 3d 499, 506 (CA2 2010); United States v. DiTomasso, 621 F. 3d 17, 24 (CA1 2010); United States v. Shenandoah, 595 F. 3d 151, 163 (CA3 2010); United States v. Hinckley, 550 F. 3d 926, 932 (CA10 2008); United States v. May, 535 F. 3d 912, 918–919 (CA8 2008). In light of this split, we agreed to consider the question.II A
The question before us is whether the Act requires pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them. We believe that it does not. For one thing, a natural reading of the textual language supports our conclusion. The text consists of four statements. See supra, at 3. Statement One says that “[a] sex offender shall register, and keep the registration current.” Statement Two says that a sex offender must initially register before completing his “sentence of imprisonment” (or, if the sentence does not involve imprisonment, within three days of conviction). Statement Three says that the sex offender must update a registration within three business days of any change of “name, residence, employment, or student status.” Statement Four says that “[t]he 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.”
Read naturally, the Fourth Statement modifies the First. It specifically deals with a subset (pre-Act offenders) of a broad general class (all sex offenders) to which the First Statement applies. And it therefore should control the Act’s application to that subset. See Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991) (specific statutory provision normally controls over one of more general application); see also Bloate v. United States, 559 U. S. ___, ___ (2010) (slip op., at 10) (same).
At the same time, the Fourth Statement says that the Attorney General has authority to specify the Act’s “applicability,” not its “nonapplicability.” And it consequently is more naturally read as conferring the authority to apply the Act, not the authority to make exceptions. That is how we normally understand a term such as “authority to specify” in the context of applying new rules to persons already governed by pre-existing rules. If, for example, the Major League Baseball Players Association and the team owners agreed that the Commissioner of Baseball “shall have the authority to specify the applicability” to the major leagues of the more stringent minor league drug testing policy, we should think that the minor league policy would not apply unless and until the Commissioner so specified.
For another thing, this reading of the Act efficiently resolves what Congress may well have thought were practical problems arising when the Act sought to apply the new registration requirements to pre-Act offenders. The problems arise out of the fact that the Act seeks to make more uniform a patchwork of pre-existing state systems. Doing so could require newly registering or re-registering “a large number” of pre-Act offenders. That effort could prove expensive. And it might not prove feasible to do so immediately. See 73 Fed. Reg. 38063 (recognizing these problems). Congress’ concern about these problems is reflected in the Act’s providing the States with three years to bring their systems into compliance with federal standards while permitting the Attorney General to extend that 3-year grace period to five years. 42 U. S. C. §16924.
These same considerations might have warranted different federal registration treatment of different categories of pre-Act offenders. Cf. 73 Fed. Reg. 38035–38036, and 38046–38047 (final Department of Justice guidelines allowing States to meet Act requirements without registering certain categories of pre-Act offenders); 76 Fed. Reg. 1635–1636 (supplemental guidelines allowing the same). At least Congress might well have so thought. And consequently, Congress might well have looked for a solution. Asking the Department of Justice, charged with responsibility for implementation, to examine these pre-Act offender problems and to apply the new registration requirements accordingly could have represented one efficient and desirable solution (though we express no view on Reynolds’ related constitutional claim). Cf. 42 U. S. C. §§16912(b), 16914(a)(7), (b)(7), 16919, 16941, 16945 (granting the Attorney General authority to administer various aspects of the Act). And that is just the solution that the Act’s language says that Congress adopted.
Finally, our reading of the Act takes Congress to have filled potential lacunae (created by related Act provisions) in a manner consistent with basic background principles of criminal law. The Second Statement, for example, says that a sex offender must register before completing his prison term, but the provision says nothing about when a pre-Act offender who completed his prison term pre-Act must register. Although a state pre-Act offender could not be prosecuted until he traveled interstate, there is no interstate requirement for a federal pre-Act offender. And to apply the Act to either of these pre-Act offenders from the date of enactment would require reading into the statute, silent on the point, some kind of unsaid equivalent (e.g., registering or updating within a “reasonable time” or “within three days of first post-Act travel in interstate commerce” or “as preexisting state law requires”).
Pre-Act offenders, aware of such complexities, lacunae, and difficulties, might, on their own, reach different conclusions about whether, or how, the new registration requirements applied to them. A ruling from the Attorney General, however, could diminish or eliminate those uncertainties, thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid. Cf., e.g., United States v. Lanier, 520 U. S. 259, 266 (1997) (noting that “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered”).B
The Government makes three principal arguments to the contrary. First, it says that our interpretation of the Act conflicts with one basic statutory purpose, namely, the “establish[ment of] a comprehensive national system for the registration of [sex] offenders,” 42 U. S. C. §16901, that includes offenders who committed their offenses before the Act became law. The Act reflects that purpose when it defines “sex offender” broadly to include any “individual who was convicted of a sex offense.” §16911(1). And we have recognized that purpose in stating that, in general, the Act’s criminal provisions apply to any pre-Act offender required to register under the Act who later travels interstate and fails to register. See Carr, 560 U. S., at ___ (slip op., at 7).
The Act’s history also reveals that many of its supporters placed considerable importance upon the registration of pre-Act offenders. See, e.g., H. R. Rep. No. 109–218, pt. 1, p. 24 (2005) (H. R. Rep.) (“[Twenty] percent of sexual offenders are ‘lost,’ and there is a strong public interest in finding them and having them register with current information to mitigate the risks of additional crimes against children”); 152 Cong. Rec. 15333 (2006) (statement of Sen. Cantwell) (“Child sex offenders have exploited this stunning lack of uniformity, and the consequences have been tragic. Twenty percent of the Nation’s 560,000 sex offenders are ‘lost’ because State offender registry programs are not coordinated well enough”); id., at 15338 (statement of Sen. Kyl) (“There currently are over 100,000 sex offenders in this country who are required to register but are ‘off the system.’ They are not registered. The penalties in this bill should be adequate to ensure that these individuals register”); id., at 13050 (statement of Sen. Frist) (“There are currently 550,000 registered sex offenders in the U. S. and at least 100,000 of them are missing from the system. Every day that we don’t have this national sex offender registry, these missing sex predators are out there somewhere”).
The difficulty with the Government’s argument, however, is that it overstates the need for instantaneous registration of pre-Act offenders. Our different reading, we concede, involves implementation delay. But that delay need not be long (the Attorney General issued his Interim Rule 217 days after the effective date of the new law). And that delay can be justified by the need to accommodate other Act-related interests. See supra, at 7–9.
Second, the Government suggests that our reading leads to an absurd result. As it points out, the Fourth Statement grants the Attorney General the “authority to specify” the registration requirements’ applicability not only to pre-Act offenders but also to those convicted prior to the “implementation” of the new Act “in a particular jurisdiction.” Some jurisdictions might not implement the Act for up to five years. See 42 U. S. C. §16924; see also Dept. of Justice, Office of Justice Programs, Justice Department Finds 24 Jurisdictions Have Substantially Implemented SORNA Requirements (July 28, 2011) (stating that as of July 28, 2011, 14 States had implemented the Act’s requirements), http://www.ojp.usdoj.gov/newsroom/ pressreleases/2011/SMART_PR-072811.htm (all Internet materials as visited Jan. 19, 2012, and available in Clerk of Court’s case file). Yet, the Government concludes, it is absurd to believe that Congress would have desired so long a delay in the application of its new registration requirements.
The problem with this argument, however, is that reading the two categories similarly (a matter which we need not decide) would not require a long delay in applying the registration requirements to post-Act offenders who committed a crime in a jurisdiction that is slow to implement the new requirements. At most, that reading would require the Attorney General to promulgate a rule applicable to all preimplementation offenders. That rule could specify that the Act’s preregistration provisions apply to some or to all those offenders. And it could do so quickly, well before a jurisdiction implements the Act’s requirements. Indeed, the Attorney General’s Interim Rule and the Department of Justice’s final guidelines, both issued before any jurisdiction implemented the Act’s requirements, state that the Act’s requirements apply to “all sex offenders,” including all preimplementation offenders. See 72 Fed. Reg. 8897 (codified at 28 CFR §72.3); 73 Fed. Reg. 38036; cf. Dept. of Justice, Office of Justice Programs, Justice Department Announces First Two Jurisdictions to Implement Sex Offender Registration and Notification Act (Sept. 23, 2009), http://www.ojp.usdoj.gov/newsroom/ pressreleases/2009/SMART09154.htm.
Third, the Government argues against our interpretation on the ground that the Act says only that the Attorney General “shall have the authority to specify the applicability” of the Act’s registration requirements to pre-Act offenders; it does not say that he “shall specify” or otherwise require him to do so. The Act’s language, the Government continues, consequently gives the Attorney General the power not to specify anything; that power is inconsistent with Congress’ intent to ensure the speedy registration of thousands of “lost” pre-Act offenders, supra, at 10; and we can avoid this result only by reading the Act’s registration requirements as applying immediately and on their own to all pre-Act offenders (though the Attorney General would have the power to make exceptions).
This argument bases too much upon too little. There is no reason to believe that Congress feared that the Attorney General would refuse to apply the new requirements to pre-Act offenders. See, e.g., H. R. Rep., at 23–24; Protecting Our Nation’s Children from Sexual Predators and Violent Criminals: What Needs To Be Done? Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 109th Cong., 1st Sess., 4–13 (2005); Office of the Press Sec’y, The White House, President Signs H. R. 4472, the Adam Walsh Child Protection and Safety Act of 2006 (July 27, 2006), http://georgewbush-whitehouse.archives.gov/ news/releases/2006/07/20060727-6.html. And there was no need for a mandatory requirement to avoid that unrealistic possibility. There is consequently no need to read the language unnaturally as giving the Attorney General the authority only to make exceptions from an implicit (unstated) rule that would otherwise apply the new registration requirements to all pre-Act offenders across the board and immediately.
Finally, we note that some lower courts have read the Attorney General’s specification authority as applying only to those pre-Act sex offenders unable to comply with the statute’s “initial registration” requirements. See 42 U. S. C. §16913(b). That, however, is not what the statute says. Rather, its Fourth Statement, §16913(d), says that the Attorney General has the authority (1) to specify the applicability of the registration requirements to pre-Act (and preimplementation) offenders, “and ” (2) to prescribe rules for their registration, “and ” (3) to prescribe registration rules for other categories of sex offenders who are unable to comply with the initial registration requirements. See supra, at 3. The word “and” means that the Attorney General’s authority extends beyond those pre-Act “sex offenders who are unable to comply” with the initial registration requirements.III
For these reasons, we conclude that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General so specifies. Whether the Attorney General’s Interim Rule sets forth a valid specification consequently matters in the case before us. And we reverse the Third Circuit’s judgment to the contrary. We remand the case for further proceedings consistent with this opinion.
18 U. S. C. §2250(a)
“(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.”
42 U. S. C. §16913
“Registry requirements for sex offenders
“(a) In general
“A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
“(b) Initial registration
“The sex offender shall initially register—(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
“(c) Keeping the registration current
“A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.
“(d) Initial registration of sex offenders unable to comply with subsection (b)
“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 and for other categories of sex offenders who are unable to comply with subsection (b).
“(e) State penalty for failure to comply
“Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.”
SUPREME COURT OF THE UNITED STATES
BILLY JOE REYNOLDS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the third circuit
[January 23, 2012]
Justice Scalia, with whom Justice Ginsburg joins, dissenting.
In my view, the registration requirements of the Sex Offender Registration and Notification Act (Act), 120Stat. 590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III), apply of their own force, without action by the Attorney General. The Act’s statement that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements” to pre-Act sex offenders, §16913(d), is best understood as conferring on the Attorney General an authority to make exceptions to the otherwise applicable registration requirements.
To begin with, I do not share the Court’s belief that to “specify the applicability” more naturally means, in the present context, to “make applicable” rather than to “make inapplicable.” See ante, at 7. The example the Court gives, the Commissioner of Baseball’s “ ‘authority to spec-ify the applicability’ ” of more stringent minor-league drug testing policies to the major leagues, ibid., is entirely inapt, because it deals with a policy that on its face is otherwise not applicable. Since the major leagues are not covered by the policies, the Commissioner’s “ ‘authority to specify [their] applicability’ ” can mean nothing else but the authority to render them applicable. What we have here, however, is a statute that states in unqualified terms that “a sex offender shall register,” §16913(a)—and that the Court rightly believes was meant to cover pre-Act offenders.* The issue is whether “specify the applicability” means that no pre-Act offenders need register unless the Attorney General says so, or rather that the Attorney General may excuse the unqualified requirement for pre-Act offenders. In that context, it seems to me that the latter meaning is more natural. One specifies the applicability of an application that already exists by describing or revising its contours.
I think it preferable to give “specify” this meaning not only because here it is more natural, but also because the alternative is to read the statute as leaving it up to the Attorney General whether the registration requirement would ever apply to pre-Act offenders, even though registration of pre-Act offenders was (as the Court acknowl-edges) what the statute sought to achieve. For the statute does not instruct the Attorney General to specify; it merely gives him “authority” to do so. In this respect, the provision at issue here stands in marked contrast to other provisions of the Act which clearly impose duties on the Attorney General. See, e.g., §16912(b) (“The Attorney General shall issue guidelines and regulations to interpret and implement this subchapter”); §16917(b) (“The Attorney General shall prescribe rules for the notification of [certain] sex offenders”); §16919(a) (“The Attorney General shall maintain a national database”); §16926(a) (“The Attorney General shall establish and implement a Sex Offender Management Assistance program”).
The Court’s response to this—that “there was no need for a mandatory requirement to avoid [the] unrealistic possibility” that the Attorney General would not specify, ante, at 12—seems to me a fine answer to the question “What mandatory requirements must a poorly drafted statute contain in order to be workable?” It is an inadequate answer, however, to the question that is relevant here: “Would Congress have written the provision this way if it wanted pre-Act offenders covered and did not think they were covered absent specification by the Attorney Gen-eral?” Intelligently drafted statutes make mandatory those executive acts essential to their functioning, whether or not those acts would likely occur anyway. It would have taken little effort (in fact, less effort) for Congress to write “the Attorney General shall specify the applicability” instead of “the Attorney General shall have authority to specify the applicability.” The latter formulation confers discretion, and it is simply implausible that the Attorney General was given discretion to determine whether coverage of pre-Act offenders (one of the purposes of the Act) should exist.
Indeed, it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable, see Whitman v. American Trucking Assns., Inc., 531 U. S. 457 –476 (2001); Loving v. United States, 517 U. S. 748 –777 (1996) (Scalia, J., concurring in part and concurring in judgment), and “[i]t is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U. S. 858, 864 (1989) . Construing the Act to give the Attorney General the power to reduce congressionally imposed requirements fits that bill, because such a power is little more than a formalized version of the time-honored practice of prosecutorial discretion.
The Court points out that there might have been need for “different federal registration treatment of different categories of pre-Act offenders,” ante, at 8, and that absent a “ruling from the Attorney General” pre-Act offenders would be uncertain “about whether, or how, the new registration requirements applied to them,” ante, at 9. But attending to those details would certainly come within the Attorney General’s authority to “specify” application of the Act—and so would the temporary suspension of registration requirements pending the Attorney General’s reso-lution of those details. And of course the uncertainty of where to register could form the basis for the Attorney General’s exercise of his discretion not to prosecute in individual cases. Neither problem, it seems to me, justifies the extraordinary interpretation that this Act does not apply to pre-Act offenders unless and until the Attorney General, in his discretion, says so.
For these reasons, I respectfully dissent.
1 * The Court reaches this conclusion based on an inquiry into legislative history. See ante, at 9–10. That inquiry is quite superfluous, however since the text of the Act itself makes clear that Congress sought to “establis[h] a comprehensive national system for the registration of [sex offenders],” 42 U. S. C. §16901, with “sex offender” defined broadly to “mea[n] an individual who was convicted of a sex offense,” §16911(1) (emphasis added).
ORAL ARGUMENT OF CANDACE CAIN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument next in case 10-6549, Reynolds v. United States.
Ms Cain: Mr. Chief Justice, and may it please the Court:
Recognizing that certain offenders convicted before enactment or implementation of SORNA would be unable to comply with SORNA's initial registration requirement, Congress included section 16913(d) delegating to the Attorney General the authority to determine whether and how to apply SORNA's registration requirements to those offenders.
Mr. Reynolds is one of those offenders because he was convicted, sentenced and released from prison a year before SORNA was enacted.
But for a valid Mr. Chief Justice, and may it exercise of the Attorney General's authority under subsection (d), Mr. Reynolds had no obligation to register SORNA, could not initially register under SORNA, and therefore was not subject to SORNA's criminal penalties.
Action by the Attorney General was needed to bring offenders like Mr. Reynolds into the new system, and because those implementing SORNA, in determining whether and how SORNA would be applied to pre-enactment offenders, would require time and consideration, Congress left the Wetterling Act registration law in place for 3 years to ensure that all offenders would be covered under the old law.
Chief Justice John G. Roberts: Was the -- is the Wetterling Act retroactive?
Ms Cain: --The Wetterling Act, Your Honor, was remaining in place for 3 years and had a sort of a sunset provision under--
Chief Justice John G. Roberts: No, no, I know.
That's going forward.
But was the requirement to register under the Wetterling Act, did that apply as of the enactment date or did that reach back?
Ms Cain: --Your Honor, actually the Wetterling Act was not effective for a year into the future.
Chief Justice John G. Roberts: So you think it only applied to that year?
Ms Cain: No, I'm sorry.
The Wetterling Act was enacted in 1996.
Chief Justice John G. Roberts: So if the offense were committed in 1994, did that person have to register under the Wetterling Act?
Ms Cain: They had to register, but there were no criminal penalties.
At that point it was a 1994 law called Wetterling, and 2 years after under the Lychner Act criminal penalties were added.
Our reading better accords with the text and congressional intent--
Justice Sonia Sotomayor: Could you clarify that answer?
The -- are you admitting that there were no criminal enforcement options for the Attorney General under the Wetterling Act for acts committed prior to 1996?
Is that what you're saying?
Ms Cain: --Your Honor, the Wetterling Act as it was enacted in 1994 was a registration requirement without criminal penalties.
In 1996 the Lychner Act was enacted amending Wetterling and added a criminal penalty, the Federal penalty of one-year punishment for failure to register.
Justice Sonia Sotomayor: And that included all individuals who had -- who had been convicted of sex abuse acts before 1996?
Ms Cain: I don't know.
Our reading better accords with the text of SORNA and congressional intent, but the government reading is simply not reasonable.
If SORNA would apply to all pre-enactment and pre-implementation offenders on day 1, and the Attorney General could then modify in the future, which would in fact -- in effect repeal SORNA as to some offenders, then you could have a situation where someone was convicted of an offense and then have to be covered under SORNA, and then later the AG could decide that that group was not required to register.
Justice Ruth Bader Ginsburg: Well, maybe -- maybe the Attorney General doesn't have that power.
But your position is that whether this behavior, not registering, is criminal or not, is left up to the Attorney General -- is left up to the executive.
Do we have other examples where Congress says, well, we don't know whether this should be a criminal offense, so we're going to leave it to the Attorney General?
It's quite different to say the Attorney General will implement it in the technical details, but to say that whether it's a criminal offense or not is up to the Attorney General, is there any other instance where that's so?
Ms Cain: Your Honor, I'm not aware of any, but we don't -- this is not what the Attorney General is doing.
This is -- SORNA is a civil registration requirement and the Attorney General's deciding whether someone has to register.
In order for a criminal indictment to be brought, a person would have to travel and then fail to register.
So it's really not actually deciding whether someone would be guilty of a crime or convicted of a crime or exposed to a crime.
Justice Anthony Kennedy: I -- maybe I just don't grasp the core of the case then.
I thought this was a criminal conviction and that you were arguing that it's a criminal conviction because the conduct that's prohibited by the statute was conduct that covered this class of people by order of the Attorney General under the interim regs.
Is that wrong?
Ms Cain: Your Honor, actually what we are seeking is the ability to contest the Attorney General's rule.
Justice Anthony Kennedy: I'm asking, isn't this is criminal conviction that resulted from the fact that your client was within the class of persons covered by the statute?
The government says they are covered anyway -- You say they are covered only because the Attorney General acted, but then you say it's a criminal -- it's a civil provision?
I -- I--
Ms Cain: --Well, Your Honor, it is -- failure to register and then travel -- I mean travel and then fail to register after you are obligated under SORNA to register is a crime, yes.
Justice Antonin Scalia: Well, I -- you know, my problem is, that's very strange.
I -- I find it very strange to -- to leave it up to the Attorney General whether something will be a crime or not.
It will be a crime if the Attorney General says so and it won't be a crime if he doesn't.
I mean, especially leave it up to the Attorney General, for Pete's sake; he's the prosecutor.
You know, it will be a crime if the prosecutor thinks it is and it won't be a crime if the prosecutor thinks it isn't.
I -- I don't know of any parallel and -- and I -- I think it's -- it's sailing close to the edge of unconstitutionality; whereas, what the other side claims is simply, it's a crime to begin with, but the Attorney General can make it not a crime.
That's sort of like prosecutorial discretion.
In -- in his -- in his judgment, if it shouldn't be a crime, you know -- I have trouble with that, too.
But it's a lot closer to prosecutorial discretion than -- than -- than what you're asking us to accept, that something is a crime only if the Attorney General says it's a crime.
seems to me very strange.
Ms Cain: Well, Your Honor, that's really That what the text says, and our reading -- but--
Justice Ruth Bader Ginsburg: But now we do -- the Attorney General has spoken.
The first time, you say it was ineffective because there was no notice and comment.
But from -- what is it -- August of 1908, we have a rule, a final rule, that did go through notice and comment.
So are we talking about, is this case simply about the period from February 1907 to August 1908, and that's -- that's all that's involved in this case, only those people?
Or are you contesting that after August 1908, you still have some kind of claim?
Ms Cain: --Well, Your Honor, our case does not involve the time period after August of 2008.
Justice Ruth Bader Ginsburg: So -- so this whole case is about what happens between February '07 and August '08, and that's the limit of it.
Ms Cain: Right.
Justice Ruth Bader Ginsburg: Because there was no rule at all before February '07 and there was a rule August '08?
So it's just that period this case is about?
Ms Cain: Yes.
Our client traveled in '07.
Justice Samuel Alito: It's the period from the enactment of SORNA until the adoption of the SMART guidelines, right?
That's what we're talking about?
Ms Cain: Well, Your Honor, if the SMART guidelines are deemed valid, yes.
That was -- in 2008.
Our client traveled in 2007.
And so the Attorney General's interim rule is the rule that would subject him to criminal liability.
Justice Sonia Sotomayor: Excuse me.
Let me go back to that question, counselor -- to that answer.
Let's assume we accepted the Solicitor General's understanding of the rule, that it was illegal to travel -- that you had to be -- had to register from the start of SORNA.
What challenge do you have left either to the interim rule in 2007 or to the final rules in 2008?
What -- what challenge could you conceivably make?
Ms Cain: Your Honor, if the statute applies from Day 1 we would still contest the interim rule for -- the Attorney General took action but did not exclude our client.
The Attorney General did what he was authorized to do--
Justice Sonia Sotomayor: What would be the basis of that challenge?
Ms Cain: --Pardon me?
Justice Sonia Sotomayor: What would have obligated him to take your client out of SORNA?
Ms Cain: The exercise of his discretion to not take him out--
Justice Sonia Sotomayor: Could you -- could you tell me why?
Ms Cain: --Because--
Justice Sonia Sotomayor: What would be an abuse of his discretion if he didn't take your client out?
Ms Cain: --Because he had exercised his discretion under subsection (d) and decided not to exclude our client from the--
Justice Sonia Sotomayor: But we're in a circular argument.
Ms Cain: --Statute.
Justice Sonia Sotomayor: What would have commanded him to take your client out?
Ms Cain: It would be his discretion.
Justice Sonia Sotomayor: You -- you would have to bring some sort of suit that said he abused his discretion.
On what basis would he have -- what would be your claim of abuse other than, I really want my client out?
Ms Cain: Well, that he would have standing.
That's what we're trying to -- we're trying to get standing to contest the interim rule.
Justice Sonia Sotomayor: But what impact would the interim rules have had on you?
Ms Cain: If the statute applied from Day 1 without the interim rule, we still would -- that is what the standing issue is about.
We're saying that the interim rule is the only rule that gave -- gave the Government the ability to include Mr. Reynolds in the prosecution.
Chief Justice John G. Roberts: You have a notice -- notice and comment claim, right?
Ms Cain: Yes.
Yes, Your Honor.
Justice Ruth Bader Ginsburg: But what -- but what you're challenging is interim rule, because there was no notice and comment.
So you would have had no challenge, not from the date of SORNA's enactment, but from the date of the rule that you're challenging -- and that rule was February '07.
Your challenge is to invalidity of the interim rule, right?
Ms Cain: That's right.
Justice Ruth Bader Ginsburg: Okay.
So -- but before there was an interim rule, you would have no such challenge.
Ms Cain: No, but the SORNA would not apply to Mr. Reynolds before then.
Justice Ruth Bader Ginsburg: You might have some other case, but this case is about a challenge to a rule as invalid.
That's -- that's -- as I understand it, so that had to be a rule in order for you to make the challenge.
Ms Cain: I'm sorry, I missed the last part.
Justice Ruth Bader Ginsburg: You are challenging the -- the Attorney General's first rule as invalid, the February '07 rule.
Ms Cain: That's right.
Justice Ruth Bader Ginsburg: --You say it's invalid because there was no notice and comment.
You have no challenge -- your challenge doesn't reach before that, because there was no rule before that.
So that you can -- the earliest point is when the rule was adopted, you're saying the rule was invalid.
So that's why I said the brackets are from when there was an allegedly invalid rule, which was in February '07, until when there's a valid rule, which is in August of '08.
Ms Cain: That's right, Your Honor.
Chief Justice John G. Roberts: No, that's not.
Your argument as I understand it is there was no notice and comment when he issued the interim rule.
Ms Cain: --Right.
Chief Justice John G. Roberts: 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.
Ms Cain: That's right.
Chief Justice John G. Roberts: Okay.
Justice Antonin Scalia: And your argument is further that without the rule, SORNA doesn't exist, right?
Ms Cain: For our client.
Justice Antonin Scalia: Right.
Ms Cain: He is unable to comply with the initial registration provision under (b) because he was released from prison a year before SORNA was enacted, so he could not meet either one of the descriptions of initial registration.
Justice Stephen G. Breyer: That doesn't mean -- that doesn't mean SORNA doesn't apply, it means 2250 didn't apply.
Ms Cain: That's right.
Justice Stephen G. Breyer: Is it that right.
Ms Cain: Well--
Justice Stephen G. Breyer: It might be a metaphysical, but it may be that Congress intended the statute to apply to people like your client, but the question is when the initial registration has to take place, and I took you as saying until the Attorney General acts, we don't know, so 2250 doesn't -- doesn't criminalize a failure until he can know when he's supposed to register.
Ms Cain: --Register under SORNA, that's right.
Justice Stephen G. Breyer: That's right.
Ms Cain: The problem is here that the prosecution -- the Attorney General's office is substituting a state registration for the initial registration under SORNA, and that's just not what the text says.
Justice Elena Kagan: Ms. Cain, why do you think Congress would have written the text in this way?
You said it was very complicated and Congress was worried about different problems, the way different registrations overhappened on each other but exactly what was so complicated?
Why couldn't Congress just have applied the statute to people in Mr. Reynold's situation itself?
Ms Cain: Well, even the government agrees in their brief that there are complications.
Justice Elena Kagan: I was going to ask the What are the government the same question.
What are the complications that Congress was so worried about?
Ms Cain: Some sex offenders, you know, from the various states, there were state laws that were varied amongst each other, and there was a federal Wetterling Act that had its own periods of registration and different requirements.
And I think that, um, one of the permutations, some of them are that some sex offenders never had to register in some states; some had been convicted before and had served out their time and no longer had to register; and some were released from prison, you know, before the enactment or implementation of SORNA.
And an example of a permutation that was going to have some cloth for consideration is the one that's sort of an example in a different context, in the federal register and in the government's brief which is that certain people who had served their time and were completely out of the system, if they got rearrested for a misdemeanor, the Attorney General decided that those individuals did not have to register for a state to be deemed substantially implemented with respect to SORNA.
And so that's an example of a type of decision, a complication that the Attorney General was particularly well-suited to deciding in making that determination.
Justice Sonia Sotomayor: Arrested for a misdemeanor to do what?
Ms Cain: Any arrest for a misdemeanor that would bring a previous offender back in the system, if that person was just convicted of a misdemeanor, they would not -- the state would not have to re-register them in order to be deemed substantially compliant with SORNA and get the firm grant money.
Justice Sonia Sotomayor: I thought Justice Kagan's question was, what would have stopped Congress from just saying: You have to register on the day of passage.
There was nothing to stop Congress from doing that, correct?
Ms Cain: They could have done that, but they were concerned about how you get the older conviction, the older pre-enactment people into the new system.
Justice Sonia Sotomayor: That's your reason for why they didn't do that.
They didn't make it automatic, correct?
That's your argument?
Ms Cain: Right.
They wanted to have a new registration, a new system that would start from a certain point that would bring in new requirements.
And the problem is how to get the people with the older convictions and the older registrations into the system.
And that would be done with initial registration.
But Mr. Reynolds--
Justice Elena Kagan: Well, why is -- Why is it easier for the Attorney General to do that by regulation than for Congress simply to do it by the statute itself?
What did they expect to happen in the regulatory process that would solve these problems for them?
Ms Cain: --Well, I think that it's more flexible to have a regulation, and takes perhaps less time than legislation to think of all the different permutations.
They don't know every state's laws and every state's capabilities.
And so it was more flexible.
And they could respond more quickly to changes.
Justice Ruth Bader Ginsburg: Well, it seems -- Is this case -- What would compliance entail other than simply telling the Missouri authority that he had to register, was registered in Missouri, telling Missouri authority that he was moving to another state.
That's all he had to do, right, to comply?
Ms Cain: Comply with Missouri's law?
The state law?
Justice Ruth Bader Ginsburg: To comply with the SORNA requirement, that he would have to tell the Missouri authority that he was moving to another state.
And then Missouri would have an obligation to tell that other state he's there.
Ms Cain: Well, Your Honor, that's -- Your question assumes that state registration would suffice for SORNA.
And respectfully, the -- SORNA was not enacted until--
Justice Ruth Bader Ginsburg: But I'm talking about SORNA has been enacted, and now he's moving after SORNA is enacted, right?
Ms Cain: --Right.
Justice Ruth Bader Ginsburg: Okay.
So SORNA is on the books.
He's registered in Missouri.
He's leaving the state to comply with SORNA.
What does he have to do other than tell the original state: I'm moving to another state?
Ms Cain: --Well, he would have to comply with the requirements of initial registration under SORNA.
Those contain more requirements than under the Missouri--
Justice Ruth Bader Ginsburg: Well, he can't comply with the initial registration because he committed a crime even before SORNA was enacted.
Ms Cain: --I'm just--
Justice Ruth Bader Ginsburg: But now, what would he have to do to be in compliance--
Ms Cain: --With Missouri law, with state law, would be to comply with Missouri law tell Missouri he is leaving and then go to Pennsylvania and comply with Pennsylvania law, perhaps.
And that's also not a SORNA registration; that's a registration under state law.
We know from Carr that SORNA is -- doesn't create an obligation until the statute's effective date.
And the statute's effective date is after a valid Attorney General regulation for purposes of people like Mr. Reynolds.
Justice Elena Kagan: Could you tell me this, Ms. Cain.
You may have said this, and I may just have missed it.
But under the new regulations, a man who's in the position of your client and who cannot initially register under (b), b just doesn't fit his circumstances, does he now have to initially register again, or does his initial registration stick and he just has to update it when he moves?
Ms Cain: The initial registration under SORNA could be updated.
The state registration that he may have already done in the past is not a SORNA registration.
He would have to register initially again, and that is a new registration.
And that would be what Congress intended, because their goal was to not have a patchwork of regulations and rules.
So it would be a new registration, but an update of a SORNA registration is certainly possible, yes.
Justice Ruth Bader Ginsburg: --Under the current regulation, under the 19 -- I mean the '08 regulations, wouldn't be enough to comply for somebody in his situation, to comply simply by telling his parole officer: I'm moving to the other state, under the regulation that says how this is implemented?
Ms Cain: Actually, Your Honor, no.
We actually don't know the answer to that question, because the Attorney General has not issued regulations instructing offenders what to do.
They have simply issued guidelines telling the states what they can do to substantially implement SORNA.
So we don't really know the answer to that question.
The point is that the requirement to initially register under SORNA was not effective until the Attorney General -- could not be effective until the Attorney General said so.
And that's what the statute says under (d).
And that if you look at how the government is reading the statue, you apply it from day one, but yet they have the ability to modify SORNA, which in effect means to repeal SORNA's effect as to someone in the future.
That also would cause a lot of complications, especially in the context I mentioned where someone with a misdemeanor, you know, may be part of the group that doesn't have to register in the future, but they had to at some point, and--
Justice Sonia Sotomayor: Let's -- Is there anything -- If I understand the Solicitor General's position, all your client had to do after SORNA was passed was after a reasonable amount of time, or upon his travel, to tell Missouri, which was his state of conviction, that he was moving.
Ms Cain: --If you -- They say that he was not part of the people that could register within a normal, I mean, a reasonable amount of time because of the state registration.
Justice Sonia Sotomayor: Right.
Ms Cain: But assuming that that wasn't the case, assuming he was, you know, just--
Justice Sonia Sotomayor: No, I'm not assuming that.
Ms Cain: --Okay.
Justice Sonia Sotomayor: Would he have been in compliance with SORNA under the final rules today, the interim rules when they were passed, or on the date that he left if he had when he traveled, or a reasonable time thereafter, told his state of conviction that he had moved?
Would that have been enough?
Ms Cain: No, Your Honor.
Justice Sonia Sotomayor: What does he have to do in addition to that under the interim or final rules?
Ms Cain: We don't know.
Because, again, the Attorney General has not issued regulations or guidelines telling offenders what to do.
They have only issued guidelines telling jurisdictions how they can substantially implement SORNA.
So it's not as though -- He cannot register under SORNA until the Attorney General specifies that he--
Justice Ruth Bader Ginsburg: That was the answer that you gave to my question, which was the same thing: Why isn't it sufficient now for him simply to tell his parole officer he's moving.
Ms Cain: --Oh, sorry.
It would not be sufficient.
I mean, it -- he has to initially register to register under SORNA.
And he can't do that until the Attorney General issued a valid rule, which -- we are contesting that the 2007 rule is not valid.
We're saying that our client has standing to make that challenge; we were denied the ability to do that below.
And I would like to reserve my time if there's no further questions.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF MELISSA ARBUS SHERRY ON BEHALF OF THE UNITED STATES
Ms Sherry: Mr. Chief Justice, and may it please the Court:
If I could start by answering your question, Your Honor, about the Wetterling Act, it was not retroactive.
It did not apply to pre-enactment conduct.
It defined a sex offender, unlike SORNA, as somebody who is convicted of a sex offense, and in guidelines issued after Wetterling and after several subsequent amendments to the Wetterling Act, the Attorney General interpreted it as only requiring States to register offenders that are convicted not only post-enactment, but post-implementation by the State.
And one such cite is--
Justice Antonin Scalia: Post what?
Ms Sherry: --Post-implementation by the States.
And so 61 Federal Register cite 15112 is And so just one example of that type of regulation.
And so when Congress enacted SORNA, it switched from "is convicted" to "was convicted" in order to include pre-enactment offenders.
Justice Kagan, to get to your question about why is it all so complicated, our answer is that it really is not.
There is no reason why it couldn't have applied on day 1 to all pre-enactment and pre-implementation offenders.
And to start off, when you look about all pre-enactment and pre-implementations, this is an incredibly large class.
There is existing sex offenders on day 1 and all existing sex offenders from many months and years going forward while the States proceed towards implementation.
Justice Stephen G. Breyer: So why--
Justice Elena Kagan: But then as I indicated.
Why would Congress have given you the authority to exempt people?
It seems to me that the -- the burden is on you in the exact same way it is on Ms. Cain.
Ms Sherry: In our view, what subsection (d) was, essentially, was a safety valve.
It wasn't something that Congress thought the Attorney General was going to need to use, but it was something that was there for the Attorney General should problems arise in the course of implementation.
Justice Samuel Alito: What would happen in -- in this situation: Someone is convicted of a sex offense before SORNA is enacted; the shortly after the statute is enacted the person moves to a new State, does not register; then after that the Attorney General exercising the authority that you say he has under -- exercising -- excuse me, exercising the authority under subsection (d), determines that SORNA shouldn't apply to people who were convicted of offenses before its enactment?
Would that person have committed a criminal offense?
Ms Sherry: I think at the -- at the time he acted, yes.
I suppose the Attorney General could decide whether or not he is going to apply his regulation prospectively or retrospectively.
But I think the important point is the same result is reached under Petitioner's view.
In Petitioner's view, the Attorney General has full and complete control of the light switch.
Congress didn't do anything, simply left it for the Attorney General to simply turn the lights on.
We don't think that's right for a number of different reasons, one of which is the way Congress that delegated authority to Attorney General in subsection (d).
Justice Samuel Alito: Well, if Congress wasn't sure whether it wanted -- whether it was appropriate to apply SORNA retroactively, and -- I just -- and therefore was willing to leave that to the Attorney General, then I don't understand why it would have made the Act applicable immediately upon enactment--
Ms Sherry: --Our--
Justice Samuel Alito: --pending a determination by the Attorney General.
Ms Sherry: --Our understanding is that Congress did know that it wanted to include as a general matter all pre-enactment -- and again, not pre-enactment but pre-implementation offenders as -- offenders as well, and I think we know that because when you look to the provisions that actually speak to what a sex offender was required to do under the Act -- and there are six such provisions -- they all start the same way; they say that the sex offender shall do something.
And it defines the sex offender as somebody who was convicted.
When you look at all six of those provisions on their face, they apply to all sex offenders so defined without any qualification.
And Petitioner's view is that despite that clear language, despite the lack of any qualification within those provisions, by virtue of subsection (d) what Congress is really saying is that nobody has to register until the Attorney General says otherwise.
Justice Stephen G. Breyer: --Well, so--
Justice Sonia Sotomayor: So how do they know where to register?
Do you agree with your adversary that -- that they have to register under SORNA?
Ms Sherry: No, they don't have to register under SORNA.
Justice Sonia Sotomayor: So how were they supposed to know when or how they would register until the Attorney General acted?
Ms Sherry: So, if I could break it up into a few classes.
Again, we are talking about pretty much -- actually we are talking about everybody on day 1.
And for a number of pre-enactment and pre-implementation offenders, they are still going to be in prison on the day that SORNA was enacted.
Justice Sonia Sotomayor: I'm not talking about those people.
Ms Sherry: Okay.
Justice Sonia Sotomayor: Not the people who can comply with (b).
Ms Sherry: Okay.
Justice Sonia Sotomayor: I'm talking about the people--
Ms Sherry: The people in the second group I was going to talk about are offenders like Reynolds, who have already registered before SORNA was enacted.
They are already initially registered.
It's the very same State registry system that's created -- that's SORNA.
There is no creation of any SORNA registry and the statute itself doesn't talk about a SORNA compliant registry.
To the contrary, it defines a sex offender registry in 16911, subsection 9.
It's on page 10A of our brief.
It defines a sex offender registry as a registry of sex offenders maintained by a jurisdiction.
So these are the same registries that have been in existence in all 50 States for the last decade.
So offenders like Reynolds don't have to do anything under (b); (b) simply doesn't apply to them.
They do however as I pointed out have to comply with the other provisions.
They do have to do what (c) requires, which is when Reynolds moved from Missouri to Pennsylvania, he had to tell somebody.
That is what (c) requires; it's what he was required to do even before SORNA was enacted; and what Congress did with respect to the subset of sex offenders that haven't already registered before SORNA but that need to get on the registry -- afterwards, because, for example, their sex offense wasn't covered before SORNA.
Chief Justice John G. Roberts: So your -- your argument is that requirements in the heading for 42 U.S.C. 16913, Registration Requirements For Sex Offenders, means something different than requirements in subsection (d), which the Attorney General can issue rules about, because you are saying although there is the requirement that they register and comply with (c) and all those other things, when it says that the Attorney General can issue regulations specifying the applicability of the requirements of this subchapter, that only meant the administration -- you know, provisions, not the general requirement that you register and keep current and all that?
Ms Sherry: No, I don't think that that is what we are saying.
What we view (d) is, essentially, is a safety valve.
It does give the Attorney General that authority with respect to requirements, going but going forward Congress has set the baseline; Congress has set the default--
Chief Justice John G. Roberts: It's a safety valve to release what?
Ms Sherry: --To release sex offenders if needed to -- to perhaps suspend certain registration requirements.
And let me give a couple of examples.
Chief Justice John G. Roberts: You are talking about sort of in the weeds, the little details, not the underlying requirement of registration, right?
Ms Sherry: No, I think it -- I think arguably it could be both.
Again I don't think this is something that Congress thought the Attorney General was necessarily going to have to exercise, and in fact the Attorney General has not done so.
Justice Elena Kagan: But does that mean, Ms. Sherry, that -- that the Attorney General could if he wanted to, for whatever reason, could exempt all pre-enactment offenders from SORNA?
Ms Sherry: I think as a theoretical matter, on its face, the delegation of authority in (d) is -- is quite broad and plenary.
Justice Elena Kagan: It would allow that.
So when you say it gave the Attorney General the ability to confirm or modify the requirement in section (a), you mean he could if he wanted to exempt all pre-enactment offenders?
Ms Sherry: --Again, I say in theory because I think like all delegations of authority, the Attorney General is certainly limited to acting in furtherance of the purpose of Congress, and here we know the--
Justice Antonin Scalia: We had a case involving the meaning of modify, and it doesn't -- doesn't mean repeal.
So he presumably couldn't suspend the whole thing.
Ms Sherry: --I -- I -- I do know what case you are talking about and I have read it, and that's certainly true.
Justice Elena Kagan: To confirm--
Chief Justice John G. Roberts: You want to share it with the rest of us?
Ms Sherry: I'm not saying I definitely remember the name.
I think it was MCI, but I -- I do know the case you are talking about.
I mean here the word is specify as opposed to modify, and I guess there could be an argument--
Justice Antonin Scalia: It authorized the FCC to modify the requirement to post rates, and the FCC simply eliminated the requirement to post rates, and we said that that was no good.
Ms Sherry: --And -- and I -- I suppose a similar argument could be made with respect to specify.
I don't think it necessarily has to be--
Justice Stephen G. Breyer: --Leaving the language aside, I would like to go back to what Justice Sotomayor was asking.
We are talking, it seems to me, about section 2250 -- He was a convicted of violating criminally that section -- So I have no problem about the statute section.
applying to all these people; it's a question of how it applies.
magine with me that we have an individual who was convicted a year ago, and sentenced to a 5-year term.
Does the statute apply to him?
Ms Sherry: --He was convicted a year ago.
Justice Stephen G. Breyer: Yes, correct.
Ms Sherry: --of a sex offense?
Justice Stephen G. Breyer: Yes, correct.
Ms Sherry: In our view the statute does apply.
Justice Stephen G. Breyer: Of course it does.
Of course it does.
Now he hasn't registered yet.
He is in jail for 4 more years.
So has he violated 2250 so far?
Ms Sherry: He has not.
Justice Stephen G. Breyer: No?
So a person who has recently -- recently committed the crime, is in prison, is under an obligation to register, is yet not in violation because of the time for initially registration -- registering -- has not yet expired.
Now let's go back to a person who is far less certain how it applies.
He committed the crime 10 or 15 years ago.
He has long since been released from prison.
There are, as you point out, several categories.
One is a person who has to -- who should under Michigan State law register, but he didn't.
Another is a person who did, and moved.
You know, there are several categories.
Now, is he in violation of 2250?
Your point is he is immediately, even though it was much less clear that it applied to him, much less clear.
And much less clear -- in fact, it doesn't say when he is supposed to register, but still, 2250 applies to him.
I just wonder how that could be, particularly when we have three sentences, indeed, which seem to me to tell the Attorney General, certainly, please deal with that kind of a case.
Ms Sherry: If I could start with 2250 and then go back to subsection (d), that is not our position.
2250 is the criminal provision.
What we were actually looking at here are the registered--
Justice Stephen G. Breyer: I thought he was convicted of a crime.
I thought he was convicted of a crime under 2250.
That's why I asked the question.
And his lawyer said in response to my question that one of the things she wants to argue is that he cannot be convicted under 2250 until he is under a legal obligation to register, and that initial registration is not a legal obligation until the Attorney General makes his rules.
I thought that was the argument.
Ms Sherry: --Let me make an important distinction.
We're actually talking about Reynolds here.
You are right, but Reynolds was not convicted and was not prosecuted for failing to comply with the initial registration requirements in subsection (b); he was convicted and prosecuted for failing to comply with the timing requirements in subsection (c), which are point clear as applied to offenders like Reynolds, who have already registered or already in the system.
What he did was he traveled--
Justice Stephen G. Breyer: That says -- subsection (c) says he has to -- not later than 90 days--
Justice Antonin Scalia: Where is this?
Do you want to tell us where it is?
Ms Sherry: --I'm sorry.
This is on 12(a) of the summary--
Justice Antonin Scalia: It's very helpful to know what you're talking about.
Ms Sherry: --Absolutely.
Justice Elena Kagan: --But you're suggesting, Ms. Sherry, that (b) and (c) have nothing to do with each other, and in fact, one can read (a), (b), and (c) as all integrally linked and referring only to postenactment offenders, so (a) is the umbrella provision; it says
"a sex offender shall register and keep the registration current. "
(B) says how you shall register initially, and (c) says how you shall keep that registration current.
So all three of these refer only to postenactment offenders.
And then (d) comes along and says, by the way, the Attorney General can apply all of this to pre-enactment offenders as well, and can specify how to do that.
Ms Sherry: Again, I don't think that's right.
And if it helps, I'd like to walk through the different provisions.
The one thing I would say on the outset, however, is when you say that, when you read those sections, you can read them as applying to only postenactment offenders, I don't think that's right, especially because of subsection (b), because on the day that SORNA was enacted, every single person in prison at that time was be definition a pre-enactment offender, and so on its face when you read subsection (b), it quite easily applies to quite a number of pre-enactment offenders.
And the other point I would make along those lines is that fact subsection (b) just doesn't talk about pre-enactment, it talks about pre-implementation offenders.
So offenders that were convicted after SORNA's enactment but before SORNA was implemented, again quite easily fit not only within subsection (b) but within all the other subsections as well.
And with respect to the interrelationship between them, I think subsection (a) really identifies the jurisdiction in which a defendant needs to register.
So the first instance the jurisdictions in which an offender both needs to register and to keep the information current.
Subsection (b) really serves a limited purpose.
It's an intake process.
It's getting an offender into the system.
For offenders like Reynolds who are already in the very same system, there is nothing to be done.
(B) simply doesn't apply to them -- (B) is applied to people who are not already in that system, and for those that can comply with the timing, it gets them in before their release to the community.
But the inability to comply with subsection (b) for the small set of offenders that cannot comply were with the timing requirements, it doesn't immunize them from complying with all the other registries--
Justice Stephen G. Breyer: --In other words, you were reading (c) as saying, to go back to my example, the person who was convicted last year and has four more years to do his initial registration -- nonetheless, if he changes his name, if he stops being a student while in prison, he has to register tomorrow or the day after.
I would say if that's your reading of those two sections, it's going to confuse everybody who is in prison, as it did confuse me.
Ms Sherry: --That is not my reading of the--
Justice Stephen G. Breyer: Alright, then.
Then I take it your reading is he does not have to fulfill (c) until after he has to initially register, and so we're back to the question of why you treat somebody who committed the crime long ago with less clarity -- with less time to initially register, with more confusion from one jurisdiction to another than you would treat a person who was convicted last year, is still in jail, and has four more years to register.
That's why I read (d) as trying to sort that kind of thing out.
Ms Sherry: --Two points on that.
Number one, for offenders like Reynolds that are already registered, there's nothing more to be done as far as registration goes.
All that he needs to do is to keep the information current and to keep it updated.
The other point I would make, since we're talking about 2250, Congress provided other protections for offenders that were unable to comply with the timing requirements, number one -- it provided impossibility affirmative defense in 2250(b), and the other thing that Congress did is it required that any failure to register in order to be subject to prevailing sanctions, that it be a knowing failure to register.
In other words, that the offender know he has a registration requirement and know that he is not complying with that requirement.
So the idea that there are some hypothetical or maybe even not so hypothetical sex offenders out there who can't comply with the precise timing in (b) and will -- have no idea what they are required to do, they are not going to be criminally liable under 2250 because there is an impossibility defense.
And to the extent they don't know that they have a registrational requirement, they're also not going to be criminally liable under 2250.
Chief Justice John G. Roberts: Why isn't part of your answer to Justice Breyer's question that the one person who doesn't have to register for four years is in prison already, so presumably, he doesn't present the same type of threat that led to the enactment of these registration laws in the first place.
Ms Sherry: --That's absolutely right.
The reason -- the release from prison is the trigger and the concern and the reason we have registration is for periods of time where these offenders are released into the community.
And that's why the timing requirement in (b) is there.
The notion is that before offenders are released into the community, we want to get them on the registry rolls, we want to be able to track them from the day that they're released.
Justice Stephen G. Breyer: Your view is that they have to register initially when?
Ms Sherry: If they have not?
Justice Stephen G. Breyer: No, no, I'm saying -- take my example.
The person is in Michigan.
Michigan does have a sex registration thing, but he never actually did, so now the Federal act comes in now when is he supposed to register.
Ms Sherry: He is to register within a reasonable time.
Justice Stephen G. Breyer: Oh, reasonable time and what is a reasonable time.
Ms Sherry: Given the rest of the requirements something probably along the lines of give or take three business days.
Justice Stephen G. Breyer: Three business days he's supposed to go out and do that and if he doesn't do that he has committed a federal crime which makes no mention of it, no mention at all, and he's just supposed to guess that that's three business days because he's a lawyer, is that why?
Ms Sherry: No, actually it's not unique with respect to the statute, it's quite common for status offenses, and let me try to give one example.
One of the statutes that the Court looked at fairly recently 922 g 9 makes it unlawful to possess a fire arm after having a conviction for a misdemeanor crime of domestic violence.
That statute applied in 1996 and applies to everybody convicted of a domestic violence offense.
So if an individual had domestic violence conviction in 1990 and had a fire arm in his possession forever the last 20 years when the statute passed in 1996 he was in violation of the statute.
Of course he couldn't be prosecuted unless he was given some reasonable time to get rid of the fire arm.
But there is nothing years ago with respect to that.
And again, the criminal provision here 2250 provides additional protections it has an affirmative defers for impossibility and it requires that there be knowledge.
So for an offender that knows he is required to register he is given a reasonable amount of time to come into compliance with that registration requirement.
Reynolds in particular is an example of what Congress was trying to get at.
Reynolds knew he was required to tell somebody when he moved from Missouri to Pennsylvania.
He knew that because he signed registration forms in Missouri telling him as much.
And those are in the joint appendix after pages 16.
Justice Ruth Bader Ginsburg: Those were under Missouri law not under federal statute.
Ms Sherry: They were -- they were under Missouri law, but the important point for SORNA purposes is that he knew he had a registration requirement.
He doesn't have to know what law it arises under.
And again, the sex offender registries that pre-existed SORNA are the exact same sex offender registries that SORNA is using.
SORNA was enacted in 2006; it wasn't starting over; it wasn't starting from scratch.
wanted to build on the previous regime.
It It wanted to fix it and make it better and fill in gaps and fill in loopholes and stitch all of the--
Chief Justice John G. Roberts: And providing criminal penalties that weren't always there.
Ms Sherry: --Well, the criminal penalties--
Chief Justice John G. Roberts: That's a big change.
Ms Sherry: --The criminal penalties -- the Federal felony criminal penalties were not there before.
Wetterling did have a misdemeanor penalty, and a number of States did have penalties, but again the criminal penalty is distinct from the registration requirement, which is what we are actually looking at and what we're interpreting.
The registration requirement, violation of which can result in criminal penalties in certain circumstances; but again, Congress provided additional protections for those circumstances.
The registration requirements themselves not only apply to sex offenders and tell sex offenders what they are required to do, it also tells States and other jurisdictions what they are required to do if they want to -- implement.
Chief Justice John G. Roberts: Your theory -- your theory of what the Attorney General did here, as you put in your -- I forget what, the regulations, or the -- was confirm the applicability of SORNA, right?
Ms Sherry: Our--
Chief Justice John G. Roberts: That's the word you used, I think, on page 12 of your brief.
Ms Sherry: --We did.
One of the things he did was confirm.
In the interim rule the Attorney General in the preamble section read the statute exactly as we read the statute.
Chief Justice John G. Roberts: Right.
What is the other example -- did you have any other example where an Attorney General confirms the applicability of a criminal law?
Ms Sherry: I don't know if I would say confirm.
There are certainly are other examples where the Attorney General has had authority and exercised authority to define certain aspects of criminal law, Touby is one example of such a case.
Chief Justice John G. Roberts: No, that's different.
I mean if you are talking about defining which drugs are qualified, you know, under provisions that criminalize possession, things like that.
That's is clarification going forward.
I am talking about straightforward confirming, is what you say happened here.
Ms Sherry: Oh, well--
Chief Justice John G. Roberts: The law says this and I -- I think it means -- I think it means what you say it means.
Ms Sherry: --I think there are a number of examples where for example, agencies do little more than restate what the statute says.
I think the Court doesn't give deference in those circumstances, but it certainly is within the scope of the general authority of an agency or the Attorney General in this case to reiterate the statute's requirement.
The Attorney General went -- went a step further in the interim rule in that what the Attorney General said in the preamble is I read the statute as written; I think it applies facially to all sex offenders regardless of the date of conviction but I understand the defendants are making an argument to the contrary, and in an abundance of caution to foreclose that argument to the extent I need to do something under subsection (d) I am doing it now; and I'm saying that yes, it applies to all pre-enactment and pre-implementation offenders.
Chief Justice John G. Roberts: So I get back to my question, which -- what's your best example of an Attorney General doing something like that?
Ms Sherry: Confirming?
I don't know if I have one in a criminal context exactly, but I think the point maybe that Your Honor's getting at; and you can certainly correct me if I'm wrong; might be a point that you made earlier.
It certainly is somewhat unusual delegation of authority to the Attorney General.
If Congress had wanted the Attorney General to decide whether or not the registration requirements at the very core of this statute had any operative effect going forward, presumably it would have told the Attorney General that he needed to do something.
That's something that Congress did in many other provisions of SORNA where Congress said the Attorney General shall do something.
In fact, more than a dozen provisions Congress used that language to direct the Attorney General to take a certain action.
Chief Justice John G. Roberts: Well, here it says shall.
It says the Attorney General shall have the authority to specify the applicability of the requirements of this subsection.
Ms Sherry: But it says shall have the authority.
And I think there is a significant difference between shall specify and shall have the authority to specify.
The latter is a passive delegation of authority; it's a permissive delegation.
It suggests that the Congress did not think that the Attorney General had to do something for the statute to apply as written.
It suggests that the statute applied on day 1 to all pre-enactment and pre-implementation offenders as all the other subsections that set forth the registration requirements suggest, but if the Attorney General in the future sees a need to specify the applicability going forward, then he has the authority to do that.
Not that he--
Justice Sonia Sotomayor: --But the question -- you are starting from a proposition, counsel, it seems to me, that Congress necessarily and under all circumstances thought that it had to include pre-SORNA convictions.
But I don't know -- yes, it wanted a uniform system, but it had State systems in place, it had an imperfect Wetterling Act in place.
It had lots of other mechanisms in place to punish non-registrants.
So you are starting from the proposition that by necessity they wanted to include preconviction felonies.
But I guess for those of us who believe in legislative history, and I know many of my colleagues don't believe in it or pay attention to it, there were two bills passed on SORNA, one a House bill that made it very clear, explicitly clear that it applied to pre-SORNA conviction felons; and the Senate bill which under the label Retroactivity had the terms that (d) now has.
Doesn't that suggest to us that Congress itself was unsure of whether it wanted to include the pre-SORNA convictions or not?
Ms Sherry: --I don't think so, and for two reasons.
First, to address the bills themselves, I don't think the Senate bill, just like I don't think subsection (b) means that Congress meant to apply the registration requirements to all pre-enactment offenders in the registration provisions and then take away that provision in the specify the applicability provision.
In the Senate bill that you are talking about it defined a sex offender as anybody who has been convicted of a sex offense and as this Court said in Carr, that is the language that Congress quite often uses when it intends to include pre-enactment conduct.
So I think the verb choice, both in the Senate bill, in the House bill, and in the bill that was actually enacted, indicates that it did intend to include pre-enactment offenders.
The other point I would want to make is again, another point that was made in Carr, which is that the registration requirements stand at the very center of Congress's efforts to find and to register the 100,000 missing sex offenders that have fallen off the registry rolls under the previous regime.
So I think it is quite clear with respect to SORNA that Congress did want to include pre-enactment offenders; it wanted to not only find those missing sex offenders; it wanted to make sure that they got back on the registry rolls.
And as far as of the hundreds of thousands of offenders that were already on the registry rolls when SORNA was enacted, they wanted to make sure that they stayed on the registry rolls, that they kept the information current; they continued to update their information going forward.
And again, with respect to pre-enactment offenders that were in prison at the time that SORNA was enacted, it wanted to make sure to get them on the registry rolls before they left prison, before they--
Justice Sonia Sotomayor: I guess my problem is that you make an assumption, you continue to make an assumption that if the Attorney General hadn't acted -- that the Attorney General was incapable of acting quickly.
I mean, if the Attorney General had within a few months done what he ultimately did a year later or whatever time period after, had come out and said, it applies; this is what you do; briefly, you register wherever you were convicted or -- et cetera, if you move or change your name, then Congress would have accomplished the goal it wanted.
Ms Sherry: --If -- if the -- if Congress had wanted the Attorney General to act and to act quickly, presumably Congress would have told the Attorney General that he had to do something.
Again, that's something Congress did in many other provisions of SORNA.
Justice Ruth Bader Ginsburg: And why did -- the Attorney General didn't try to act very quickly, and if the Attorney General thought that SORNA applied from day 1, why is the Attorney General trying to go through regulation that said nothing more than SORNA applies?
Ms Sherry: Because when the Attorney General issued the interim rule, what he said was that reading it on the face, I do think it applies to everybody, but I recognize the defendants are making an alternative argument and I think it's incredibly important that it apply to everybody, and that it apply to everyone quickly, because we are talking about protecting our communities; we're talking about protecting the public and protecting our children from sex offenders, and having this uncertainty out there is -- is not only not good for protecting the public, but it's not good for sex offenders; it's not good for jurisdictions that are trying to work towards substantial implementation of SORNA.
And so I think you could look at it one of two ways.
If the idea is, well, Congress left it to the Attorney General, but the Attorney General sort of acted very quickly, I think that suggests that there probably wasn't that much for the Attorney General to do in the first place, and there is little reason that Congress would not have made that decision on its own.
To the extent you think there was a whole bunch of things for the Attorney General to do, which again we disagree with, presumably that is something that would take some time.
During the interim period those 100,000 sex offenders would remain missing; additional sex offenders would be added to that number and the community and public would continue to be at risk going forward.
Chief Justice John G. Roberts: What if -- what if we think Congress left it to the Attorney General is because they just didn't want to decide?
Or some people were saying, this is fine but not retroactive and others were saying it should be retroactive.
Do you see any constitutional issues with Congress delegating that authority to the Attorney General, the authority to make the criminal statute applicable on a retroactive basis?
Ms Sherry: --that's what Congress did.
Of course, we don't think So we -- we do think that the notion that Congress would delegate such a fundamental issue to the Attorney General in such subtle and opaque terms that the Attorney General didn't think he needed to do anything is quite significant when you look to see what -- what Congress was intending.
Justice Antonin Scalia: It would strengthen your case if you at least acknowledged that it would be constitutionally doubtful.
You wouldn't have to say it's bad, but if you said it's doubtful, it might strengthen your case, wouldn't it?
Ms Sherry: strengthen our case here--
Justice Elena Kagan: But it would also work That is -- that might against your own interpretation, because your own interpretation allows you to exempt anybody you want from the statute; isn't that right?
Ms Sherry: --It does, but we do think there's a different starting point.
And the different starting point is a fundamental difference, as Your Honor noted.
Our argument looks like a lot like prosecutorial discretion, whereas the other starting point is that Congress decided something and left it all to the Attorney General.
Chief Justice John G. Roberts: Thank you, Counsel.
Ms. Cain, you have three minutes remaining.
REBUTTAL ARGUMENT OF CANDACE CAIN ON BEHALF OF THE PETITIONER
Ms Cain: I would like to address one point the Government made, that there's no need to reregister -- someone in Mr. Reynolds' position -- once they have been registered under State law.
They acknowledge the opposite themselves in footnote 12, where they say that --
"that a Government or a State will have been deemed to substantially implement SORNA if it registers pre-enactment and pre-implementation sex offenders who remain in the system as registrants, as well as other people. "
So it's clear that the Government believes that -- acknowledges that people who are already registered must reregister under SORNA.
The most important thing is that this -- the SORNA statute -- the obligation under SORNA begins with initial registration, and does not begin with a State registration.
And enactment, Congress knew that certain people would be unable to register under subsection (b), and that is why they enacted subsection (d).
We ask the Court to remand to the district court, and to allow Mr. Reynolds to pursue his claim.
Chief Justice John G. Roberts: Thank you, Counsel.
The case is submitted.
Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10: 00.
Argument of Clerk
Chief Justice John G. Roberts: Justice Breyer has the opinion of the Court today in 10-6549, Reynolds versus United States.
I will announce the opinion for him.
The federal Sex Offender Registration and Notification Act requires those convicted of certain sex-related crimes to provide state governments with information such as names and current addresses for inclusion on state and federal sex offender registries.
The Act includes pre-Act offenders among those whom it regulates, but it also says that the "Attorney General shall have the authority to specify the applicability of the Act's registration requirements to sex offenders convicted before its enactment."
The basic question before us arises out of facts and circumstances that are complex, but for purposes of this exposition, we can simplify the context with the following hypothetical.
A defendant is convicted of a sex crime before the Act becomes law.
The Act then becomes law.
The defendant subsequently fails to carry out the Act's requirements.
All of this takes place before the Attorney General has issued a rule that specifies that the Act applies to pre-Act offenders such as the defendant before us.
These facts raise a legal question of whether the Act's requirement apply to pre-Act offenders who failed to comply with the Act's requirements in the period after the Act became law, but before the Attorney General validly specify the applicability of the Act to pre-Act offenders.
We conclude that the Act's requirements do not apply to this group of pre-Act offenders.
Our conclusion rests in part upon the language of the statute.
We also note that a contrary reading will create uncertainties about just how the statute applies to pre-Act offenders, uncertainties that the Attorney General would be well suited to resolve.
And we explain how our reading likely furthers various practical congressional objectives.
Our opinion discusses these and related matters.
Now, as noted we hold that the relevant statutory requirements do not apply to pre-Act offenders prior to the time the Attorney General issued valid regulations specifying their applicability.
We reverse a contrary holding by the Third Circuit.
Justice Scalia has issued a dissenting opinion which justice Ginsburg has joined.
And Justice Scalia has our opinion this morning in case 10-1259, United States versus Jones.
Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
In 2004, the respondent, Antoine Jones, came under suspicion of trafficking in narcotics.
The Government obtained, from the United States District Court here, a warrant authorizing the installation of an electronic tracking device on the Jeep registered to Jones' wife to be installed in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking -- tracking device on the undercarriage of the Jeep while it was parked in a public parking lot.
Over the next 28 days, the Government used the device to track the vehicle's movements.
In the later trial of Jones and others on drug trafficking charges, the District Court suppressed the GPS data obtained while the vehicle was parked at Jones' residence but admitted the remaining data which connected Jones to the alleged conspirators' stash house that contained significant amounts of cash and narcotics.
The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.
The D. C. Circuit set the conviction aside, concluding that admission of the evidence obtained by the warrantless use of the GPS tracking device violated the Fourth Amendment.
We granted certiorari, and we now affirm.
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures".
The Jeep is certainly an effect, as that term is used in the Amendment.
We hold that the Government's physical intrusion on the Jeep, for the purpose of obtaining information, constitutes a search.
This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.
The text of the Amendment reflects its close connection to property, since otherwise it would have referred simply to the right of the people to be secure against unreasonable searches and seizures.
That's not what it says.
It says "to be secure in their persons, houses, papers and effects against unreasonable searches and seizures".
The -- that last phrase would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th Century.
Our later cases, of course, have departed from an exclusively property based approach.
They have applied the analysis of Justice Harlan's concurrence in Katz versus United States, a 1967 case which said that a Fourth Amendment violation occurs when government officers violate a person's reasonable expectation of privacy.
The Government contends that Justice Harlan's standard shows that no search occurred here, since Jones had no reasonable expectation of privacy in the area of the Jeep accessed by government agents, namely, the -- the underbody and in the locations of the Jeep on the public roads which was visible to all.
We do not address those contentions because Jones' Fourth Amendment rights do not rise or fall with the Katz formulation.
At bottom, as we said in Kyllo versus United States, we must “assure preservation of that degree of privacy against Government that existed when the Fourth Amendment was adapted”.
Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas that it enumerates.
The reasonable expectation of privacy test has been added to, not substituted for the common law trespassory test.
The Government relies heavily on two post Katz cases in which we rejected Fourth Amendment challenges to the use of beepers, another sort of tracking device that the Government had placed inside a container of chemicals in order to monitor the container's movements.
In the first of those cases, United States versus Knotts, we held that the monitoring of the movements did not violate the Katz's reasonable expectation of privacy test since the information obtained, the location of an automobile carrying the container on public roads and the location of the offloaded container in open-fields near Knotts' cabin, had -- had been -- had been voluntarily exposed to the public.
The common law trespassory test was not at issue in that case.
And in the second “beeper” case, United States versus Karo, we addressed the question left open by Knotts, whether the installation of a beeper in a container constituted a Fourth Amendment violation.
But as in Knotts, at the time the beeper was installed in Karo, the container belonged to a third party, and it did not come into the defendant's possession until later.
Karo had accepted the container as it came to him, beeper and all.
The installation of the beeper had not violated his property rights.
Accordingly, he was not entitled to object to the beeper's presence when it was later used to monitor the container's location.
Jones, who possessed the Jeep at the time the Government trespassorily inserted the GPS device, stands in a different position.
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable and thus lawful under the Fourth Amendment.
The Government did not raise this argument below and the Court of Appeals, therefore, did not address it.
We consider the argument forfeited.
The judgment of the Court of Appeals is affirmed.
Justice Sotomayor has joined the Court's opinion, but has filed a separate concurrence.
Justice Alito has filed an opinion concurring in the judgment, in which Justices Ginsburg, Breyer and Kagan join.
Chief Justice John G. Roberts: Mr. Clerk, the Court will entertain motions for admission to the Bar of the Court.
Clerk: A group of attorneys from United States Advocate General's Center and School presented by Lieutenant General Dana Chipman.
Chief Justice John G. Roberts: General Chipman.
Argument of Lt. Gen. Dana Kyle Chipman
Lt. Gen. Dana Kyle Chipman: Mr. Chief Justice, and may it please the Court.
I move the admission of the following attorneys.
From the Bar of Florida, Major Nicholas A. Martz, Major Mary Nelson (Inaudible), Major Tracy Morris, Major William Dawson Ward, III; From the Bar of Georgia, Major David Jerome Lee; From the Bar of Illinois, Major Marlon D. (Inaudible), Major Keith A. Petty, Major Edwin H. (Inaudible); From the Bar of Indiana, Major Mark Steven (Inaudible); From the Bar of Kansas, Major Christopher Steven Harry, Captain Sarah C. Sykes; From the Bar of Kentucky, Major Lucius E. Tillman; From the Bar of Louisiana, Major Larry Andrew Babin, Jr.; From the Bar of Massachusetts, Major Dana Michael Hollywood; From the Bar of Maryland, Major Melissa Ridgely Kovalesky, Major Walter Haden Wilkie; from the Bar of Minnesota, Captain Emily Homan Elbert, Major Eric Kelly Hanson; from the Bar of Missouri, Major Genevieve R. Murphy; From the Bar of Montana, Major Teresa Lynn Raymond; From the Bar of North Carolina, Major Daniel John Murphy; From the Bar of North Dakota, Major Jason Michael Norvin Albert; From the Bar of New Jersey, Major Alison Francis Helen Atkins; From the Bar of New Mexico, Major Charles C. McCloud, Lieutenant Commander Valerie L. Small; From the Bar of New York, Major (Inaudible); From the Bar of Ohio, Major Jason A. P. Coats, Major M. Colin Cusack, Major Thomas William Oakley, Major Jeffrey H. Robertson; From the Bar of Oklahoma, Major Clay Allen Compton, Major Joe B. Copes; From the Bar of Oregon, Major John F. Harwood, Captain David Andrew Wendell; From the Bar of Pennsylvania, Major Matthew E. Denim, Lieutenant Commander Danielle Marie Higson, Captain Matthew Edward Richardson, Major Hannah Aimee Rowlands; From the Bar of Puerto Rico, Major Francis Marie (Inaudible); From the Bar of Tennessee, Major Daniel Robert Kitza; from the Bar of Texas, Major Kathryn L. Brantley, Major Patrick Lamar Bryan, Major Eric Jay (Inaudible), Major Shelly Ray Farmer, Captain Lea Marie Specker; From the Bar of Utah, Major Matthew Hanson Landon; From the Bar of Virginia, Captain Brett Andrew Farmer, Major Jennifer Lynn (Inaudible), Major Joseph Kevin (Inaudible); From the Bar of Vermont, Major Christopher Hall Morris; From the Bar of Washington, Major Andrew Rouse Atkins, Major Joseph Andrew Atkinson, Major Eric Carl Huseby, Major Paul Louis Robson, Captain Derrick A. Row, Major Stacy J. Taylor, Major Jason C. Wells; From the Bar of West Virginia, Major David. J. (Inaudible).
I'm satisfied each possesses the necessary qualifications.
Chief Justice John G. Roberts: Thank you General, your motion is granted and the applicants will be admitted.
Unknown Speaker: A group of attorneys from the United States Air Force (Inaudible) presented by Lieutenant General Rick Harding.
Chief Justice John G. Roberts: General Harding.
Argument of Lt. Gen. Richard C. Harding
Lt. Gen. Richard C. Harding: Mr. Chief Justice and may it please the Court.
We move the admission of the following attorneys Captain Kenitra Fewell of the State of Alabama.
Major Shane Heavener of the State of Arkansas; Captain Kyle Matthew Rodgers, Lieutenant Colonel Katherine Stangle from the State of California; Major Charles Ellis, State of Connecticut.
Major Seth Deam, Colonel Craig Miller of the District of Columbia.
Major McGill L. Acosta, Major Troy Hammon of the State of Florida; Captain Anthony (Inaudible) and Captain John Ray Williams of the State of Illinois; Colonel Mark Allison, Major Jeff Miller, Major Ashley K. Richards, of the State of Kansas.
Cary (Inaudible) of the State of Kentucky.
Lieutenant Colonel (Inaudible) Anderson, Lieutenant Colonel Christopher Brown of the State of Massachusetts; Captain Laura DeSio, Captain Corey Mac, Major Julia (Inaudible), Lieutenant Colonel Landa Wynn of the State of Maryland; Major Aaron Woodward of the State of Minessota; Captain Erica Lee (Inaudible) of the State of North Dakota; Captain Robert Stuart of the State of New Hampshire; Ryan Klemek of the State of New Jersey; Colonel Douglas (Inaudible) of the State of New Mexico; Major Hugh Barrett McClean, Major Jeanette Skow, Colonel Kenneth M. (Inaudible) of the State of Ohio; Captain Patrick (Inaudible), Major Scott Hudges of the State of Oklahoma; Major Tamona Bright, Christopher Cole, Heather Madson of the State of Texas; Captain Justin Kulinski of the Commonwealth of Virginia; Britannia Hobbs, Major Chad M. Jasperson, Darrel Johnson, Major Dustin Wayne of the State of Washington; Major Sarah (Inaudible) of the State of Wisconsin.
I am satisfied that each possesses the necessary qualifications.
Chief Justice John G. Roberts: Thank you General.
Your motion is granted and the applicants will be admitted.
Rebuttal of Clerk
Clerk: A group of attorneys from the Department of Defense, Office of the Chief Prosecutor of Military Commissions presented by Brigadier General Mark Martins.
Chief Justice John G. Roberts: General Martins.
Argument of Mark S. Martins
Gen. Mark S. Martins: Mr. Chief Justice and may it please the Court.
I move the admission of the following attorneys from the District of Columbia Captain Michael J. Lebowitz; From Indiana, Lieutenant Sherrie Elaine Jolly; From Maryland, Commander Thomas Jason Jones and Lieutenant Colonel Mary Kathleen Krivda; From Maine, Captain Chris Ruse; From Ohio, Lieutenant Colonel Wayne P. Marta, Major Joshua Samuel Kirk and Lieutenant Colonel Dale A. Rydel; From Pennsylvania, Lieutenant Commander Erin Kathleen (Inaudible); From Tennessee, Captain John Adam Cacioppo and from Virginia, Lieutenant Colonel Michael Thomas (Inaudible).
I am satisfied that each possesses the necessary qualifications.
Chief Justice John G. Roberts: Thank you, General.
Your motion is granted and the applicants will be admitted.
If all the applicants will stand, the clerk will administer the oath, but before he does so, I would like to extend to each of you a warm welcome as members of the Bar of this Court and as officers of the Court.
Rebuttal of Clerk
Clerk: Please raise your right hand.
You solemnly swear that as an attorney and as a counsel of this Court, you will conduct uprightly and according to law, and support the Constitution of the United States of America.
Rebuttal of Lt. Gen. Dana Kyle Chipman
Lt. Gen. Dana Kyle Chipman: I do.
Argument of Bailiff
Bailiff: The Honorable Court is now adjourned until Tuesday, the 21st of February at 10 o'clock.