On April 10, the Third Circuit upheld the Sex Offender Registration and Notification Act (SORNA) against an interesting nondelegation challenge - in U.S. v. Cooper. SORNA applies retroactively to sex offenders convicted before the enactment of the statute (the possible ex post facto issue was not part of this new case), and delegates to the Attorney General full discretion to create registration procedures for pre-enactment offenders). The court explains:
The statute defines “sex offender” to include individuals who were convicted of sex offenses prior to the enactment of SORNA. 42 U.S.C. § 16911(1) (defining “sex offender” as “an individual who was convicted of a sex offense”); see also Reynolds, 132 S.Ct. at 978 (noting that SORNA “defines the term ‘sex offender’ as including these pre-Act offenders”). However, SORNA does not set forth the registration procedures for pre-SORNA sex offenders. Instead, in 42 U.S.C. § 16913(d), Congress delegated to the United States Attorney General the authority to determine whether SORNA's registration requirements would apply retroactively to pre-SORNA sex offenders.
Only two Circuits (Ninth and Tenth) have not yet addressed this issue, and the Third Circuit notes that there seems to be a consensus forming on the point, rather than a split, though the Supreme Court has repeatedly denied cert in this cases:
Each of our sister circuits to have considered the issue has concluded that SORNA does not violate the nondelegation doctrine. See, e.g., United States v. Goodwin, 717 F.3d 511, 516–17 (7th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 334, 187 L.Ed.2d 234 (2013); United States v. Kuehl, 706 F.3d 917, 919–20 (8th Cir.2013); United States v. Parks, 698 F.3d 1, 7–8 (1st Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2021, 185 L.Ed.2d 889 (2013); United States v. Rogers, 468 F. App'x 359, 362 (4th Cir.2012) (not precedential), cert. denied, ––– U.S. ––––, 133 S.Ct. 157, 184 L.Ed.2d 78 (2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir.2012); United States v. Guzman, 591 F.3d 83, 92–93 (2d Cir.2010), cert. denied, 130 S.Ct. 3487 (2010); United States v. Whaley, 577 F.3d 254, 263–64 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1213–14 (11th Cir.2009).