On June 20, 2019, the Supreme Court held that Congress did not unconstitutionally delegate its legislative power to the Attorney General (AG) in the Sex Offender Registration and Notification Act (SORNA). Although the Court upheld the statute, Gundy may have opened up a big can of worms.

SORNA requires “sex offenders” to register in every state in which they reside, work, or study. The Act focuses on those convicted after the statute’s enactment; it specifies that a sex offender must register initially before completing their prison term or within three days of sentencing if the sentence does not include imprisonment. The Act gave the AG the authority “to specify the applicability of the [Act’s] requirements” to those convicted before the Act’s enactment (so-called “pre-Act offenders”) 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” the Act’s registration requirements. The AG issued a regulation providing that SORNA’s requirements “apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.”

Gundy was a pre-Act offender who failed to register as required. In his defense, he argued that SORNA’s delegation to the AG was unconstitutional. The Second Circuit rejected his argument, as had the eleven other federal courts of appeals that addressed the issue. When Gundy petitioned the Supreme Court for a writ of certiorari, the Department of Justice didn’t even respond until the Court ordered it to. The Supreme Court, which at the time included Justice Kennedy, granted certiorari despite the lack of a split in the circuits. Ultimately, the Court agreed with the federal courts of appeals and upheld SORNA.

Justice Kagan wrote an opinion for herself and Justices Ginsburg, Breyer, and Sotomayor. She explained that the Constitution assigns the legislative power to Congress. Thus, Congress may not transfer powers that are “strictly and exclusively” legislative to another branch of government. It may, however, enlist the assistance of federal agencies to implement federal statutes, so long as the statute meets the test from the 1928 case of J.W. Hampton, Jr. & Co. v. United States: it must provide an “intelligible principle” to govern the agency’s actions. SORNA did so by requiring the AG to apply the registration requirements to pre-Act offenders as soon as possible, leaving the AG only the discretion to work out the details. Thus, the plurality opined that “the delegation in SORNA easily passes muster.”

Justice Alito voted with the plurality of “liberal” justices, but did not join Justice Kagan’s opinion. Instead, he voiced his willingness to “reconsider the approach we have taken for the past 84 years,” if there were a majority willing to do so. Justice Kavanaugh didn’t participate in this case, because he wasn’t on the Court yet when it was argued. That left only the Chief Justice, and Justices Thomas and Gorsuch to dissent.

Justice Gorsuch wrote for the dissenters. In his view, SORNA gave the AG unbridled discretion; it “endow[ed] the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.” Rather than simply disagree with the plurality’s interpretation of the Act, however, the dissenters advocated abandoning the “intelligible principle” test. Instead, they would uphold delegations only when Congress either 1) makes the policy decisions and authorizes an agency merely to “fill up the details”; 2) makes the application of a statutory rule depend upon executive fact-finding; or 3) assigns “non-legislative responsibilities,” i.e., leaves the executive discretion over matters that are already within the executive’s constitutional purview. In the dissenters’ view, SORNA does not meet those criteria. Presumably, Justice Kavanaugh would join the dissenters in future cases, which might bring Justice Alito into the fold as well.

The Court has only invalidated federal statutes for violating the so-called “non-delegation doctrine” twice—both more than eighty years ago. Chief Justice Rehnquist breathed some life into the moribund doctrine in a concurring opinion in 1980. Since then, however, the Court has upheld many broad statutory delegations of authority to agencies, including statutes empowering agencies to regulate in the “public interest,” set “fair and equitable rates” or “just and reasonable” rates, and to set air quality standards that are “requisite to protect the public health.” After Gundy, such typical delegations may not survive. As Justice Kagan warned (without hyperbole): “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”

Of course, it is Congress’s job to legislate. In the dissenters’ ideal world, Congress would make all of the requisite policy decisions, leaving only the details and implementation to agencies. On its face, it sounds reasonable. As a practical matter, however, requiring such specificity from Congress would grind regulatory lawmaking to a halt. Broad delegations are often the key to gathering enough votes to pass legislation. They give agencies the ability to respond to changing circumstances more quickly than Congress can. They insulate from politics the kinds of policy decisions that are more appropriately made by apolitical experts in agencies. As Professor Nicholas Bagley explained, “To run a functional, modern government, Congress has no choice but to delegate authority and discretion to federal agencies.”

Perhaps we need not panic. Justice Gorsuch cautioned against overstating the problem with the “intelligible principle” test; the Court has muted its impact already by invalidating statutes using other doctrines. Moreover, the dissenters appeared to be particularly concerned with the criminal nature of the Act. Justice Gorsuch ended his opinion with the hope that “the Court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code.” Perhaps adoption of the dissenters’ test wouldn’t change the outcome in many cases. Maybe if push comes to shove, the Chief Justice would vote to uphold Congress’s delegation out of “concern[] … with preserving the Court’s institutional position and the larger stability of constitutional arrangements,” as Professor Adrian Vermeule suggested.

The dissenters also said, however, that a “statute directing an agency to regulate private conduct to the extent ‘feasible’” would not satisfy them, because “feasibility” “might refer to ‘technological’ feasibility, ‘economic’ feasibility, ‘administrative’ feasibility, or even ‘political’ feasibility.” And Congress’s declaration of purpose cannot clarify the matter. Obviously, legislative history doesn’t help these textualists either. Would the dissenters allow agencies to regulate “in the public interest” or to “protect the public health” then? It seems doubtful.

We are left to wonder what Justice Alito might do in future cases. He could have joined the three dissenters without changing the outcome of this case; the Court would have split evenly, which results in an affirmance of the lower court’s judgment. Had he wanted to change the outcome, he could have joined the other “conservative” justices to order that the case be reargued so that Justice Kavanaugh could participate, as the Court did in Knick v. Township of Scott. Perhaps he felt constrained by the Court’s prior opinion on SORNA from 2012. Or perhaps changing the test wouldn’t have changed the outcome for him. He might favor abandoning the “intelligible principle” test, but that doesn’t necessarily mean he’ll vote to invalidate statutes as unconstitutional delegations of legislative authority.

What Gundy does mean is that statutory interpretation will continue to reign supreme in constitutional law. It means the Supreme Court will have the last word in our biggest debates about public policy. And it guarantees full dockets for the lower federal courts and for the excellent lawyers in the Department of Justice who have dedicated their careers to defending the United States.

Despite all the alarming news we read daily about affronts to long-accepted political and legal norms, the greatest threat to our constitutional order is one that almost never makes the headlines.  Several aggressive, well-funded conservative advocacy groups, with occasional success enlisting politically naïve progressives, have been working hard to open up the U.S. Constitution to this country’s first convention since 1787.  Their success would jeopardize all civil liberties and all restraints on presidential power.  And they are much closer than most people would imagine.

The last effort to rewrite our Constitution was led by the unifying figure of George Washington.  This time, former Wisconsin Governor Scott Walker, one of our most divisive figures, is leading the effort.  After losing a razor-thin race for re-election, Governor Walker signed on with the Center for State-Led National Debt Solutions, one of several groups seeking to invoke Article V of the Constitution.  Under Article V, petitions from 34 states require Congress to call a convention to propose amendments to the Constitution.  These groups enjoy strong support from the American Legislative Exchange Council (ALEC), the right-wing corporate advocacy group aligned with the Koch brothers’ network best-known for promoting “Stand Your Ground” gun legislation and “bathroom bills”.

Walker’s group’s nominal goal is adding a balanced budget amendment to the Constitution.  A balanced budget amendment would create powerful pressure to cut social programs such as Social Security, Medicaid, and nutrition assistance.     A balanced budget amendment would deepen and lengthen recessions.  It would require a super-majority to prevent spending cuts or tax increases – which would further depress the economy – when a recession reduces revenues and increases demand for programs like unemployment insurance and food assistance.  Even without a balanced budget amendment, Congress has had trouble enacting stimulus legislation in recent recessions.  A balanced budget amendment likely would prompt a minority to extort pork-barrel spending or other policy concessions in exchange for allowing stimulus legislation.  This has occurred in states requiring supermajorities for fiscal legislation.  And a balanced budget amendment would feed partisanship.  With President Trump already threatening to settle immigrants specifically in Democratic-leaning areas – despite the Constitution’s call for “uniform” rules – we can expect future presidents to allocate required budget cuts to opposition states.

As devastating as a balanced budget amendment would be, it is only one of the dangers an Article V convention poses.  Another group, the Convention of the States Project (COSP), seeks an Article V convention for broader purposes.  One of these would be to “impose fiscal restraints on the federal government”.  This apparently is intended to invite an amendment that would not only require a balanced budget but also cap federal spending well below current levels.

COSP also seeks constitutional amendments to “limit the power and jurisdiction of the federal government”.  This presumably could strip the federal government of the power to pass civil rights, environmental, consumer protection, or other important legislation.  This is not implausible.  Leading Republicans have expressed misgivings about the civil rights laws, and this Administration has sharply reduced environmental and consumer credit standards.  Indeed, the requirements that states provide equal protection and adhere to the Bill of Rights extend “the power and jurisdiction of the federal government”.

Yet the dangers of an Article V convention go even beyond COSP’s ambitious agenda.  Nothing in Article V or anywhere else in the Constitution limits the scope of the changes a convention could consider.  And even if such a limit existed, nothing in Article V empowers any body to regulate or constrain a convention.  Congress’s powers under Article V are confined to specifying the ratification method.  The Supreme Court has held that efforts to amend the Constitution involve “political questions” beyond the jurisdiction of the federal courts.

The only prior convention empowered to start rewriting our Constitution – the Philadelphia Convention of 1787 – shows how easily an Article V convention could disregard any purported limits and open up the entire Constitution.  Unlike the proposed Article V convention, the Philadelphia Convention was subject to strict, binding limits on its jurisdiction.  Article XIII of the Articles of Confederation prohibited any amendments not agreed to by every state; Article VI forbade agreements among states outside the Articles of Confederation.  After being called to propose amendments to the Articles, the Philadelphia Convention quickly discarded those rules and began writing an entirely new constitution.  It also decreed that its new constitution would become effective upon ratification by nine states, not the unanimous approval Article XIII demanded.

Article V is similarly silent on how a convention would operate.  Here again, neither Congress nor the courts have any authority to impose rules.  Convention advocates, however, insist that each state would have an equal vote.  If so, then the twenty-six least-populous states – with a combined population of less than 18% of the national total – could craft amendments for the nation.  The views of 577,737 people in Wyoming could cancel out those of the 39.6 million people of California.

Supporters of an Article V convention conjure a fairytale process with citizens from across the country coming together with openness and good will to seek the common good.  The reality of today’s bare-knuckle politics suggests otherwise.  Big-money interests that already spend heavily to influence Congress would redouble their efforts in pursuit of permanent protection for their interests through a constitutional amendment.  Russia, and possibly other foreign powers, likely would intervene surreptitiously.

Little wonder that leaders across the political spectrum have expressed alarm at the prospect of an Article V convention.  Several of the nation’s founders staunchly opposed holding a new convention.  John Jay expressed skepticism that most political complaints justified “running such extravagant risques” as a new convention would entail.  Chief Justice Warren Burger stated that a “Constitutional Convention today would be a free-for-all for special interest groups”.  Justice Antonin Scalia said “I certainly would not want a Constitutional Convention. I mean whoa.  Who knows what would come out of that?”  Justice Arthur Goldberg noted “it cannot be denied that" the 1787 Philadelphia convention “broke every restraint intended to limit its power and agenda”, and “any attempt at limiting the agenda [of an Article V convention] would almost certainly be unenforceable.”

Nor would the ratification process protect against a runaway convention.  An Article V convention could follow the Philadelphia Convention’s example and unilaterally redefine the ratification process.  It could, for example, call for a national referendum to ratify its handiwork.  Even if the current state-based ratification process remains, majorities in the thirty-eight smallest states – with just over 40% of the nation’s population – would suffice to bind the country.

Moreover, the convention could improve its chances of securing ratification by bundling together provisions appealing to different political groups.  Nobody can be sure what would happen if the convention combined a “national security” exception to the First Amendment along with limiting Second Amendment protections to official militia activities.  Similarly, an amendment revising the Electoral College, declaring that this country is a Christian Nation, and prohibiting all affirmative action might, on balance, appeal to a fairly broad segment of the electorate.  Here again, this approach has considerable precedent:  several existing amendments, including the Fifth, Sixth, Eighth, and Fourteenth, combine several disparate provisions.

Each of us have seen infuriating setbacks in constitutional law.  The harm resulting from these changes should not be underestimated.  All these changes, however, resulted from judicial decisions.  As such, they are subject to reversal once the national mood shifts and the Supreme Court’s composition changes.

The damage an Article V convention would do is of an entirely different character.  Losses there could not be made up without holding a new Article V convention, with all the risks that it could make things even worse.

States that have not yet passed convention calls should resist the entreaties of Scott Walker, ALEC, COSP, and the rest.  States that have convention calls on the books should rescind them as soon as possible, just as Delaware, Maryland, Nevada, and New Mexico have done in recent years.  If they do not, convention proponents are likely to seize the opportunity to declare the 34-state threshold met next time they control both chambers of Congress.  This would require some serious fuzzy math, but proponents have shown their willingness to go that route and we have little reason to hope that Congress will take a principled stand against them.  This is truly a case where an ounce of prevention exceeds many tons of attempted cure.