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A Defense in SORNA Actions (Practice Points)
By Daniel I. Siegel
Practice Points columns.
The argument outlined in this article has been preserved in a failure-to-register case under the criminal SORNA statute at 18 U.S.C. § 2250(a). The Sex Offender Registration and Notification Act (SORNA) came into effect on July 27, 2006, and under the civil SORNA statute at 42 U.S.C. § 16913(d), Congress delegated to the attorney general the decision on whether pre-SORNA convictions will be counted. The attorney general has exercised his discretion in favor of full retroactivity.1
Defense attorneys are currently challenging the constitutionality of the retroactivity provision at 42 U.S.C. § 16913(d). They argue that this provision delegates legislative authority to the executive branch, in violation of the “nondelegation” doctrine of Article I, Section 1 of the U.S. Constitution. This argument finds support in the dissenting opinion by Justice Scalia in Reynolds, joined by Justice Ginsburg, questioning whether § 16913(d) violates the nondelegation doctrine.2 The Supreme
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