Brief filed: 07/10/2013
United States v. Cooper
3rd Circuit Court of Appeals; Case No. 13-2324
On Direct Appeal from Judgment of Conviction and Sentence on Conditional Guilty Plea in the U.S. District Court for the District of Delaware.
If the Court finds that the general duty to comply with the legislative purpose of SORNA provided the Attorney General an “intelligible principle” for deciding whether to make the law retroactive, then the Court must decide whether that standard satisfies the Constitutional non-delegation rule in a criminal context. Appellant’s case presents the constitutional delegation question in stark form, and because of the date of his prior convictions and the time period when he failed to register, the issue cannot be avoided on statutory grounds. The complete and standardless Congressional assignment to the Attorney General of authority to decide the extent of SORNA’s retroactivity violates any Constitutional standard limiting delegation of the legislative power. When the Legislature empowers an Executive agency, and in particular the Attorney General, to decide what conduct will constitute a crime, Congress must “meaningfully constrain” the exercise of that delegated authority.
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Jenny Carroll, Seton Hall University School of Law, Newark, NJ; Peter Goldberger, Ardmore, PA.