tv Campaign 2018 Vote Run Lead Town Hall on Women in Politics CSPAN November 12, 2018 1:00pm-1:11pm EST
covered or you're not. and if congress had said that, we probably wouldn't have found a retroactivity problem. but what is the essence of non-delegation that we don't let the legislature define who's a criminal? and so isn't retroactivity a and so, isn't retroactivity and definition of who was a criminal? .> two separate points first, if congress had given the same authority to the attorney general and not otherwise expressed any intention with respect to how that authority would be exercised -- >> there are no plain words that add maximum feasibility for the statute. you are discerning words. is exactlyd that
what the court did in grimaud, fahey, loving. it works is the act as a whole and based on the provisions we have, what a reasonable attorney general understand what policy they were meant to pursue in exercising this authority and to be honest with you, i think it defies what the -- both the text and the reality to think august was agnostic over whether hundreds of thousands of people who committed very serious offenses should be required to register. thegoods no way to read text and legislative history and not come away with the firm a definite notion that congress want as many of those offenders in the system is the attorney general could get in. you take out legislative history and policy statements, because there are some of my colleagues who don't rely on either of those two things, what is left?
>> i would say the findings in 2091, the statement of express statutory purpose which this court has relied on for a comprehensive national system, the inclusive definition of sex offender on the broad registration requirement in 2913 a and the text and title of 913 b which say this is about addressing the inability to comply. we know on its face that what spurred this is a practical consideration of concern by congress about how to get these people into the system. all of those things taken together i think far more anchored in the text of the statute. where justice jackson for the over looked at the norms mode where the court to start it from another mother statutory provisions that it definite as it faces here. i think you're, you have an intelligible principle general policy that really is anchored in the text of the act, even
apart from legislative history and policy statements and all the rest which we haveprovisiont relied on in our brief. in writing it, i have to think through the nondelegation doctrine, if the strikes and he thought your mind. let's take the securities act of 34. what it says is you can't use a manipulative device, a fraudulent device that's the equivalent here of the sex offense. them inyou cannot use contravention of such rules as the fcc may describe as appropriate in the public interest. supposed instead of the word sec, it says attorney general.
when you have use, it is a crime to violate a rule where it concerns a manipulative device in violation of such rules as the attorney general finds appropriate. we don't think he's an expert on does that matter should it matter? should we suggest in the opinion that it might matter? mr. wall: so, to the extent it matters, here is what i think you could say in the opinion. if the executive official, the attorney general, were defining the elements of the offense or defining the criminal punishment, that would raise the touby question. but where the attorney general or the executive official is defining a civil requirement, as with the '34 act, to which criminal consequences can possibly attach, that falls squarely inside a handful of cases where the court has proved exactly that. so i think the court can set
aside the tougher case than this one where congress hasn't defined the elements of the offense and fixed the punishment itself but left those things to aside the tougher case than this the executive branch. i do want to say just a word about the harms here before i sit down so that we all understand what's in play. eighteen jurisdictions have substantially implemented sorna. the executive branch. of the remaining 32 states, 26 of them have taken federal funds and are attempting to substantially implement, but they're not there yet. if petitioner prevails, i believe, though petitioner's briefs don't say, that all of their arguments translate not just from the pre-act offender clause but also to the pre-implementation clause. and if that's right, there will be no federal duty to register in the 32 states that haven't substantially implemented. as a matter of federal law, more than half the country will be a sex offender registration-free zone. even in the remaining states, they will not be picking up new pre-act offenders who come into contact with the justice system
because there will no longer be a duty to register. all told, our best estimate is that we'll lose a couple of thousand people out of the registries every month, and that's not even including tribal areas, where we wouldn't be able to get at non-tribal members. and, of course, some substantial portion of the 4,000 convictions at issue would be in jeopardy of being vacated either on direct or collateral review. sorna's efficacy, if petitioner prevails, will not just be sharply curtailed. it will arguably be thoroughly gutted as a matter of how this federal law works. and if it is possible, and we think it is not just possible but the most natural interpretation of the attorney general's authority to say this is a narrow authority, to specify the applicability of
requirements in an on/off way in order to get people into the system, and that interpretation avoids constitutional problems, right, it's constitutional, if we read it to say do it as to the extent you can, then, as petitioner concedes, i think if that's -- if it's possible to read the statute that way, that's constitutional and that's what we would urge the court to do. if there are no further questions. justice roberts: thank you, mr. wall. ms. baumgartel, you have four minutes remaining. ms. baumgartel: thank you. just to pick up where my friend left off, i want to emphasize that prior to sorna's enactment, every single state had an existing sex offender registry and those will continue to exist and to require the registration of offenders, regardless of what happens with sorna. individuals like petitioner were required to register under existing state law and they will still be required to register. this was a law whose retroactive application was opposed by the states, which is part of the reason why only 18 states have implemented it. states spoke out against the retroactive application of the law before the attorney general made his determination. and so states themselves, who are the experts in this area having run registration systems for years, don't want this act to be fully retroactive. my friend emphasized that this delegation was all about practicality, but the reality is, is that the attorney general's promulgated rule does not account for practicality in
any way, which is further evidence for this court that to the extent feasible was not the standard of this delegation. standard of this delegation. that is not the standard that exists in the text. it is not the intelligible principle that was found by any circuit court to consider this issue. and it was not even the intelligible principle that the attorney general himself said that he was acting pursuant to when he issued his regulation. in his final regulation, he said that congress delegated to him, and i quote, "the discretion to apply sorna's requirements to sex offenders to the extent that he determines that the public benefits of doing so outweigh any adverse costs." so the attorney general believed that his discretion was to essentially undertake the fundamental policy determination as to whether the costs outweigh the benefits. he did not view this as an issue of feasibility or practicality. finally, i'd just like to emphasize the special nature of
this delegation. this is not licensing. this is not civil rule-making. this is the retroactive application of criminal law penalties that affect individual liberty interests in the most profound way. this is the area where the constitution specifies that there must be a division between the law-maker and between the executive. and for that reason, this delegation is unconstitutional. thank you. justice roberts: thank you, counsel. the case is submitted. >> tonight on "indicators," verizon's the key palmer on verizon's first implement 5g, interviewed by axial technology reporter david mccain. >> what's different about 5g? currency and 5g networks give us massive speed
and bandwidth. and we aree speed networks give us massivecallingd that's because we are using spectrum in the millimeterwave and itre's a lot of it translates to speed and throughput. >> watch "the communicators," on c-span two. >> congress is back in session tomorrow for a postelection lame-duck>> watch "the communicn session. they will direct the interior department to remove the gray wolf from the endangered species list and the house will swear in two new members who will fill vacant house seats until the end of the year. the senators to consider legislation on coast guard