In his brief concurrence, Justice Samuel Alito began by stating his frustration with the Court’s established approach to nondelegation arguments, emphasizing that the Constitution confers legislative powers to Congress and doesn’t allow it to delegate those powers to another branch of government. He wrote that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” 

Ultimately, Alito explained that he joined the plurality because SORNA has a “discernable standard that is adequate under the approach this Court has taken for many years.”  

In his dissenting opinion, Justice Neil Gorsuch emphasized the vast authority granted to the Attorney General under SORNA, stating that Congress’ delegation “gave the Attorney General free rein to write the rules for virtually the entire existing sex offender population.” Gorsuch pointed out that different Attorneys General have exercised the discretion granted by SORNA in different ways to illustrate the inconsistency created by it. He argued that “[t]hese unbounded policy choices have profound consequences for the people they affect,” since the requirements for sex offender registration differs substantially depending on who’s in office at the time.  

Gorsuch then turned to the Constitution, explaining that the framers understood that allowing Congress to “announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals” would frustrate our system of government. He stated that through the Constitution, “the people had vested the power to prescribe rules limiting their liberties in Congress alone. No one, not even Congress, had the right to alter that arrangement.” 

Explaining the importance of this principle, Gorsuch stated that the framers believed that the most dangerous power of the federal government was the power to enact laws restricting people’s liberty. To avoid an “excess of lawmaking,” the framers intentionally made the process difficult and designed it to promote deliberation. He also explained that the framers insisted on a legislature composed of different bodies to ensure that any new law had to secure the approval of a supermajority of Congress, and limiting that role would negatively impact its accountability to the people. He argued that “[w]ithout the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President.” 

Gorsuch then established the test used to determine whether Congress unconstitutionally divested legislative powers, breaking it into three parts. First, Congress may authorize another branch to “fill the details” so long as it made the policy decisions regulating private conduct. Second, Congress may make the application of its rule depend on executive fact-finding. Third, Congress may assign the executive and judicial branches certain non-legislative responsibilities.  

Gorsuch argued that “no one thinks that the Court’s quiescence can be attributed to an unwavering new tradition of more scrupulously drawn statutes.” Instead, he found that the most likely explanation lies with the “intelligible principle” doctrine that originated in J.W. Hampton, Jr., & Co. v. United States (1928). Gorsuch explained that the principle “eventually began to take on a life of its own,” and criticized the “mutated version” of it as having “no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.” He stated that “[t]o leave this aspect of the constitutional structure alone undefended would serve only to accelerate the flight of power from the legislative to the executive branch, turning the latter into a vortex of authority that was constitutionally reserved for the people’s representatives in order to protect their liberties.” 

Regarding SORNA, Gorsuch wrote that “[i]t’s hard to see how SORNA leave the Attorney General with only details to fill up.” He pointed out that the Attorney General has the power to choose which, if any, pre-Act offenders are subject to its requirements and that those requirements may be changed at any time. He also noted that this delegation “appears to have been deliberate” because members of Congress couldn’t agree on how to treat pre-Act offenders. He emphasized that SORNA doesn’t contain “a single policy decision concerning pre-Act offenders on which Congress even tried to speak, and not a single other case where we have upheld executive authority over matters like these on the ground they constitute mere ‘details.’”  

Gorsuch noted that “[i]t would be easy enough to let this case go” since sex offenders “are one of the most disfavored groups in society.” However, he emphasized that “the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else,” and it’s not hard to imagine the power of a prosecutor to require a certain group to register with the government under threat of criminal penalty could be abused in other settings. He stated that “[t]o allow the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing . . . would be to mark the end of any meaningful enforcement of our separation of powers and invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.” 

Responding to the argument that revival of the non-delegation doctrine would “spell doom” for the administrative state, Gorsuch explained that “Congress is hardly bereft of options to accomplish all it might wish to achieve.” He stated that Congress can commission agencies or experts to study and recommend legislative language. Further, Congress may authorize executive branch officials to fill in a large number of details, find facts to trigger a generally applicable rule, or exercise non-legislative powers.  

Gorsuch concluded that the Court failed to rectify the consequences invited by SORNA, “resolving nothing and deferring everything.” He noted that “[i]n a future case with a full panel, I remain hopeful 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. That ‘is delegation running riot.’”