NOTICE: This opinion is subject to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–6549
_________________
BILLY JOE REYNOLDS, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[January 23, 2012]
Justice Breyer
delivered the opinion of the Court.
The federal Sex
Offender Registration and Notification Act (Act), 120Stat. 590, 42
U. S. C. §16901 et seq. (2006 ed. and Supp. III),
requires those convicted of certain sex crimes to provide state
governments with (and to update) information, such as names and
current addresses, for inclusion on state and federal sex offender
registries. §§16912(a), 16913–16914, 16919(a) (2006 ed.). The Act
makes it a crime for a person who is “required to regis- ter” under
the Act and who “travels in interstate or foreign commerce”
knowingly to “fai[l] to register or update a reg- istration
. . . .” 18 U. S. C. §2250(a). The
question be- fore us concerns the date on which this federal
registra- tion requirement took effect with respect to sex
offenders convicted before the Act became law.
The Act defines the
term “sex offender” as including these pre-Act offenders. 42
U. S. C. §16911(1); see Carr v. United States, 560
U. S. ___, ___ (2010) (slip op., at 7). It says that “[a] sex
offender shall register.” §16913(a). And it further says that
“[t]he Attorney General shall have the authority to specify the
applicability of the [registration] requirements . . . to
sex offenders convicted before the enactment of this chapter
. . . .” §16913(d) (emphasis added). In our view,
these provisions, read together, mean that the Act’s registration
requirements do not apply to pre-Act offenders until the Attorney
General specifies that they do apply. We reverse a Court of Appeals
determination that, in effect, holds the contrary.
I
A
The new federal Act
reflects Congress’ awareness that pre-Act registration law
consisted of a patchwork of fed- eral and 50 individual state
registration systems. See 73 Fed. Reg. 38045 (2008). The Act seeks
to make those systems more uniform and effective. It does so by
repealing several earlier federal laws that also (but less
effectively) sought uniformity; by setting forth comprehensive
registration-system standards; by making federal funding contingent
on States’ bringing their systems into compliance with those
standards; by requiring both state and federal sex offenders to
register with relevant jurisdictions (and to keep registration
information current); and by creating federal criminal sanctions
applicable to those who violate the Act’s registration
requirements. 18 U. S. C. §2250(a) (criminal provision);
42 U. S. C. §§16911(10), 16913–16916 (2006 ed. and Supp.
III) (registration requirements); §16925 (federal funding); §129,
120Stat. 600 (repeal of earlier laws).
The Act’s criminal
penalty applies to “[w]ho[m]ever . . . is required to
register under [the Act].” 18 U. S. C. §2250(a). It says
that such a person (a federal sex offender or a nonfederal sex
offender who travels in interstate commerce) must not knowingly
fail “to register or update a registration as required by [the
Act].” Ibid. (emphasis added); see Appendix, infra, at 14.
The relevant
registration requirements are set forth in an Act provision that
states:
“Registry requirements for sex offenders
“(a) In general
“A sex offender
[defined to include any offender who was convicted of a sex
offense] shall register, and keep the registration current, in each
jurisdiction where the offender resides, where the offender is an
employee, and where the offender is a
student. . . .
“(b) Initial registration
“The sex offender
shall initially register [either] before completing a sentence of
imprisonment with respect to the offense giving rise to the
registration re- quirement; or [for those not sentenced to prison]
not later than 3 business days after being sentenced
. . . .
“(c) Keeping the registration current
“A sex offender shall
[update his registration within] 3 business days after each change
of name, residence, employment, or student status [by] appear[ing]
in person in at least 1 jurisdiction involved . . . and
inform[ing] that jurisdiction of all [relevant] changes
. . . .
“(d) Initial registration of sex offenders
unable to comply with subsection (b)
“The Attorney General
shall have the authority to specify the applicability of the
[registration] requirements . . . to sex offenders
convicted before the en- actment of this chapter or its
implementation in a particular jurisdiction, 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
subsection (b).” 42 U. S. C. §16913 (emphasis added).
The new Act became law on July 27, 2006.
On February 28, 2007,
the Attorney General promulgated an Interim Rule specifying that
“[t]he requirements of [the Act] apply to all sex offenders,
including sex offenders convicted of the offense for which
registration is required prior to the enactment of that Act.” 72
Fed. Reg. 8897 (codified at 28 CFR §72.3). Subsequently, the
Attorney General promulgated further rules, regulations, and
specifications. See 73 Fed. Reg. 38030 (2008); 75 Fed. Reg. 81849
(2010); 76 Fed. Reg. 1630 (2011). The present case focuses upon the
applicability of the Act’s registration requirements to pre-Act
offenders during the period between (1) July 27, 2006 (when the Act
took effect) and (2) the moment when the Attorney General
promulgated a valid rule specifying the registration requirements’
ap- plicability, namely, February 28, 2007 (or a later date if the
February 28 specification was invalid).
B
Billy Joe Reynolds,
the petitioner, is a pre-Act offender. He was convicted of a
Missouri sex offense in October 2001; he served four years in
prison; he was released in July 2005; he then registered as a
Missouri sex offender; but he moved to Pennsylvania in September
2007 without updating his Missouri registration information (as
Missouri law required) and without registering in Pennsylvania. A
federal grand jury indicted him, charging him with, between
September 16 and October 16, 2007, having “knowingly failed to
register and update a registration as required by [the Act].” App.
13; see 18 U. S. C. §2250(a). In the Government’s view,
Reynolds’ failure to update his address information when he moved
to Pennsylvania violated the requirement that a “sex offender”
update registration information within “3 business days after each
change of . . . residence.” 42 U. S. C.
§16913(c).
Reynolds moved to
dismiss the indictment on the ground that in September and October
2007 the Act’s reg- istration requirements had not yet become
applicable to pre-Act offenders. He conceded that the Act had
become law earlier (namely, in July 2006), and he conceded that the
Attorney General had already (in February 2007) promulgated an
Interim Rule specifying that the Act’s registration requirements
were applicable to pre-Act offenders. But he claimed that the
Interim Rule was invalid because it violated both the
Constitution’s “nondel- egation” doctrine and the Administrative
Procedure Act’s (APA) requirement for “good cause” to promulgate a
rule without “notice and comment” (as the Attorney General had
done). See A. L. A. Schechter Poultry Corp. v. United States, 295
U. S. 495, 529 (1935) (nondelegation doctrine); 5
U. S. C. §§553(b)(3)(B), (d)(3) (APA). Because the
Interim Rule is invalid, he added, the law must treat him like a
pre-Act offender who traveled interstate and violated the Act’s
registration requirements before the Attorney General specified
their applicability.
The District Court
rejected on the merits Reynolds’ legal attack on the Interim Rule.
But the Court of Appeals rejected Reynolds’ argument without
reaching those merits. 380 Fed. Appx. 125 (2010). That court
thought that the Act’s registration requirements apply to pre-Act
offenders such as Reynolds (who was subject to a pre-existing
state-law registration requirement) from the date of the new law’s
enactment—even in the absence of any rule or regulation by the
Attorney General specifying that the new registration requirements
apply. That being so, the validity of the Interim Rule could make
no legal dif- ference, for the Act required Reynolds to follow the
new federal registration requirements regardless of any
rulemaking.
The Courts of Appeals
have reached different conclusions about whether the Act’s
registration requirements apply to pre-Act offenders prior to the
time that the Attorney General specifies their applicability, i.e.,
from July 2006 until at least February 2007. Six Circuits have held
that the Act’s registration requirements do not apply to pre-Act
offenders unless and until the Attorney General so specifies.
United States v. Johnson, 632 F. 3d 912, 922–927 (CA5 2011); United
States v. Valverde, 628 F. 3d 1159, 1162–1164 (CA9 2010); United
States v. Cain, 583 F. 3d 408, 414–419 (CA6 2009); United States v.
Hatcher, 560 F. 3d 222, 226–229 (CA4 2009); United States v. Dixon,
551 F. 3d 578, 585 (CA7 2008); United States v. Madera, 528 F. 3d
852, 856–859 (CA11 2008) (per curiam). Five Circuits have held
that they apply from the date of the Act’s enactment, and prior to
any such specification, at least with respect to pre-Act offenders
who had already registered under state law. United States v.
Fuller, 627 F. 3d 499, 506 (CA2 2010); United States v. DiTomasso,
621 F. 3d 17, 24 (CA1 2010); United States v. Shenandoah, 595 F. 3d
151, 163 (CA3 2010); United States v. Hinckley, 550 F. 3d 926, 932
(CA10 2008); United States v. May, 535 F. 3d 912, 918–919 (CA8
2008). In light of this split, we agreed to consider the
question.
II
A
The question before
us is whether the Act requires pre-Act offenders to register before
the Attorney General validly specifies that the Act’s registration
provisions ap- ply to them. We believe that it does not. For one
thing, a natural reading of the textual language supports our
conclusion. The text consists of four statements. See supra, at 3.
Statement One says that “[a] sex offender shall register, and keep
the registration current.” Statement Two says that a sex offender
must initially register before completing his “sentence of
imprisonment” (or, if the sentence does not involve imprisonment,
within three days of conviction). Statement Three says that the sex
offender must update a registration within three business days of
any change of “name, residence, employment, or student status.”
Statement Four says that “[t]he Attorney General shall have the
authority to specify the applicability of the requirements of this
subchapter to sex offenders convicted before the enactment of this
chapter.”
Read naturally, the
Fourth Statement modifies the First. It specifically deals with a
subset (pre-Act offenders) of a broad general class (all sex
offenders) to which the First Statement applies. And it therefore
should control the Act’s application to that subset. See
Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991)
(specific statutory provision normally controls over one of more
general application); see also Bloate v. United States, 559
U. S. ___, ___ (2010) (slip op., at 10) (same).
At the same time, the
Fourth Statement says that the Attorney General has authority to
specify the Act’s “applicability,” not its “nonapplicability.” And
it consequently is more naturally read as conferring the authority
to apply the Act, not the authority to make exceptions. That is how
we normally understand a term such as “authority to specify” in the
context of applying new rules to persons already governed by
pre-existing rules. If, for example, the Major League Baseball
Players Association and the team owners agreed that the
Commissioner of Baseball “shall have the authority to specify the
applicability” to the major leagues of the more stringent minor
league drug testing policy, we should think that the minor league
policy would not apply unless and until the Commissioner so
specified.
For another thing, this
reading of the Act efficiently resolves what Congress may well have
thought were practical problems arising when the Act sought to
apply the new registration requirements to pre-Act offenders. The
problems arise out of the fact that the Act seeks to make more
uniform a patchwork of pre-existing state systems. Doing so could
require newly registering or re-registering “a large number” of
pre-Act offenders. That effort could prove expensive. And it might
not prove feasible to do so immediately. See 73 Fed. Reg. 38063
(recognizing these problems). Congress’ concern about these
problems is re- flected in the Act’s providing the States with
three years to bring their systems into compliance with federal
standards while permitting the Attorney General to extend that
3-year grace period to five years. 42 U. S. C.
§16924.
These same
considerations might have warranted different federal registration
treatment of different categories of pre-Act offenders. Cf. 73 Fed.
Reg. 38035–38036, and 38046–38047 (final Department of Justice
guidelines allowing States to meet Act requirements without
registering certain categories of pre-Act offenders); 76 Fed. Reg.
1635–1636 (supplemental guidelines allowing the same). At least
Congress might well have so thought. And consequently, Congress
might well have looked for a solution. Asking the Department of
Justice, charged with respon- sibility for implementation, to
examine these pre-Act offender problems and to apply the new
registration requirements accordingly could have represented one
efficient and desirable solution (though we express no view on
Reynolds’ related constitutional claim). Cf. 42 U. S. C.
§§16912(b), 16914(a)(7), (b)(7), 16919, 16941, 16945 (granting the
Attorney General authority to administer various aspects of the
Act). And that is just the solution that the Act’s language says
that Congress adopted.
Finally, our reading of
the Act takes Congress to have filled potential lacunae (created by
related Act provisions) in a manner consistent with basic
background principles of criminal law. The Second Statement, for
example, says that a sex offender must register before completing
his prison term, but the provision says nothing about when a
pre-Act offender who completed his prison term pre-Act must
register. Although a state pre-Act offender could not be prosecuted
until he traveled interstate, there is no interstate requirement
for a federal pre-Act offender. And to apply the Act to either of
these pre-Act offenders from the date of enactment would require
reading into the statute, silent on the point, some kind of unsaid
equivalent (e.g., registering or updating within a “reasonable
time” or “within three days of first post-Act travel in interstate
commerce” or “as preexisting state law requires”).
Pre-Act offenders,
aware of such complexities, lacunae, and difficulties, might, on
their own, reach different conclusions about whether, or how, the
new registration requirements applied to them. A ruling from the
Attorney General, however, could diminish or eliminate those
uncertainties, thereby helping to eliminate the very kind of
vagueness and uncertainty that criminal law must seek to avoid.
Cf., e.g., United States v. Lanier, 520 U. S. 259, 266 (1997)
(noting that “the canon of strict construction of criminal
statutes, or rule of lenity, ensures fair warning by so resolving
ambiguity in a criminal statute as to apply it only to conduct
clearly covered”).
B
The Government makes
three principal arguments to the contrary. First, it says that our
interpretation of the Act conflicts with one basic statutory
purpose, namely, the “establish[ment of] a comprehensive national
system for the registration of [sex] offenders,” 42
U. S. C. §16901, that includes offenders who committed
their offenses before the Act became law. The Act reflects that
purpose when it defines “sex offender” broadly to include any
“individual who was convicted of a sex offense.” §16911(1). And we
have recognized that purpose in stating that, in general, the Act’s
criminal provisions apply to any pre-Act offender required to
register under the Act who later travels interstate and fails to
register. See Carr, 560 U. S., at ___ (slip op., at 7).
The Act’s history also
reveals that many of its supporters placed considerable importance
upon the registration of pre-Act offenders. See, e.g., H. R.
Rep. No. 109–218, pt. 1, p. 24 (2005) (H. R. Rep.) (“[Twenty]
percent of sexual offenders are ‘lost,’ and there is a strong
public interest in finding them and having them register with
current information to mitigate the risks of additional crimes
against children”); 152 Cong. Rec. 15333 (2006) (statement of Sen.
Cantwell) (“Child sex offenders have exploited this stunning lack
of uniformity, and the consequences have been tragic. Twenty
percent of the Nation’s 560,000 sex offenders are ‘lost’ because
State offender registry programs are not coordinated well enough”);
id., at 15338 (statement of Sen. Kyl) (“There currently are over
100,000 sex offenders in this country who are required to register
but are ‘off the system.’ They are not registered. The penalties in
this bill should be adequate to ensure that these individuals
register”); id., at 13050 (statement of Sen. Frist) (“There are
currently 550,000 registered sex offenders in the U. S. and at
least 100,000 of them are missing from the system. Every day that
we don’t have this national sex offender registry, these missing
sex predators are out there somewhere”).
The difficulty with the
Government’s argument, how- ever, is that it overstates the need
for instantaneous registration of pre-Act offenders. Our different
reading, we concede, involves implementation delay. But that delay
need not be long (the Attorney General issued his Interim Rule 217
days after the effective date of the new law). And that delay can
be justified by the need to accommodate other Act-related
interests. See supra, at 7–9.
Second, the Government
suggests that our reading leads to an absurd result. As it points
out, the Fourth Statement grants the Attorney General the
“authority to specify” the registration requirements’ applicability
not only to pre-Act offenders but also to those convicted prior to
the “implementation” of the new Act “in a particular jurisdiction.”
Some jurisdictions might not implement the Act for up to five
years. See 42 U. S. C. §16924; see also Dept. of
Justice, Office of Justice Programs, Justice Department Finds 24
Jurisdictions Have Substantially Implemented SORNA Requirements
(July 28, 2011) (stating that as of July 28, 2011, 14 States had
implemented the Act’s requirements),
http://www.ojp.usdoj.gov/newsroom/
pressreleases/2011/SMART_PR-072811.htm (all Internet materials as
visited Jan. 19, 2012, and available in Clerk of Court’s case
file). Yet, the Government concludes, it is absurd to believe that
Congress would have desired so long a delay in the application of
its new registration requirements.
The problem with this
argument, however, is that reading the two categories similarly (a
matter which we need not decide) would not require a long delay in
applying the registration requirements to post-Act offenders who
committed a crime in a jurisdiction that is slow to implement the
new requirements. At most, that reading would require the Attorney
General to promulgate a rule applicable to all preimplementation
offenders. That rule could specify that the Act’s preregistration
provisions apply to some or to all those offenders. And it could do
so quickly, well before a jurisdiction implements the Act’s
requirements. Indeed, the Attorney General’s Interim Rule and the
Department of Justice’s final guidelines, both issued before any
jurisdiction implemented the Act’s requirements, state that the
Act’s requirements apply to “all sex offenders,” including all
preimplementation offenders. See 72 Fed. Reg. 8897 (codified at 28
CFR §72.3); 73 Fed. Reg. 38036; cf. Dept. of Justice, Office of
Justice Programs, Justice Department Announces First Two
Jurisdictions to Implement Sex Offender Registration and Notifica-
tion Act (Sept. 23, 2009), http://www.ojp.usdoj.gov/newsroom/
pressreleases/2009/SMART09154.htm.
Third, the Government
argues against our interpretation on the ground that the Act says
only that the At- torney General “shall have the authority to
specify the applicability” of the Act’s registration requirements
to pre-Act offenders; it does not say that he “shall specify” or
otherwise require him to do so. The Act’s language, the Government
continues, consequently gives the Attorney General the power not to
specify anything; that power is inconsistent with Congress’ intent
to ensure the speedy registration of thousands of “lost” pre-Act
offenders, supra, at 10; and we can avoid this result only by
reading the Act’s registration requirements as applying immedi-
ately and on their own to all pre-Act offenders (though the
Attorney General would have the power to make exceptions).
This argument bases too
much upon too little. There is no reason to believe that Congress
feared that the Attorney General would refuse to apply the new
requirements to pre-Act offenders. See, e.g., H. R. Rep., at
23–24; Protecting Our Nation’s Children from Sexual Predators and
Violent Criminals: What Needs To Be Done? Hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security of the
House Committee on the Judiciary, 109th Cong., 1st Sess., 4–13
(2005); Office of the Press Sec’y, The White House, President Signs
H. R. 4472, the Adam Walsh Child Protection and Safety Act of
2006 (July 27, 2006), http://georgewbush-whitehouse.archives.gov/
news/releases/2006/07/20060727-6.html. And there was no need for a
mandatory requirement to avoid that unrealistic possibility. There
is consequently no need to read the language unnaturally as giving
the Attorney General the authority only to make exceptions from an
implicit (unstated) rule that would otherwise apply the new
registration requirements to all pre-Act offenders across the board
and immediately.
Finally, we note that
some lower courts have read the Attorney General’s specification
authority as applying only to those pre-Act sex offenders unable to
comply with the statute’s “initial registration” requirements. See
42 U. S. C. §16913(b). That, however, is not what the
statute says. Rather, its Fourth Statement, §16913(d), says that
the Attorney General has the authority (1) to specify the
applicability of the registration requirements to pre-Act (and
preimplementation) offenders, “and ” (2) to prescribe rules
for their registration, “and ” (3) to prescribe registration
rules for other categories of sex offenders who are unable to
comply with the initial registration requirements. See supra, at 3.
The word “and” means that the Attorney General’s authority extends
beyond those pre-Act “sex offenders who are unable to comply” with
the initial registration requirements.
III
For these reasons, we
conclude that the Act’s registration requirements do not apply to
pre-Act offenders until the Attorney General so specifies. Whether
the Attorney General’s Interim Rule sets forth a valid
specification consequently matters in the case before us. And we
reverse the Third Circuit’s judgment to the contrary. We remand the
case for further proceedings consistent with this opinion.
So ordered.
APPENDIX
18 U. S. C. §2250(a)
“In general.—Whoever—
“(1) is required to
register under the Sex Offender Registration and Notification
Act;
“(2)(A) is a sex
offender as defined for the purposes of the Sex Offender
Registration and Notification Act by reason of a conviction under
Federal law (including the Uniform Code of Military Justice), the
law of the District of Columbia, Indian tribal law, or the law of
any territory or possession of the United States; or
“(B) travels in
interstate or foreign commerce, or enters or leaves, or resides in,
Indian country; and
“(3) knowingly fails
to register or update a registration as required by the Sex
Offender Registration and Notification Act;
“shall be fined under this title or imprisoned
not more than 10 years, or both.”
42 U. S. C. §16913
“Registry requirements for sex offenders
“(a) In general
“A sex offender shall
register, and keep the registration current, in each jurisdiction
where the offender resides, where the offender is an employee, and
where the offender is a student. For initial registration purposes
only, a sex offender shall also register in the jurisdiction in
which convicted if such jurisdiction is different from the
jurisdiction of residence.
“(b) Initial registration
“The sex offender
shall initially register—(1) before completing a sentence of
imprisonment with respect to the offense giving rise to the
registration requirement; or (2) not later than 3 business days
after being sentenced for that offense, if the sex offender is not
sentenced to a term of imprisonment.
“(c) Keeping the registration current
“A sex offender shall,
not later than 3 business days after each change of name,
residence, employment, or student status, appear in person in at
least 1 jurisdiction involved pursuant to subsection (a) and inform
that jurisdiction of all changes in the information required for
that offender in the sex offender registry. That jurisdiction shall
immediately provide that information to all other jurisdictions in
which the offender is required to register.
“(d) Initial registration of sex offenders
unable to comply with subsection (b)
“The Attorney General
shall have the authority to specify the applicability of the
requirements of this subchapter to sex offenders convicted before
the enactment of this chapter or its implementation in a particular
jurisdiction, 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 subsection (b).
“(e) State penalty for failure to comply
“Each jurisdiction,
other than a Federally recognized Indian tribe, shall provide a
criminal penalty that includes a maximum term of imprisonment that
is greater than 1 year for the failure of a sex offender to comply
with the requirements of this subchapter.”
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–6549
_________________
BILLY JOE REYNOLDS, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[January 23, 2012]
Justice Scalia, with
whom Justice Ginsburg joins, dissenting.
In my view, the
registration requirements of the Sex Offender Registration and
Notification Act (Act), 120Stat. 590, 42 U. S. C. §16901 et seq.
(2006 ed. and Supp. III), apply of their own force, without action
by the Attorney General. The Act’s statement that “[t]he Attorney
General shall have the authority to specify the applicability of
the [registration] requirements” to pre-Act sex offenders,
§16913(d), is best understood as conferring on the Attorney General
an authority to make exceptions to the otherwise applicable
registration requirements.
To begin with, I do not
share the Court’s belief that to “specify the applicability” more
naturally means, in the present context, to “make applicable”
rather than to “make inapplicable.” See ante, at 7. The example the
Court gives, the Commissioner of Baseball’s “ ‘authority to
spec-ify the applicability’ ” of more stringent minor-league
drug testing policies to the major leagues, ibid., is entirely
inapt, because it deals with a policy that on its face is otherwise
not applicable. Since the major leagues are not covered by the
policies, the Commissioner’s “ ‘authority to specify [their]
applicability’ ” can mean nothing else but the authority to
render them applicable. What we have here, however, is a statute
that states in unqualified terms that “a sex offender shall
register,” §16913(a)—and that the Court rightly believes was meant
to cover pre-Act offenders.* The issue is whether “specify the
applicability” means that no pre-Act offenders need register unless
the Attorney General says so, or rather that the Attorney General
may excuse the unqualified requirement for pre-Act offenders. In
that context, it seems to me that the latter meaning is more
natural. One specifies the applicability of an application that
already exists by describing or revising its contours.
I think it preferable
to give “specify” this meaning not only because here it is more
natural, but also because the alternative is to read the statute as
leaving it up to the Attorney General whether the registration
requirement would ever apply to pre-Act offenders, even though
registration of pre-Act offenders was (as the Court acknowl-edges)
what the statute sought to achieve. For the statute does not
instruct the Attorney General to specify; it merely gives him
“authority” to do so. In this respect, the provision at issue here
stands in marked contrast to other provisions of the Act which
clearly impose duties on the Attorney General. See, e.g., §16912(b)
(“The Attorney General shall issue guidelines and regulations to
interpret and implement this subchapter”); §16917(b) (“The Attorney
General shall prescribe rules for the notification of [certain] sex
offenders”); §16919(a) (“The Attorney General shall maintain a
national database”); §16926(a) (“The Attorney General shall
establish and implement a Sex Offender Management Assistance
program”).
The Court’s response to
this—that “there was no need for a mandatory requirement to avoid
[the] unrealistic possibility” that the Attorney General would not
specify, ante, at 12—seems to me a fine answer to the question
“What mandatory requirements must a poorly drafted statute contain
in order to be workable?” It is an inadequate answer, however, to
the question that is relevant here: “Would Congress have written
the provision this way if it wanted pre-Act offenders covered and
did not think they were covered absent specification by the
Attorney Gen-eral?” Intelligently drafted statutes make mandatory
those executive acts essential to their functioning, whether or not
those acts would likely occur anyway. It would have taken little
effort (in fact, less effort) for Congress to write “the Attorney
General shall specify the applicability” instead of “the Attorney
General shall have authority to specify the applicability.” The
latter formulation confers discretion, and it is simply implausible
that the Attorney General was given discretion to determine whether
coverage of pre-Act offenders (one of the purposes of the Act)
should exist.
Indeed, it is not
entirely clear to me that Congress can constitutionally leave it to
the Attorney General to decide—with no statutory standard whatever
governing his discretion—whether a criminal statute will or will
not apply to certain individuals. That seems to me sailing close to
the wind with regard to the principle that legislative powers are
nondelegable, see Whitman v. American Trucking Assns., Inc., 531
U. S. 457 –476 (2001); Loving v. United States, 517 U. S.
748 –777 (1996) (Scalia, J., concurring in part and concurring in
judgment), and “[i]t is our settled policy to avoid an
interpretation of a federal statute that engenders constitutional
issues if a reasonable alternative interpretation poses no
constitutional question.” Gomez v. United States, 490 U. S.
858, 864 (1989) . Construing the Act to give the Attorney General
the power to reduce congressionally imposed requirements fits that
bill, because such a power is little more than a formalized version
of the time-honored practice of prosecutorial discretion.
The Court points out
that there might have been need for “different federal registration
treatment of different categories of pre-Act offenders,” ante, at
8, and that absent a “ruling from the Attorney General” pre-Act
offenders would be uncertain “about whether, or how, the new
registration requirements applied to them,” ante, at 9. But
attending to those details would certainly come within the Attorney
General’s authority to “specify” application of the Act—and so
would the temporary suspension of registration requirements pending
the Attorney General’s reso-lution of those details. And of course
the uncertainty of where to register could form the basis for the
Attorney General’s exercise of his discretion not to prosecute in
individual cases. Neither problem, it seems to me, justifies the
extraordinary interpretation that this Act does not apply to
pre-Act offenders unless and until the Attorney General, in his
discretion, says so.
For these reasons, I
respectfully dissent.