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Gundy v. United States

United States Supreme Court

June 20, 2019

HERMAN AVERY GUNDY, PETITIONER
v.
UNITED STATES

          Argued October 2, 2018

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

         Congress has sought, for the past quarter century, to combat sex crimes and crimes against children through sex-offender registration schemes. The Sex Offender Registration and Notification Act (SORNA) makes more "uniform and effective" the prior "patchwork" of registration systems. Reynolds v. United States, 565 U.S. 432, 435. To that end, it requires a broader range of sex offenders to register and backs up those requirements with criminal penalties. Section 20913 elaborates the "[i]nitial registration" requirements for sex offenders. 34 U.S.C. §§20913(b), (d). Subsection (b) sets out the general rule: An offender must register "before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement." §20913(b). Subsection (d) addresses the "[i]nitial registration of sex offenders unable to comply with subsection (b)." The provision states that, for individuals convicted of a sex offense before SORNAs enactment ("pre-Act offenders"), the Attorney General "shall have the authority" to "specify the applicability" of SORNAs registration requirements and "to prescribe rules for [their] registration." §20913(d). Under that delegated authority, the Attorney General issued a rule specifying that SORNAs registration requirements apply in full to pre-Act offenders. Petitioner Herman Gundy, a pre-Act offender, was convicted of failing to register. Both the District Court and the Second Circuit rejected his claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to "specify the applicability" of SORNAs registration requirements to pre-Act offenders.

         Held: The judgment is affirmed.

         695 Fed.Appx. 639, affirmed.

          Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and JUSTICE SOTOMAYOR, concluded that §20913(d) does not violate the nondelegation doctrine. Pp. 4-18.

         (a) Article I of the Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." §1. Based on that provision, this Court explained early on that Congress may not transfer to another branch "powers which are strictly and exclusively legislative." Wayman v. Southard, 10 Wheat. 1, 42-43. But Congress may confer substantial discretion on executive agencies to implement and enforce the laws. Accordingly, the Court has held, time and time again, that a statutory delegation is constitutional as long as Congress "'lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise that authority] is directed to conform.'" Mistretta v. United States, 488 U.S. 361, 372. Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation. Only after a court has determined a challenged statute's meaning can it decide whether the law sufficiently guides executive discretion to accord with Article I. Pp. 4-6.

         (b) This Court has already interpreted §20913(d) to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible. In Reynolds v. United States, 565 U.S. 432, the Court held that SORNA's registration requirements did not apply of their own force to pre-Act offenders. But in doing so, it made clear how far SORNA limited the Attorney General's authority and thereby effectively resolved this case. The Court started from the premise that Congress meant for SORNA's registration requirements to apply to pre-Act offenders, based on the Act's statutory purpose, its definition of sex offender, and its history. But the Court found that Congress had conditioned pre-Act offenders' duty to register on a prior ruling from the Attorney General because "instantaneous registration" of pre-Act offenders "might not prove feasible." Id., at 440-441. SORNA, the majority explained, created a "practical problem[]" because it would require "newly registering or reregistering a large number of pre-Act offenders." Id., at 440. In addition, many pre-Act offenders were already out of prison and could not comply with the requirement that they register before completing their sentences. Congress therefore "[a]sk[ed] the Department of Justice, charged with responsibility for implementation, to examine [the issues] and to apply the new registration requirements accordingly." Id., at 441. On that understanding, the Attorney General's role under §20913(d) was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so. Pp. 6-10.

         (c) Gundy claims that §20913(d) empowers the Attorney General to do whatever he wants as to pre-Act offenders, including exempting them from registration forever. He bases that argument on the first half of §20913(d), isolated from everything else. But this Court has long refused to construe words "in a vacuum," as Gundy attempts. Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809. Rather, the Court interprets statutory provisions-including delegations-by reading the text in "context" and in light of the statutory "purpose." National Broadcasting Co. v. United States, 319 U.S. 190, 214, 216. Applying that approach here, it is clear that §20913(d) requires the Attorney General to register pre-Act offenders as soon as feasible. In SORNA's statement of purpose, Congress announced that "to protect the public," it was "establish[ing] a comprehensive national system for the registration" of "sex offenders." §20901. The term "comprehensive" means "all-encompassing" or "sweeping." That description could not fit the system SORNA created if the Attorney General could decline, for any reason or no reason at all, to apply SORNA to all pre-Act offenders. The Act's definition of "sex offender" makes the same point. Under that definition, a "sex offender" is "an individual who was convicted of a sex offense." §20911(1). Congress's use of the past tense shows that SORNA was not merely forward-looking and confirms that the delegation allows only temporary exclusions. The Act's legislative history backs that all up, by showing that the need to register pre-Act offenders was front and center in Congress's thinking. The text and title of §20913(d) then pinpoint one of the practical problems discussed above: At the moment of SORNA's enactment, many pre-Act offenders were "unable to comply" with the Act's initial registration requirements. §20913(d). In identifying that issue, §20913(d) itself reveals the nature of the delegation to the Attorney General. It was to give him the time needed (if any) to address the various implementation issues involved in getting pre-Act offenders into the registration system. Thus, contrary to Gundy, "specify the applicability" does not mean "specify whether to apply SORNA" to pre-Act offenders at all. The phrase instead means "specify how to apply SORNA" to pre-Act offenders if transitional difficulties require some delay. And no Attorney General has used §20913(d) in any more expansive way. Pp. 10-15.

         (d) Section 20913(d)'s delegation therefore falls well within constitutional bounds. As noted, a delegation is constitutional so long as Congress sets out an intelligible principle to guide the delegee's exercise of authority. The standards for that principle are not demanding. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 474-475. Only twice in this country's history has the Court found a delegation excessive, in each case because "Congress had failed to articulate any policy or standard" to confine discretion. Mistretta, 488 U.S., at 373, n. 3; see A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495; Panama Refining Co. v. Ryan, 293 U.S. 388. By contrast, the Court has over and over upheld even very broad delegations. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190. In that context, the delegation in SORNA easily passes muster. The authority §20913(d) confers, as compared to the delegations the Court has upheld in the past, is distinctly small bore. Indeed, if SORNA's delegation is unconstitutional, then most of Government is unconstitutional-dependent as Congress is on the need to give discretion to executive officials to implement its programs. Pp. 15-18.

         JUSTICE Alito concluded that he cannot say that the statute at issue lacks an adequately discernable standard under the nondelegation approach the Court has taken for the past 84 years, but would reconsider that approach in an appropriate case. P. 1.

          KAGAN, J., announced the judgment of the Court and delivered an opinion, in which GlNSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. GORSUCH, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KAVANAUGH, J., took no part in the consideration or decision of the case.

          OPINION

          KAGAN, J.

         The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. §20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not. Under §20913(d), the Attorney General must apply SORNAs registration requirements as soon as feasible to offenders convicted before the statute's enactment. That delegation easily passes constitutional muster.

         I

         Congress has sought, for the past quarter century, to combat sex crimes and crimes against children through sex-offender registration schemes. In 1994, Congress first conditioned certain federal funds on States' adoption of registration laws meeting prescribed minimum standards. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, §170101, 108 Stat. 2038, 42 U.S.C. §14071 et seq. (1994 ed.). Two years later, Congress strengthened those standards, most notably by insisting that States inform local communities of registrants' addresses. See Megan's Law, §2, 110 Stat. 1345, note following 42 U.S.C. §13701 (1994 ed., Supp. II). By that time, every State and the District of Columbia had enacted a sex-offender registration law. But the state statutes varied along many dimensions, and Congress came to realize that their "loopholes and deficiencies" had allowed over 100, 000 sex offenders (about 20% of the total) to escape registration. See H. R. Rep. No. 109-218, pt. 1, pp. 20, 23-24, 26 (2005) (referring to those sex offenders as "missing" or "lost"). In 2006, to address those failings, Congress enacted SORNA. See 120 Stat. 590, 34 U.S.C. §20901 et seq.

         SORNA makes "more uniform and effective" the prior "patchwork" of sex-offender registration systems. Reynolds v. United States, 565 U.S. 432, 435 (2012). The Act's express "purpose" is "to protect the public from sex offenders and offenders against children" by "establishing] a comprehensive national system for [their] registration." §20901. To that end, SORNA covers more sex offenders, and imposes more onerous registration requirements, than most States had before. The Act also backs up those requirements with new criminal penalties. Any person required to register under SORNA who knowingly fails to do so (and who travels in interstate commerce) may be imprisoned for up to ten years. See 18 U.S.C. §2250(a).

         The basic registration scheme works as follows. A "sex offender" is defined as "an individual who was convicted of specified criminal offenses: all offenses "involving a sexual act or sexual contact" and additional offenses "against a minor." 34 U.S.C. §§20911(1), (5)(A), (7). Such an individual must register-provide his name, address, and certain other information-in every State where he resides, works, or studies. See §§20913(a), 20914. And he must keep the registration current, and periodically report in person to a law enforcement office, for a period of between fifteen years and life (depending on the severity of his crime and his history of recidivism). See §§20915, 20918.

         Section 20913-the disputed provision here-elaborates the "[i]nitial registration" requirements for sex offenders. §§20913(b), (d). Subsection (b) sets out the general rule: An offender must register "before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement" (or, if the offender is not sentenced to prison, "not later than [three] business days after being sentenced"). Two provisions down, subsection (d) addresses (in its title's words) the "[i]nitial registration of sex offenders unable to comply with subsection (b)." The provision states:

"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 . . . 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)."

         Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA's enactment-a group we will call pre-Act offenders. Many of these individuals were unregistered at the time of SORNA's enactment, either because pre-existing law did not cover them or because they had successfully evaded that law (so were "lost" to the system). See supra, at 2. And of those potential new registrants, many or most could not comply with subsection (b)'s registration rule because they had already completed their prison sentences. For the entire group of pre-Act offenders, once again, the Attorney General "shall have the authority" to "specify the applicability" of SORNA's registration requirements and "to prescribe rules for [their] registration."

         Under that delegated authority, the Attorney General issued an interim rule in February 2007, specifying that SORNA's registration requirements apply in full to "sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 72 Fed. Reg. 8897. The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. 75 Fed. Reg. 81850. That rule has remained the same to this day.

         Petitioner Herman Gundy is a pre-Act offender. The year before SORNA's enactment, he pleaded guilty under Maryland law for sexually assaulting a minor. After his release from prison in 2012, Gundy came to live in New York. But he never registered there as a sex offender. A few years later, he was convicted for failing to register, in violation of §2250. He argued below (among other things) that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to "specify the applicability" of SORNA's registration requirements to pre-Act offenders. §20913(d). The District Court and Court of Appeals for the Second Circuit rejected that claim, see 695 Fed.Appx. 639 (2017), as had every other court (including eleven Courts of Appeals) to consider the issue. We nonetheless granted certiorari. 583 U.S. ___ (2018). Today, we join the consensus and affirm.

         II

         Article I of the Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." §1. Accompanying that assignment of power to Congress is a bar on its further delegation. Congress, this Court explained early on, may not transfer to another branch "powers which are strictly and exclusively legislative." Wayman v. Southard, 10 Wheat. 1, 42-43 (1825). But the Constitution does not "deny[] to the Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s]." Yakus v. United States, 321 U.S. 414, 425 (1944) (internal quotation marks omitted). Congress may "obtain[] the assistance of its coordinate Branches"-and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws. Mistretta v. United States, 488 U.S. 361, 372 (1989). "[I]n our increasingly complex society, replete with ever changing and more technical problems," this Court has understood that "Congress simply cannot do its job absent an ability to delegate power under broad general directives." Ibid. So we have held, time and again, that a statutory delegation is constitutional as long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform." Ibid, (quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); brackets in original).

         Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides. See, e.g., Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 473 (2001) (construing the text of a delegation to place constitutionally adequate "limits on the EPA's discretion"); American Power & Light Co. v. SEC, 329 U.S. 90, 104-105 (1946) (interpreting a statutory delegation, in light of its "purpose [, ] factual background[, and] context," to provide sufficiently "definite" standards). Only after a court has determined a challenged statute's meaning can it decide whether the law sufficiently guides executive discretion to accord with Article I. And indeed, once a court interprets the statute, it may find that the constitutional question all but answers itself.

         That is the case here, because §20913(d) does not give the Attorney General anything like the "unguided" and "unchecked" authority that Gundy says. Brief for Petitioner 37, 45. The provision, in Gundy's view, "grants the Attorney General plenary power to determine SORNAs applicability to pre-Act offenders-to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time." Id., at 42. If that were so, we would face a nondelegation question. But it is not. This Court has already interpreted §20913(d) to say something different-to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible. See Reynolds, 565 U.S., at 442-443. And revisiting that issue yet more fully today, we reach the same conclusion. The text, considered alongside its context, purpose, and history, makes clear that the Attorney General's discretion extends only to considering and addressing feasibility issues. Given that statutory meaning, Gundy's constitutional claim must fail. Section 20913(d)'s delegation falls well within permissible bounds.

         A

         This is not the first time this Court has had to interpret §20913(d). In Reynolds, the Court considered whether SORNAs registration requirements applied of their own force to pre-Act offenders or instead applied only once the Attorney General said they did. We read the statute as adopting the latter approach. But even as we did so, we made clear how far SORNA limited the Attorney General's authority. And in that way, we effectively resolved the case now before us.

         Everything in Reynolds started from the premise that Congress meant for SORNAs registration requirements to apply to pre-Act offenders. The majority recounted SORNA's "basic statutory purpose," found in its text, as follows: "the 'establishment of] a comprehensive national system for the registration of [sex] offenders' that includes offenders who committed their offenses before the Act became law." 565 U.S., at 442 (quoting §20901; emphasis and alterations in original; citation omitted). That purpose, the majority further noted, informed SORNA's "broad[]" definition of "sex offender," which "include[s] any 'individual who was convicted of a sex offense.'" Id., at 442 (quoting §20911(1); emphasis added). And those two provisions were at one with "[t]he Act's history." Id., at 442. Quoting statements from both the House and the Senate about the sex offenders then "lost" to the system, Reynolds explained that the Act's "supporters placed considerable importance upon the registration of pre-Act offenders." Ibid. In recognizing all this, the majority (temporarily) bonded with the dissenting Justices, who found it obvious that SORNA was "meant to cover pre-Act offenders." Id., at 448 (Scalia, J., dissenting). And indeed, the dissent emphasized that common ground, remarking that "the Court acknowledges" and "rightly believes" that registration of pre-Act offenders was "what the statute sought to achieve." Id., at 448-449.[1]

         But if that was so, why had Congress (as the majority held) conditioned the pre-Act offenders' duty to register on a prior "ruling from the Attorney General"? Id., at 441. The majority had a simple answer: "[I]nstantaneous registration" of pre-Act offenders "might not prove feasible," or "[a]t least Congress might well have so thought." Id., at 440-441, 443. Here, the majority explained that SORNA's requirements diverged from prior state law. See id., at 440; supra, at 2. Some pre-Act offenders (as defined by SORNA) had never needed to register before; others had once had to register, but had fulfilled their old obligations. And still others (the "lost" or "missing" offenders) should have registered, but had escaped the system. As a result, SORNA created a "practical problem[]": It would require "newly registering or reregistering a large number of pre-Act offenders." Reynolds, 565 U.S., at 440 (internal quotation marks omitted). And attached to that broad feasibility concern was a more technical one. Recall that under SORNA "a sex offender must initially register before completing his 'sentence of imprisonment.'" Id., at 439 (quoting §20913(b)); see supra, at 3. But many pre-Act offenders were already out of prison, so could not comply with that requirement. That inability raised questions about "how[] the new registration requirements applied to them." 565 U.S., at 441. "Congress['s] solution" to both those difficulties was the same: Congress "[a]sk[ed] the Department of Justice, charged with responsibility for implementation, to examine [the issues] and to apply the new registration requirements accordingly." Ibid.

         On that understanding, the Attorney General's role under §20913(d) was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so. That statutory delegation, the Court explained, would "involve[] implementation delay." Id., at 443. But no more than that. Congress had made clear in SORNA's text that the new registration requirements would apply to pre-Act offenders. See id., at 442-445. So (the Court continued) "there was no need" for Congress to worry about the "unrealistic possibility" that "the Attorney General would refuse to apply" those requirements on some excessively broad view of his authority under §20913(d). Id., at 444-445. Reasonably read, SORNA enabled the Attorney General only to address (as appropriate) the "practical problems" involving pre-Act offenders before requiring them to register. Id., at 440. The delegation was a stopgap, and nothing more.[2]

         Gundy dismisses Reynolds's relevance, but his arguments come up short. To begin, he contends that Reynolds spoke "tentatively]"-with "might[s], may[s], or could[s]"-about Congress's reasons for enacting §20913(d). Reply Brief 11; see supra, at 7 (quoting such phrases). Gundy concludes from such constructions- which are indeed present-that the Court was "not offering a definitive reading of the statute." Reply Brief 11. But the Court used those locutions to convey not its own uncertainty but Congress's. The point of the opinion was that Congress had questions about how best to phase SORNA's application to pre-Act offenders, so gave the Attorney General flexibility on timing. The "mights, mays, and coulds" were there to describe the legislative mindset responsible for §20913(d), and thus formed part of the Court's own-yes, "definitive"-view of that provision's meaning. Anticipating that explanation, Gundy falls back on the claim that the Court's account of Congress's motivations "cannot supply the intelligible principle Congress failed to enact into law." Id., at 12 (citing Whitman, 531 U.S., at 473). But the Court in Reynolds did not invent a standard Congress omitted. Rather, the Court read the statute to contain a standard-again, that the Attorney General should apply SORNA to pre-Act offenders as soon as feasible. And as the next part of this opinion shows, in somewhat greater detail than Reynolds thought necessary, we read the statute in the same way.

         B

         Recall again the delegation provision at issue. Congress gave the Attorney General authority to "specify the applicability" of SORNAs requirements to pre-Act offenders. §20913(d). And in the second half of the same sentence, Congress gave him authority to "prescribe rules for the registration of any such sex offenders . . . who are unable to comply with" subsection (b)'s initial registration requirement. Ibid. What does the delegation in §20913(d) allow the Attorney General to do?

         The different answers on offer here reflect competing views of statutory interpretation. As noted above, Gundy urges us to read §20913(d) to empower the Attorney General to do whatever he wants as to pre-Act offenders: He may make them all register immediately or he may exempt them from registration forever (or he may do anything in between). See Brief for Petitioner 41-42; supra, at 6. Gundy bases that argument on the first half of §20913(d), isolated from everything else-from the second half of the same section, from surrounding provisions in SORNA, and from any conception of the statute's history and purpose. Reynolds took a different approach (as does the Government here), understanding statutory interpretation as a "holistic endeavor" which determines meaning by looking not to isolated words, but to text in context, along with purpose and history. United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988).

         This Court has long refused to construe words "in a vacuum," as Gundy attempts. Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). "It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007) (internal quotation marks omitted); see Utility Air Regulatory Group v. EPA, 573 U.S. 302, 321 (2014) ("[R]easonable statutory interpretation must account for both the specific context in which . . . language is used and the broader context of the statute as a whole" (internal quotation marks omitted)). And beyond context and structure, the Court often looks to "history [and] purpose" to divine the meaning of language. Maracich v. Spears, 570 U.S. 48, 76 (2013) (internal quotation marks omitted). That non-blinkered brand of interpretation holds good for delegations, just as for other statutory provisions. To define the scope of delegated authority, we have looked to the text in "context" and in light of the statutory "purpose." National Broadcasting Co. v. United States, 319 U.S. 190, 214, 216 (1943) (internal quotation marks omitted); see American Power & Light, 329 U.S., at 104 (stating that the delegation at issue "derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context"). In keeping with that method, we again do so today.

         So begin at the beginning, with the "[declaration of purpose" that is SORNA's first sentence. §20901. There, Congress announced (as Reynolds noted, see supra, at 6-7) that "to protect the public," it was "establishing] a comprehensive national system for the registration" of "sex offenders and offenders against children." §20901. The term "comprehensive" has a clear meaning-something that is all-encompassing or sweeping. See, e.g., Webster's Third New International Dictionary 467 (2002) ("covering a matter under consideration completely or nearly completely"); New Oxford American Dictionary 350 (2d ed. 2005) ("complete; including all or nearly all elements or aspects of something"). That description could not fit the system SORNA created if the Attorney General could decline, for any reason or no reason at all, to apply SORNA to all pre-Act offenders. After all, for many years after SORNAs enactment, the great majority of sex offenders in the country would be pre-Act offenders. If Gundy were right, all of those offenders could be exempt from SORNAs registration requirements. So the mismatch between SORNAs statement of purpose and Gun-dy's view of §20913(d) is as stark as stark comes. Responding to that patent disparity, Gundy urges us to ignore SORNAs statement of purpose because it is "located in the Act's preface" rather than "tied" specifically to §20913(d). Brief for Petitioner 46. But the placement of such a statement within a statute makes no difference. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 220 (2012). Wherever it resides, it is "an appropriate guide" to the "meaning of the [statute's] operative provisions." Id., at 218. And here it makes clear that SORNA was supposed to apply to all pre-Act offenders-which precludes Gundy's construction of §20913(d).

         The Act's definition of "sex offender" (also noted in Reynolds, see supra, at 7) makes the same point. Under that definition, a "sex offender" is "an individual who was convicted of a sex offense." §20911(1). Note the tense: "was," not "is." This Court has often "looked to Congress' choice of verb tense to ascertain a statute's temporal reach," including when interpreting other SORNA provisions. Carr v. United States, 560 U.S. 438, 447-448 (2010) (holding that because SORNA "sets forth [its] travel requirement in the present tense," the statute's criminal penalties do not apply to a person whose interstate travel predated enactment); see, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987). Here, Congress's use of the past tense to define the term "sex offender" shows that SORNA was not merely forward-looking. The word "is" would have taken care of all future offenders. The word "was" served to bring in the hundreds of thousands of persons previously found guilty of a sex offense, and thought to pose a current threat to the public. The tense of the "sex offender" definition thus confirms that the delegation allows only temporary exclusions, as necessary to address feasibility issues. Contra Gundy, it does not sweep so wide as to make a laughingstock of the statute's core definition.

         The Act's legislative history backs up everything said above by showing that the need to register pre-Act offenders was front and center in Congress's thinking. (Once again, the Reynolds majority noted this history, but Justice Scalia's dissent thought that was gilding the lily. See supra, at 7, and n. 1. He had a point, but we can't resist.) Recall that Congress designed SORNA to address "loopholes and deficiencies" in existing registration laws. See supra, at 2. And no problem attracted greater attention than the large number of sex offenders who had slipped the system. According to the House Report, "[t]he most significant enforcement issue in the sex offender program is that over 100, 000 sex offenders" are "'missing,' meaning that they have not complied with" then-current requirements. H. R. Rep. No. 109-218, at 26. There is a "strong public interest," the Report continued, in "having [those offenders] register with current information to mitigate the risks of additional crimes against children." Id., at 24. Senators struck a similar chord in the debates preceding SORNA's passage, repeatedly stressing that the new provisions would capture the missing offenders. See, e.g., 152 Cong. Rec. 15338 (2006) (statement of Sen. Kyi) ("The penalties in this bill should be adequate to ensure that [the 100, 000 missing offenders] register"); id., at 13050 (statement of Sen. Frist) ("Every day that we don't have this national sex offender registry, these missing sex predators are out there somewhere"). Imagine how surprising those Members would have found Gundy's view that they had authorized the Attorney General to exempt the missing "predators" from registering at all.

         With that context and background established, we may return to §20913(d). As we have noted, Gundy makes his stand there (and there only), insisting that the lonesome phrase "specify the applicability" ends this case. See supra, at 10. But in so doing, Gundy ignores even the rest of the section that phrase is in. Both the title and the remaining text of that section pinpoint one of the "practical problems" discussed above: At the moment of SORNAs enactment, many pre-Act offenders were "unable to comply" with the Act's initial registration requirements. §20913(d); Reynolds, 565 U.S., at 440; see supra, at 8. That was because, once again, the requirements assumed that offenders would be in prison, whereas many pre-Act offenders were on the streets. In identifying that issue, §20913(d) itself reveals the nature of the delegation to the Attorney General. It was to give him the time needed (if any) to address the various implementation issues involved in getting pre-Act offenders into the registration system. "Specify the applicability" thus does not mean "specify whether to apply SORNA" to pre-Act offenders at all, even though everything else in the Act commands their coverage. The phrase instead means "specify how to apply SORNA" to pre-Act offenders if transitional difficulties require some delay. In that way, the whole of §20913(d) joins the rest of SORNA in giving the Attorney General only time-limited latitude to excuse pre-Act offenders from the statute's requirements. Under the law, he had to order their registration as soon as feasible.

         And no Attorney General has used (or, apparently, thought to use) §20913(d) in any more expansive way. To the contrary. Within a year of SORNAs enactment (217 days, to be precise), the Attorney General determined that SORNA would apply immediately to pre-Act offenders. See Interim Rule, 72 Fed. Reg. 8897; supra, at 4. That rule has remained in force ever since (save for a technical change to one of the rule's illustrative examples). See Final Rule, 75 Fed. Reg. 81850.[3] And at oral argument here, the Solicitor General's office-rarely in a hurry to agree to limits on the Government's authority- acknowledged that §20913(d) does not allow the Attorney General to excuse a pre-Act offender from registering, except for reasons of "feasibility." Tr. of Oral Arg. 41-42. We thus end up, on close inspection of the statutory scheme, exactly where Reynolds left us. The Attorney General's authority goes to transition-period implementation issues, and no further.

         C

         Now that we have determined what §20913(d) means, we can consider whether it violates the Constitution. The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA's registration requirements to pre-Act offenders as soon as feasible? Under this Court's long-established law, that question is easy. Its answer is no.

         As noted earlier, this Court has held that a delegation is constitutional so long as Congress has set out an "intelligible principle" to guide the delegee's exercise of authority. J. W. Hampton, Jr., & Co., 276 U.S., at 409; see supra, at 5. Or in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the dele gee "the general policy" he must pursue and the "boundaries of [his] authority." American Power & Light, 329 U.S., at 105. Those standards, the Court has made clear, are not demanding. "[W]e have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" Whitman, 531 U.S., at 474-475 (quoting Mistretta, 488 U.S., at 416 (Scalia, J., dissenting)). Only twice in this country's history (and that in a single year) have we found a delegation excessive-in each case because "Congress had failed to articulate any policy or standard" to confine discretion. Mistretta, 488 U.S., at 373, n. 7 (emphasis added); see A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the "public interest." See, e.g., National Broadcasting Co., 319 U.S., at 216; New York Central Securities Corp. v. United States, 287 U.S. 12, 24 (1932). We have sustained authorizations for agencies to set "fair and equitable" prices and "just and reasonable" rates. Yakus, 321 U.S., at 422, 427; FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). We more recently affirmed a delegation to an agency to issue whatever air quality standards are "requisite to protect the public health." Whitman, 531 U.S., at 472 (quoting 42 U.S.C. §7409(b)(1)). And so forth.

         In that context, the delegation in SORNA easily passes muster (as all eleven circuit courts to have considered the question found, see supra, at 4). The statute conveyed Congress's policy that the Attorney General require pre-Act offenders to register as soon as feasible. Under the law, the feasibility issues he could address were administrative-and, more specifically, transitional-in nature. Those issues arose, as Reynolds explained, from the need to "newly register[] or reregister[] 'a large number' of pre-Act offenders" not then in the system. 565 U.S., at 440; see supra, at 8. And they arose, more technically, from the gap between an initial registration requirement hinged on imprisonment and a set of pre-Act offenders long since released. See 565 U.S., at 441; see supra, at 8. Even for those limited matters, the Act informed the Attorney General that he did not have forever to work things out. By stating its demand for a "comprehensive" registration system and by defining the "sex offenders" required to register to include pre-Act offenders, Congress conveyed that the Attorney General had only temporary authority. Or again, in the words of Reynolds, that he could prevent "instantaneous registration" and impose some "implementation delay." 565 U.S., at 443. That statutory authority, as compared to the delegations we have upheld in the past, is distinctly small-bore. It falls well within constitutional bounds.[4]

         Indeed, if SORNAs delegation is unconstitutional, then most of Government is unconstitutional-dependent as Congress is on the need to give discretion to executive officials to implement its programs. Consider again this Court's long-time recognition: "Congress simply cannot do its job absent an ability to delegate power under broad general directives." Mistretta, 488 U.S., at 372; see supra, at 5. Or as the dissent in that case agreed: "[S]ome judgments . . . must be left to the officers executing the law." 488 U.S., at 415 (opinion of Scalia, J.); see Whitman, 531 U.S., at 475 ("[A] certain degree of discretion[] inheres in most executive" action (internal quotation marks omitted)). Among the judgments often left to executive officials are ones involving feasibility. In fact, standards of that kind are ubiquitous in the U.S. Code. See, e.g., 12 U.S.C. §1701z-2(a) (providing that the Secretary of Housing and Urban Development "shall require, to the greatest extent feasible, the employment of new and improved technologies, methods, and materials in housing construe -tion[] under [HUD] programs"); 47 U.S.C. §903(d)(1) (providing that "the Secretary of Commerce shall promote efficient and cost-effective use of the spectrum to the maximum extent feasible" in "assigning frequencies for mobile radio services"). In those delegations, Congress gives its delegee the flexibility to deal with real-world constraints in carrying out his charge. So too in SORNA.

         It is wisdom and humility alike that this Court has always upheld such "necessities of government." Mistretta, 488 U.S., at 416 (Scalia, J., dissenting) (internal quotation marks omitted); see ibid. ("Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the 'necessities' of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political ... it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law"). We therefore affirm the judgment of the Court of Appeals.

         It is so ordered.

          JUSTICE Kavanaugh took no part in the consideration or decision of this case.

          JUSTICE ALITO, concurring in the judgment.

         The Constitution confers on Congress certain "legislative [p]owers," Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid.

         If 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.

         Because I cannot say that the statute lacks a discern-able standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

          Justice Gorsuch, with whom The Chief Justice and Justice Thomas join, dissenting.

         The Constitution promises that only the people's elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation's chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

         Today, a plurality of an eight-member Court endorses this extraconstitutional arrangement but resolves nothing. Working from an understanding of the Constitution at war with its text and history, the plurality reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the Attorney General. But JUSTICE ALITO supplies the fifth vote for today's judgment and he does not join either the plurality's constitutional or statutory analysis, indicating instead that he remains willing, in a future case with a full Court, to revisit these matters. Respectfully, I would not wait.

         I

         For individuals convicted of sex offenses after Congress adopted the Sex Offender Registration and Notification Act (SORNA) in 2006, the statute offers detailed instructions. It requires them "to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries."[1] The law divides offenders into three tiers based on the seriousness of their crimes: Some must register for 15 years, others for 25 years, and still others for life.[2] The statute proceeds to set registration deadlines: Offenders sentenced to prison must register before they're released, while others must register within three business days after sentencing.[3] The statute explains when and how offenders must update their registrations.[4] And the statute specifies particular penalties for failing to comply with its commands.[5] On and on the statute goes for more than 20 pages of the U.S. Code.

         But what about those convicted of sex offenses before the Act's adoption? At the time of SORNA's enactment, the nation's population of sex offenders exceeded 500, 000, and Congress concluded that something had to be done about these "pre-Act" offenders too. But it seems Congress couldn't agree what that should be. The treatment of pre-Act offenders proved a "controversial issue with major policy significance and practical ramifications for states."[6]Among other things, applying SORNA immediately to this group threatened to impose unpopular and costly burdens on States and localities by forcing them to adopt or overhaul their own sex offender registration schemes.[7] So Congress simply passed the problem to the Attorney General. For all half-million pre-Act offenders, the law says only this, in 34 U.S.C. §20913(d):

"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 . . . and to prescribe rules for the registration of any such sex offender."

         Yes, that's it. The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast. As the Department of Justice itself has acknowledged, SORNA "does not require the Attorney General" to impose registration requirements on pre-Act offenders "within a certain time frame or by a date certain; it does not require him to act at all."[8] If the Attorney General does choose to act, he can require all pre-Act offenders to register, or he can "require some but not all to register."[9] For those he requires to register, the Attorney General may impose "some but not all of [SORNA's] registration requirements," as he pleases.[10]And he is free to change his mind on any of these matters "at any given time or over the course of different [political] administrations."[11] Congress thus gave the Attorney General free rein to write the rules for virtually the entire existing sex offender population in this country-a situation that promised to persist for years or decades until pre-Act offenders passed away or fulfilled the terms of their registration obligations and post-Act offenders came to predominate.

         Unsurprisingly, different Attorneys General have exercised their discretion in different ways.[12] For six months after SORNAs enactment, Attorney General Gonzales left past offenders alone. Then the pendulum swung the other direction when the Department of Justice issued an interim rule requiring pre-Act offenders to follow all the same rules as post-Act offenders.[13] A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders.[14] Three years after that, Attorney General Holder required the States to register only those pre-Act offenders convicted of a new felony after SORNAs enactment.[15]Various Attorneys General have also taken different positions on whether pre-Act offenders might be entitled to credit for time spent in the community before SORNA was enacted.[16]

         These unbounded policy choices have profound consequences for the people they affect. Take our case. Before SORNA's enactment, Herman Gundy pleaded guilty in 2005 to a sexual offense. After his release from prison five years later, he was arrested again, this time for failing to register as a sex offender according to the rules the Attorney General had then prescribed for pre-Act offenders. As a result, Mr. Gundy faced an additional 10-year prison term-10 years more than if the Attorney General had, in his discretion, chosen to write the rules differently.

         II

         A

         Our founding document begins by declaring that "We the People . . . ordain and establish this Constitution." At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people's sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government's legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.

         To the framers, each of these vested powers had a distinct content. When it came to the legislative power, the framers understood it to mean the power to adopt generally applicable rules of conduct governing future actions by private persons-the power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated, "[17] or the power to "prescribe general rules for the government of society."[18]

         The framers understood, too, that it would frustrate "the system of government ordained by the Constitution" if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.[19] Through the Constitution, after all, 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. As Chief Justice Marshall explained, Congress may not "delegate . . . powers which are strictly and exclusively legislative."[20] Or as John Locke, one of the thinkers who most influenced the framers' understanding of the separation of powers, described it:

"The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said we will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be ...

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