Reynolds v. United States – Oral Argument – October 03, 2011

Media for Reynolds v. United States

Audio Transcription for Opinion Announcement – January 23, 2012 in Reynolds v. United States

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John G. Roberts, Jr.:

We’ll hear argument next in case 10-6549, Reynolds v. United States.

Ms. Cain.

Candace Cain:

Mr. Chief Justice, and may it please the Court:

Recognizing that certain offenders convicted before enactment or implementation of SORNA would be unable to comply with SORNA’s initial registration requirement, Congress included section 16913(d) delegating to the Attorney General the authority to determine whether and how to apply SORNA’s registration requirements to those offenders.

Mr. Reynolds is one of those offenders because he was convicted, sentenced and released from prison a year before SORNA was enacted.

But for a valid Mr. Chief Justice, and may it exercise of the Attorney General’s authority under subsection (d), Mr. Reynolds had no obligation to register SORNA, could not initially register under SORNA, and therefore was not subject to SORNA’s criminal penalties.

Action by the Attorney General was needed to bring offenders like Mr. Reynolds into the new system, and because those implementing SORNA, in determining whether and how SORNA would be applied to pre-enactment offenders, would require time and consideration, Congress left the Wetterling Act registration law in place for 3 years to ensure that all offenders would be covered under the old law.

And until–

John G. Roberts, Jr.:

Was the — is the Wetterling Act retroactive?

Candace Cain:

–The Wetterling Act, Your Honor, was remaining in place for 3 years and had a sort of a sunset provision under–

John G. Roberts, Jr.:

No, no, I know.

That’s going forward.

But was the requirement to register under the Wetterling Act, did that apply as of the enactment date or did that reach back?

Candace Cain:

–Your Honor, actually the Wetterling Act was not effective for a year into the future.

John G. Roberts, Jr.:

So you think it only applied to that year?

Candace Cain:

No, I’m sorry.

The Wetterling Act was enacted in 1996.

John G. Roberts, Jr.:

So if the offense were committed in 1994, did that person have to register under the Wetterling Act?

Candace Cain:

They had to register, but there were no criminal penalties.

At that point it was a 1994 law called Wetterling, and 2 years after under the Lychner Act criminal penalties were added.

Our reading better accords with the text and congressional intent–

Sonia Sotomayor:

Could you clarify that answer?

The — are you admitting that there were no criminal enforcement options for the Attorney General under the Wetterling Act for acts committed prior to 1996?

Is that what you’re saying?

Candace Cain:

–Your Honor, the Wetterling Act as it was enacted in 1994 was a registration requirement without criminal penalties.

In 1996 the Lychner Act was enacted amending Wetterling and added a criminal penalty, the Federal penalty of one-year punishment for failure to register.

Sonia Sotomayor:

And that included all individuals who had — who had been convicted of sex abuse acts before 1996?

Candace Cain:

I don’t know.

Our reading better accords with the text of SORNA and congressional intent, but the government reading is simply not reasonable.

If SORNA would apply to all pre-enactment and pre-implementation offenders on day 1, and the Attorney General could then modify in the future, which would in fact — in effect repeal SORNA as to some offenders, then you could have a situation where someone was convicted of an offense and then have to be covered under SORNA, and then later the AG could decide that that group was not required to register.

Ruth Bader Ginsburg:

Well, maybe — maybe the Attorney General doesn’t have that power.

But your position is that whether this behavior, not registering, is criminal or not, is left up to the Attorney General — is left up to the executive.

Do we have other examples where Congress says, well, we don’t know whether this should be a criminal offense, so we’re going to leave it to the Attorney General?

It’s quite different to say the Attorney General will implement it in the technical details, but to say that whether it’s a criminal offense or not is up to the Attorney General, is there any other instance where that’s so?

Candace Cain:

Your Honor, I’m not aware of any, but we don’t — this is not what the Attorney General is doing.

This is — SORNA is a civil registration requirement and the Attorney General’s deciding whether someone has to register.

In order for a criminal indictment to be brought, a person would have to travel and then fail to register.

So it’s really not actually deciding whether someone would be guilty of a crime or convicted of a crime or exposed to a crime.

Anthony M. Kennedy:

I — maybe I just don’t grasp the core of the case then.

I thought this was a criminal conviction and that you were arguing that it’s a criminal conviction because the conduct that’s prohibited by the statute was conduct that covered this class of people by order of the Attorney General under the interim regs.

Is that wrong?

Candace Cain:

Your Honor, actually what we are seeking is the ability to contest the Attorney General’s rule.

We’re saying–

Anthony M. Kennedy:

I’m asking, isn’t this is criminal conviction that resulted from the fact that your client was within the class of persons covered by the statute?

The government says they are covered anyway — You say they are covered only because the Attorney General acted, but then you say it’s a criminal — it’s a civil provision?

I — I–

Candace Cain:

–Well, Your Honor, it is — failure to register and then travel — I mean travel and then fail to register after you are obligated under SORNA to register is a crime, yes.

Antonin Scalia:

Well, I — you know, my problem is, that’s very strange.

I — I find it very strange to — to leave it up to the Attorney General whether something will be a crime or not.

It will be a crime if the Attorney General says so and it won’t be a crime if he doesn’t.

I mean, especially leave it up to the Attorney General, for Pete’s sake; he’s the prosecutor.

You know, it will be a crime if the prosecutor thinks it is and it won’t be a crime if the prosecutor thinks it isn’t.

I — I don’t know of any parallel and — and I — I think it’s — it’s sailing close to the edge of unconstitutionality; whereas, what the other side claims is simply, it’s a crime to begin with, but the Attorney General can make it not a crime.

That’s sort of like prosecutorial discretion.

In — in his — in his judgment, if it shouldn’t be a crime, you know — I have trouble with that, too.

But it’s a lot closer to prosecutorial discretion than — than — than what you’re asking us to accept, that something is a crime only if the Attorney General says it’s a crime.

seems to me very strange.

Candace Cain:

Well, Your Honor, that’s really That what the text says, and our reading — but–

Ruth Bader Ginsburg:

But now we do — the Attorney General has spoken.

The first time, you say it was ineffective because there was no notice and comment.

Ruth Bader Ginsburg:

But from — what is it — August of 1908, we have a rule, a final rule, that did go through notice and comment.

So are we talking about, is this case simply about the period from February 1907 to August 1908, and that’s — that’s all that’s involved in this case, only those people?

Or are you contesting that after August 1908, you still have some kind of claim?

Candace Cain:

–Well, Your Honor, our case does not involve the time period after August of 2008.

Ruth Bader Ginsburg:

So — so this whole case is about what happens between February ’07 and August ’08, and that’s the limit of it.

Candace Cain:

Right.

Ruth Bader Ginsburg:

Because there was no rule at all before February ’07 and there was a rule August ’08?

So it’s just that period this case is about?

Candace Cain:

Yes.

Our client traveled in ’07.

Samuel A. Alito, Jr.:

It’s the period from the enactment of SORNA until the adoption of the SMART guidelines, right?

That’s what we’re talking about?

Candace Cain:

Well, Your Honor, if the SMART guidelines are deemed valid, yes.

That was — in 2008.

Our client traveled in 2007.

And so the Attorney General’s interim rule is the rule that would subject him to criminal liability.

Sonia Sotomayor:

Excuse me.

Let me go back to that question, counselor — to that answer.

Let’s assume we accepted the Solicitor General’s understanding of the rule, that it was illegal to travel — that you had to be — had to register from the start of SORNA.

What challenge do you have left either to the interim rule in 2007 or to the final rules in 2008?

make?

What — what challenge could you conceivably make?

Candace Cain:

Your Honor, if the statute applies from Day 1 we would still contest the interim rule for — the Attorney General took action but did not exclude our client.

The Attorney General did what he was authorized to do–

Sonia Sotomayor:

What would be the basis of that challenge?

Candace Cain:

–Pardon me?

Sonia Sotomayor:

What would have obligated him to take your client out of SORNA?

Candace Cain:

The exercise of his discretion to not take him out–

Sonia Sotomayor:

Could you — could you tell me why?

Candace Cain:

–Because–

Sonia Sotomayor:

What would be an abuse of his discretion if he didn’t take your client out?

standing.

argument.

Candace Cain:

–Because he had exercised his discretion under subsection (d) and decided not to exclude our client from the–

Sonia Sotomayor:

But we’re in a circular argument.

Candace Cain:

–Statute.

Sonia Sotomayor:

What would have commanded him to take your client out?

Candace Cain:

It would be his discretion.

Sonia Sotomayor:

You — you would have to bring some sort of suit that said he abused his discretion.

On what basis would he have — what would be your claim of abuse other than, I really want my client out?

Candace Cain:

Well, that he would have standing.

That’s what we’re trying to — we’re trying to get standing to contest the interim rule.

Sonia Sotomayor:

But what impact would the interim rules have had on you?

Candace Cain:

If the statute applied from Day 1 without the interim rule, we still would — that is what the standing issue is about.

We’re saying that the interim rule is the only rule that gave — gave the Government the ability to include Mr. Reynolds in the prosecution.

John G. Roberts, Jr.:

You have a notice — notice and comment claim, right?

Candace Cain:

Yes.

Yes, Your Honor.

Ruth Bader Ginsburg:

But what — but what you’re challenging is interim rule, because there was no notice and comment.

So you would have had no challenge, not from the date of SORNA’s enactment, but from the date of the rule that you’re challenging — and that rule was February ’07.

Your challenge is to invalidity of the interim rule, right?

Candace Cain:

That’s right.

Ruth Bader Ginsburg:

Okay.

So — but before there was an interim rule, you would have no such challenge.

Candace Cain:

No, but the SORNA would not apply to Mr. Reynolds before then.

Ruth Bader Ginsburg:

You might have some other case, but this case is about a challenge to a rule as invalid.

That’s — that’s — as I understand it, so that had to be a rule in order for you to make the challenge.

Candace Cain:

I’m sorry, I missed the last part.

Ruth Bader Ginsburg:

You are challenging the — the Attorney General’s first rule as invalid, the February ’07 rule.

You say–

Candace Cain:

That’s right.

Ruth Bader Ginsburg:

–You say it’s invalid because there was no notice and comment.

You have no challenge — your challenge doesn’t reach before that, because there was no rule before that.

So that you can — the earliest point is when the rule was adopted, you’re saying the rule was invalid.

So that’s why I said the brackets are from when there was an allegedly invalid rule, which was in February ’07, until when there’s a valid rule, which is in August of ’08.

Candace Cain:

That’s right, Your Honor.

I mean–

John G. Roberts, Jr.:

No, that’s not.

No.

Your argument as I understand it is there was no notice and comment when he issued the interim rule.

Candace Cain:

–Right.

John G. Roberts, Jr.:

If there had been notice and comment, you would have jumped in with comments that would have convinced the Attorney General not to apply the rule to your client.

Candace Cain:

That’s right.

John G. Roberts, Jr.:

Okay.

Antonin Scalia:

And your argument is further that without the rule, SORNA doesn’t exist, right?

Candace Cain:

For our client.

Antonin Scalia:

Right.

Candace Cain:

He is unable to comply with the initial registration provision under (b) because he was released from prison a year before SORNA was enacted, so he could not meet either one of the descriptions of initial registration.

Stephen G. Breyer:

That doesn’t mean — that doesn’t mean SORNA doesn’t apply, it means 2250 didn’t apply.

Candace Cain:

That’s right.

Stephen G. Breyer:

Is it that right.

Candace Cain:

Well–

Stephen G. Breyer:

It might be a metaphysical, but it may be that Congress intended the statute to apply to people like your client, but the question is when the initial registration has to take place, and I took you as saying until the Attorney General acts, we don’t know, so 2250 doesn’t — doesn’t criminalize a failure until he can know when he’s supposed to register.

Candace Cain:

–Register under SORNA, that’s right.

Stephen G. Breyer:

That’s right.

Okay.

Candace Cain:

The problem is here that the prosecution — the Attorney General’s office is substituting a state registration for the initial registration under SORNA, and that’s just not what the text says.

Elena Kagan:

Ms. Cain, why do you think Congress would have written the text in this way?

You said it was very complicated and Congress was worried about different problems, the way different registrations overhappened on each other but exactly what was so complicated?

Why couldn’t Congress just have applied the statute to people in Mr. Reynold’s situation itself?

Candace Cain:

Well, even the government agrees in their brief that there are complications.

Elena Kagan:

I was going to ask the What are the government the same question.

What are the complications that Congress was so worried about?

Candace Cain:

Some sex offenders, you know, from the various states, there were state laws that were varied amongst each other, and there was a federal Wetterling Act that had its own periods of registration and different requirements.

And I think that, um, one of the permutations, some of them are that some sex offenders never had to register in some states; some had been convicted before and had served out their time and no longer had to register; and some were released from prison, you know, before the enactment or implementation of SORNA.

And an example of a permutation that was going to have some cloth for consideration is the one that’s sort of an example in a different context, in the federal register and in the government’s brief which is that certain people who had served their time and were completely out of the system, if they got rearrested for a misdemeanor, the Attorney General decided that those individuals did not have to register for a state to be deemed substantially implemented with respect to SORNA.

And so that’s an example of a type of decision, a complication that the Attorney General was particularly well-suited to deciding in making that determination.

Sonia Sotomayor:

Arrested for a misdemeanor to do what?

Candace Cain:

Any arrest for a misdemeanor that would bring a previous offender back in the system, if that person was just convicted of a misdemeanor, they would not — the state would not have to re-register them in order to be deemed substantially compliant with SORNA and get the firm grant money.

Sonia Sotomayor:

I thought Justice Kagan’s question was, what would have stopped Congress from just saying: You have to register on the day of passage.

There was nothing to stop Congress from doing that, correct?

Candace Cain:

They could have done that, but they were concerned about how you get the older conviction, the older pre-enactment people into the new system.

Sonia Sotomayor:

That’s your reason for why they didn’t do that.

They didn’t make it automatic, correct?

That’s your argument?

Candace Cain:

Right.

They wanted to have a new registration, a new system that would start from a certain point that would bring in new requirements.

And the problem is how to get the people with the older convictions and the older registrations into the system.

And that would be done with initial registration.

But Mr. Reynolds–

Elena Kagan:

Well, why is — Why is it easier for the Attorney General to do that by regulation than for Congress simply to do it by the statute itself?

What did they expect to happen in the regulatory process that would solve these problems for them?

Candace Cain:

–Well, I think that it’s more flexible to have a regulation, and takes perhaps less time than legislation to think of all the different permutations.

They don’t know every state’s laws and every state’s capabilities.

And so it was more flexible.

And they could respond more quickly to changes.

Ruth Bader Ginsburg:

Well, it seems — Is this case — What would compliance entail other than simply telling the Missouri authority that he had to register, was registered in Missouri, telling Missouri authority that he was moving to another state.

That’s all he had to do, right, to comply?

Candace Cain:

Comply with Missouri’s law?

The state law?

Ruth Bader Ginsburg:

To comply with the SORNA requirement, that he would have to tell the Missouri authority that he was moving to another state.

And then Missouri would have an obligation to tell that other state he’s there.

Candace Cain:

Well, Your Honor, that’s — Your question assumes that state registration would suffice for SORNA.

And respectfully, the — SORNA was not enacted until–

Ruth Bader Ginsburg:

But I’m talking about SORNA has been enacted, and now he’s moving after SORNA is enacted, right?

Candace Cain:

–Right.

Well that’s–

Ruth Bader Ginsburg:

Okay.

So SORNA is on the books.

He’s registered in Missouri.

He’s leaving the state to comply with SORNA.

What does he have to do other than tell the original state: I’m moving to another state?

Candace Cain:

–Well, he would have to comply with the requirements of initial registration under SORNA.

Those contain more requirements than under the Missouri–

Ruth Bader Ginsburg:

Well, he can’t comply with the initial registration because he committed a crime even before SORNA was enacted.

Candace Cain:

–I’m just–

Ruth Bader Ginsburg:

But now, what would he have to do to be in compliance–

Candace Cain:

–With Missouri law, with state law, would be to comply with Missouri law tell Missouri he is leaving and then go to Pennsylvania and comply with Pennsylvania law, perhaps.

And that’s also not a SORNA registration; that’s a registration under state law.

We know from Carr that SORNA is — doesn’t create an obligation until the statute’s effective date.

And the statute’s effective date is after a valid Attorney General regulation for purposes of people like Mr. Reynolds.

Elena Kagan:

Could you tell me this, Ms. Cain.

You may have said this, and I may just have missed it.

But under the new regulations, a man who’s in the position of your client and who cannot initially register under (b), b just doesn’t fit his circumstances, does he now have to initially register again, or does his initial registration stick and he just has to update it when he moves?

Candace Cain:

The initial registration under SORNA could be updated.

The state registration that he may have already done in the past is not a SORNA registration.

He would have to register initially again, and that is a new registration.

And that would be what Congress intended, because their goal was to not have a patchwork of regulations and rules.

So it would be a new registration, but an update of a SORNA registration is certainly possible, yes.

Ruth Bader Ginsburg:

–Under the current regulation, under the 19 — I mean the ’08 regulations, wouldn’t be enough to comply for somebody in his situation, to comply simply by telling his parole officer: I’m moving to the other state, under the regulation that says how this is implemented?

Candace Cain:

Actually, Your Honor, no.

We actually don’t know the answer to that question, because the Attorney General has not issued regulations instructing offenders what to do.

They have simply issued guidelines telling the states what they can do to substantially implement SORNA.

So we don’t really know the answer to that question.

The point is that the requirement to initially register under SORNA was not effective until the Attorney General — could not be effective until the Attorney General said so.

And that’s what the statute says under (d).

And that if you look at how the government is reading the statue, you apply it from day one, but yet they have the ability to modify SORNA, which in effect means to repeal SORNA’s effect as to someone in the future.

That also would cause a lot of complications, especially in the context I mentioned where someone with a misdemeanor, you know, may be part of the group that doesn’t have to register in the future, but they had to at some point, and–

Sonia Sotomayor:

Let’s — Is there anything — If I understand the Solicitor General’s position, all your client had to do after SORNA was passed was after a reasonable amount of time, or upon his travel, to tell Missouri, which was his state of conviction, that he was moving.

Correct?

Candace Cain:

–If you — They say that he was not part of the people that could register within a normal, I mean, a reasonable amount of time because of the state registration.

Sonia Sotomayor:

Right.

Candace Cain:

But assuming that that wasn’t the case, assuming he was, you know, just–

Sonia Sotomayor:

No, I’m not assuming that.

Candace Cain:

–Okay.

Sonia Sotomayor:

Would he have been in compliance with SORNA under the final rules today, the interim rules when they were passed, or on the date that he left if he had when he traveled, or a reasonable time thereafter, told his state of conviction that he had moved?

Would that have been enough?

Candace Cain:

No, Your Honor.

Sonia Sotomayor:

What does he have to do in addition to that under the interim or final rules?

Candace Cain:

We don’t know.

Because, again, the Attorney General has not issued regulations or guidelines telling offenders what to do.

They have only issued guidelines telling jurisdictions how they can substantially implement SORNA.

So it’s not as though — He cannot register under SORNA until the Attorney General specifies that he–

Ruth Bader Ginsburg:

That was the answer that you gave to my question, which was the same thing: Why isn’t it sufficient now for him simply to tell his parole officer he’s moving.

Candace Cain:

–Oh, sorry.

Yes.

It would not be sufficient.

I mean, it — he has to initially register to register under SORNA.

And he can’t do that until the Attorney General issued a valid rule, which — we are contesting that the 2007 rule is not valid.

We’re saying that our client has standing to make that challenge; we were denied the ability to do that below.

Candace Cain:

And I would like to reserve my time if there’s no further questions.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Sherry.

Melissa Arbus Sherry:

Mr. Chief Justice, and may it please the Court:

If I could start by answering your question, Your Honor, about the Wetterling Act, it was not retroactive.

It did not apply to pre-enactment conduct.

It defined a sex offender, unlike SORNA, as somebody who is convicted of a sex offense, and in guidelines issued after Wetterling and after several subsequent amendments to the Wetterling Act, the Attorney General interpreted it as only requiring States to register offenders that are convicted not only post-enactment, but post-implementation by the State.

And one such cite is–

Antonin Scalia:

Post what?

Melissa Arbus Sherry:

–Post-implementation by the States.

And so 61 Federal Register cite 15112 is And so just one example of that type of regulation.

And so when Congress enacted SORNA, it switched from “is convicted” to “was convicted” in order to include pre-enactment offenders.

Justice Kagan, to get to your question about why is it all so complicated, our answer is that it really is not.

There is no reason why it couldn’t have applied on day 1 to all pre-enactment and pre-implementation offenders.

And to start off, when you look about all pre-enactment and pre-implementations, this is an incredibly large class.

There is existing sex offenders on day 1 and all existing sex offenders from many months and years going forward while the States proceed towards implementation.

Stephen G. Breyer:

So why–

Elena Kagan:

But then as I indicated.

Why would Congress have given you the authority to exempt people?

It seems to me that the — the burden is on you in the exact same way it is on Ms. Cain.

Melissa Arbus Sherry:

In our view, what subsection (d) was, essentially, was a safety valve.

It wasn’t something that Congress thought the Attorney General was going to need to use, but it was something that was there for the Attorney General should problems arise in the course of implementation.

Samuel A. Alito, Jr.:

What would happen in — in this situation: Someone is convicted of a sex offense before SORNA is enacted; the shortly after the statute is enacted the person moves to a new State, does not register; then after that the Attorney General exercising the authority that you say he has under — exercising — excuse me, exercising the authority under subsection (d), determines that SORNA shouldn’t apply to people who were convicted of offenses before its enactment?

Would that person have committed a criminal offense?

Melissa Arbus Sherry:

I think at the — at the time he acted, yes.

I suppose the Attorney General could decide whether or not he is going to apply his regulation prospectively or retrospectively.

But I think the important point is the same result is reached under Petitioner’s view.

In Petitioner’s view, the Attorney General has full and complete control of the light switch.

Congress didn’t do anything, simply left it for the Attorney General to simply turn the lights on.

We don’t think that’s right for a number of different reasons, one of which is the way Congress that delegated authority to Attorney General in subsection (d).

Melissa Arbus Sherry:

If–

Samuel A. Alito, Jr.:

Well, if Congress wasn’t sure whether it wanted — whether it was appropriate to apply SORNA retroactively, and — I just — and therefore was willing to leave that to the Attorney General, then I don’t understand why it would have made the Act applicable immediately upon enactment–

Melissa Arbus Sherry:

–Our–

Samuel A. Alito, Jr.:

–pending a determination by the Attorney General.

Melissa Arbus Sherry:

–Our understanding is that Congress did know that it wanted to include as a general matter all pre-enactment — and again, not pre-enactment but pre-implementation offenders as — offenders as well, and I think we know that because when you look to the provisions that actually speak to what a sex offender was required to do under the Act — and there are six such provisions — they all start the same way; they say that the sex offender shall do something.

And it defines the sex offender as somebody who was convicted.

When you look at all six of those provisions on their face, they apply to all sex offenders so defined without any qualification.

And Petitioner’s view is that despite that clear language, despite the lack of any qualification within those provisions, by virtue of subsection (d) what Congress is really saying is that nobody has to register until the Attorney General says otherwise.

Stephen G. Breyer:

–Well, so–

Sonia Sotomayor:

So how do they know where to register?

Do you agree with your adversary that — that they have to register under SORNA?

Melissa Arbus Sherry:

No, they don’t have to register under SORNA.

Sonia Sotomayor:

So how were they supposed to know when or how they would register until the Attorney General acted?

Melissa Arbus Sherry:

So, if I could break it up into a few classes.

Again, we are talking about pretty much — actually we are talking about everybody on day 1.

And for a number of pre-enactment and pre-implementation offenders, they are still going to be in prison on the day that SORNA was enacted.

Sonia Sotomayor:

I’m not talking about those people.

Melissa Arbus Sherry:

Okay.

Sonia Sotomayor:

Not the people who can comply with (b).

Melissa Arbus Sherry:

Okay.

Sonia Sotomayor:

I’m talking about the people–

Melissa Arbus Sherry:

The people in the second group I was going to talk about are offenders like Reynolds, who have already registered before SORNA was enacted.

They are already initially registered.

It’s the very same State registry system that’s created — that’s SORNA.

There is no creation of any SORNA registry and the statute itself doesn’t talk about a SORNA compliant registry.

To the contrary, it defines a sex offender registry in 16911, subsection 9.

It’s on page 10A of our brief.

It defines a sex offender registry as a registry of sex offenders maintained by a jurisdiction.

So these are the same registries that have been in existence in all 50 States for the last decade.

So offenders like Reynolds don’t have to do anything under (b); (b) simply doesn’t apply to them.

Melissa Arbus Sherry:

They do however as I pointed out have to comply with the other provisions.

They do have to do what (c) requires, which is when Reynolds moved from Missouri to Pennsylvania, he had to tell somebody.

That is what (c) requires; it’s what he was required to do even before SORNA was enacted; and what Congress did with respect to the subset of sex offenders that haven’t already registered before SORNA but that need to get on the registry — afterwards, because, for example, their sex offense wasn’t covered before SORNA.

John G. Roberts, Jr.:

So your — your argument is that requirements in the heading for 42 U.S.C. 16913, Registration Requirements For Sex Offenders, means something different than requirements in subsection (d), which the Attorney General can issue rules about, because you are saying although there is the requirement that they register and comply with (c) and all those other things, when it says that the Attorney General can issue regulations specifying the applicability of the requirements of this subchapter, that only meant the administration — you know, provisions, not the general requirement that you register and keep current and all that?

Melissa Arbus Sherry:

No, I don’t think that that is what we are saying.

What we view (d) is, essentially, is a safety valve.

It does give the Attorney General that authority with respect to requirements, going but going forward Congress has set the baseline; Congress has set the default–

John G. Roberts, Jr.:

It’s a safety valve to release what?

Melissa Arbus Sherry:

–To release sex offenders if needed to — to perhaps suspend certain registration requirements.

And let me give a couple of examples.

John G. Roberts, Jr.:

You are talking about sort of in the weeds, the little details, not the underlying requirement of registration, right?

Melissa Arbus Sherry:

No, I think it — I think arguably it could be both.

Again I don’t think this is something that Congress thought the Attorney General was necessarily going to have to exercise, and in fact the Attorney General has not done so.

Elena Kagan:

But does that mean, Ms. Sherry, that — that the Attorney General could if he wanted to, for whatever reason, could exempt all pre-enactment offenders from SORNA?

Melissa Arbus Sherry:

I think as a theoretical matter, on its face, the delegation of authority in (d) is — is quite broad and plenary.

But I–

Elena Kagan:

It would allow that.

So when you say it gave the Attorney General the ability to confirm or modify the requirement in section (a), you mean he could if he wanted to exempt all pre-enactment offenders?

Melissa Arbus Sherry:

–Again, I say in theory because I think like all delegations of authority, the Attorney General is certainly limited to acting in furtherance of the purpose of Congress, and here we know the–

Antonin Scalia:

We had a case involving the meaning of modify, and it doesn’t — doesn’t mean repeal.

So he presumably couldn’t suspend the whole thing.

Melissa Arbus Sherry:

–I — I — I do know what case you are talking about and I have read it, and that’s certainly true.

Elena Kagan:

To confirm–

John G. Roberts, Jr.:

You want to share it with the rest of us?

Melissa Arbus Sherry:

I’m not saying I definitely remember the name.

I think it was MCI, but I — I do know the case you are talking about.

I mean here the word is specify as opposed to modify, and I guess there could be an argument–

Antonin Scalia:

It authorized the FCC to modify the requirement to post rates, and the FCC simply eliminated the requirement to post rates, and we said that that was no good.

Melissa Arbus Sherry:

–And — and I — I suppose a similar argument could be made with respect to specify.

I don’t think it necessarily has to be–

Stephen G. Breyer:

–Leaving the language aside, I would like to go back to what Justice Sotomayor was asking.

We are talking, it seems to me, about section 2250 — He was a convicted of violating criminally that section — So I have no problem about the statute section.

applying to all these people; it’s a question of how it applies.

magine with me that we have an individual who was convicted a year ago, and sentenced to a 5-year term.

Does the statute apply to him?

Melissa Arbus Sherry:

–He was convicted a year ago.

Stephen G. Breyer:

Yes, correct.

Melissa Arbus Sherry:

–of a sex offense?

Stephen G. Breyer:

Yes, correct.

Melissa Arbus Sherry:

In our view the statute does apply.

Stephen G. Breyer:

Of course it does.

Now he hasn’t registered yet.

He is in jail for 4 more years.

So has he violated 2250 so far?

Melissa Arbus Sherry:

He has not.

Stephen G. Breyer:

No?

Thank you.

So a person who has recently — recently committed the crime, is in prison, is under an obligation to register, is yet not in violation because of the time for initially registration — registering — has not yet expired.

Now let’s go back to a person who is far less certain how it applies.

He committed the crime 10 or 15 years ago.

He has long since been released from prison.

There are, as you point out, several categories.

One is a person who has to — who should under Michigan State law register, but he didn’t.

Another is a person who did, and moved.

You know, there are several categories.

Now, is he in violation of 2250?

Your point is he is immediately, even though it was much less clear that it applied to him, much less clear.

And much less clear — in fact, it doesn’t say when he is supposed to register, but still, 2250 applies to him.

I just wonder how that could be, particularly when we have three sentences, indeed, which seem to me to tell the Attorney General, certainly, please deal with that kind of a case.

Melissa Arbus Sherry:

If I could start with 2250 and then go back to subsection (d), that is not our position.

Melissa Arbus Sherry:

2250 is the criminal provision.

What we were actually looking at here are the registered–

Stephen G. Breyer:

I thought he was convicted of a crime.

I thought he was convicted of a crime under 2250.

That’s why I asked the question.

And his lawyer said in response to my question that one of the things she wants to argue is that he cannot be convicted under 2250 until he is under a legal obligation to register, and that initial registration is not a legal obligation until the Attorney General makes his rules.

I thought that was the argument.

Melissa Arbus Sherry:

–Let me make an important distinction.

We’re actually talking about Reynolds here.

You are right, but Reynolds was not convicted and was not prosecuted for failing to comply with the initial registration requirements in subsection (b); he was convicted and prosecuted for failing to comply with the timing requirements in subsection (c), which are point clear as applied to offenders like Reynolds, who have already registered or already in the system.

What he did was he traveled–

Stephen G. Breyer:

That says — subsection (c) says he has to — not later than 90 days–

Antonin Scalia:

Where is this?

Do you want to tell us where it is?

Melissa Arbus Sherry:

–I’m sorry.

This is on 12(a) of the summary–

Antonin Scalia:

It’s very helpful to know what you’re talking about.

Melissa Arbus Sherry:

–Absolutely.

Elena Kagan:

–But you’re suggesting, Ms. Sherry, that (b) and (c) have nothing to do with each other, and in fact, one can read (a), (b), and (c) as all integrally linked and referring only to postenactment offenders, so (a) is the umbrella provision; it says

“a sex offender shall register and keep the registration current. “

(B) says how you shall register initially, and (c) says how you shall keep that registration current.

So all three of these refer only to postenactment offenders.

And then (d) comes along and says, by the way, the Attorney General can apply all of this to pre-enactment offenders as well, and can specify how to do that.

Melissa Arbus Sherry:

Again, I don’t think that’s right.

And if it helps, I’d like to walk through the different provisions.

The one thing I would say on the outset, however, is when you say that, when you read those sections, you can read them as applying to only postenactment offenders, I don’t think that’s right, especially because of subsection (b), because on the day that SORNA was enacted, every single person in prison at that time was be definition a pre-enactment offender, and so on its face when you read subsection (b), it quite easily applies to quite a number of pre-enactment offenders.

And the other point I would make along those lines is that fact subsection (b) just doesn’t talk about pre-enactment, it talks about pre-implementation offenders.

So offenders that were convicted after SORNA’s enactment but before SORNA was implemented, again quite easily fit not only within subsection (b) but within all the other subsections as well.

And with respect to the interrelationship between them, I think subsection (a) really identifies the jurisdiction in which a defendant needs to register.

So the first instance the jurisdictions in which an offender both needs to register and to keep the information current.

Melissa Arbus Sherry:

Subsection (b) really serves a limited purpose.

It’s an intake process.

It’s getting an offender into the system.

For offenders like Reynolds who are already in the very same system, there is nothing to be done.

(B) simply doesn’t apply to them — (B) is applied to people who are not already in that system, and for those that can comply with the timing, it gets them in before their release to the community.

But the inability to comply with subsection (b) for the small set of offenders that cannot comply were with the timing requirements, it doesn’t immunize them from complying with all the other registries–

Stephen G. Breyer:

–In other words, you were reading (c) as saying, to go back to my example, the person who was convicted last year and has four more years to do his initial registration — nonetheless, if he changes his name, if he stops being a student while in prison, he has to register tomorrow or the day after.

I would say if that’s your reading of those two sections, it’s going to confuse everybody who is in prison, as it did confuse me.

Melissa Arbus Sherry:

–That is not my reading of the–

Stephen G. Breyer:

Alright, then.

Then I take it your reading is he does not have to fulfill (c) until after he has to initially register, and so we’re back to the question of why you treat somebody who committed the crime long ago with less clarity — with less time to initially register, with more confusion from one jurisdiction to another than you would treat a person who was convicted last year, is still in jail, and has four more years to register.

That’s why I read (d) as trying to sort that kind of thing out.

Melissa Arbus Sherry:

–Two points on that.

Number one, for offenders like Reynolds that are already registered, there’s nothing more to be done as far as registration goes.

All that he needs to do is to keep the information current and to keep it updated.

The other point I would make, since we’re talking about 2250, Congress provided other protections for offenders that were unable to comply with the timing requirements, number one — it provided impossibility affirmative defense in 2250(b), and the other thing that Congress did is it required that any failure to register in order to be subject to prevailing sanctions, that it be a knowing failure to register.

In other words, that the offender know he has a registration requirement and know that he is not complying with that requirement.

So the idea that there are some hypothetical or maybe even not so hypothetical sex offenders out there who can’t comply with the precise timing in (b) and will — have no idea what they are required to do, they are not going to be criminally liable under 2250 because there is an impossibility defense.

And to the extent they don’t know that they have a registrational requirement, they’re also not going to be criminally liable under 2250.

And so–

John G. Roberts, Jr.:

Why isn’t part of your answer to Justice Breyer’s question that the one person who doesn’t have to register for four years is in prison already, so presumably, he doesn’t present the same type of threat that led to the enactment of these registration laws in the first place.

Melissa Arbus Sherry:

–That’s absolutely right.

The reason — the release from prison is the trigger and the concern and the reason we have registration is for periods of time where these offenders are released into the community.

And that’s why the timing requirement in (b) is there.

The notion is that before offenders are released into the community, we want to get them on the registry rolls, we want to be able to track them from the day that they’re released.

Stephen G. Breyer:

Your view is that they have to register initially when?

Melissa Arbus Sherry:

If they have not?

Stephen G. Breyer:

No, no, I’m saying — take my example.

The person is in Michigan.

Michigan does have a sex registration thing, but he never actually did, so now the Federal act comes in now when is he supposed to register.

Melissa Arbus Sherry:

He is to register within a reasonable time.

Stephen G. Breyer:

Oh, reasonable time and what is a reasonable time.

Melissa Arbus Sherry:

Given the rest of the requirements something probably along the lines of give or take three business days.

Stephen G. Breyer:

Three business days he’s supposed to go out and do that and if he doesn’t do that he has committed a federal crime which makes no mention of it, no mention at all, and he’s just supposed to guess that that’s three business days because he’s a lawyer, is that why?

Melissa Arbus Sherry:

No, actually it’s not unique with respect to the statute, it’s quite common for status offenses, and let me try to give one example.

One of the statutes that the Court looked at fairly recently 922 g 9 makes it unlawful to possess a fire arm after having a conviction for a misdemeanor crime of domestic violence.

That statute applied in 1996 and applies to everybody convicted of a domestic violence offense.

So if an individual had domestic violence conviction in 1990 and had a fire arm in his possession forever the last 20 years when the statute passed in 1996 he was in violation of the statute.

Of course he couldn’t be prosecuted unless he was given some reasonable time to get rid of the fire arm.

But there is nothing years ago with respect to that.

And again, the criminal provision here 2250 provides additional protections it has an affirmative defers for impossibility and it requires that there be knowledge.

So for an offender that knows he is required to register he is given a reasonable amount of time to come into compliance with that registration requirement.

Reynolds in particular is an example of what Congress was trying to get at.

Reynolds knew he was required to tell somebody when he moved from Missouri to Pennsylvania.

He knew that because he signed registration forms in Missouri telling him as much.

And those are in the joint appendix after pages 16.

Ruth Bader Ginsburg:

Those were under Missouri law not under federal statute.

Melissa Arbus Sherry:

They were — they were under Missouri law, but the important point for SORNA purposes is that he knew he had a registration requirement.

He doesn’t have to know what law it arises under.

And again, the sex offender registries that pre-existed SORNA are the exact same sex offender registries that SORNA is using.

SORNA was enacted in 2006; it wasn’t starting over; it wasn’t starting from scratch.

wanted to build on the previous regime.

It It wanted to fix it and make it better and fill in gaps and fill in loopholes and stitch all of the–

John G. Roberts, Jr.:

And providing criminal penalties that weren’t always there.

Melissa Arbus Sherry:

–Well, the criminal penalties–

John G. Roberts, Jr.:

That’s a big change.

Melissa Arbus Sherry:

–The criminal penalties — the Federal felony criminal penalties were not there before.

Wetterling did have a misdemeanor penalty, and a number of States did have penalties, but again the criminal penalty is distinct from the registration requirement, which is what we are actually looking at and what we’re interpreting.

The registration requirement, violation of which can result in criminal penalties in certain circumstances; but again, Congress provided additional protections for those circumstances.

The registration requirements themselves not only apply to sex offenders and tell sex offenders what they are required to do, it also tells States and other jurisdictions what they are required to do if they want to — implement.

John G. Roberts, Jr.:

Your theory — your theory of what the Attorney General did here, as you put in your — I forget what, the regulations, or the — was confirm the applicability of SORNA, right?

Melissa Arbus Sherry:

Our–

John G. Roberts, Jr.:

That’s the word you used, I think, on page 12 of your brief.

Melissa Arbus Sherry:

–We did.

One of the things he did was confirm.

In the interim rule the Attorney General in the preamble section read the statute exactly as we read the statute.

John G. Roberts, Jr.:

Right.

What is the other example — did you have any other example where an Attorney General confirms the applicability of a criminal law?

Melissa Arbus Sherry:

I don’t know if I would say confirm.

There are certainly are other examples where the Attorney General has had authority and exercised authority to define certain aspects of criminal law, Touby is one example of such a case.

John G. Roberts, Jr.:

No, that’s different.

I mean if you are talking about defining which drugs are qualified, you know, under provisions that criminalize possession, things like that.

That’s is clarification going forward.

I am talking about straightforward confirming, is what you say happened here.

Melissa Arbus Sherry:

Oh, well–

John G. Roberts, Jr.:

The law says this and I — I think it means — I think it means what you say it means.

Melissa Arbus Sherry:

–I think there are a number of examples where for example, agencies do little more than restate what the statute says.

I think the Court doesn’t give deference in those circumstances, but it certainly is within the scope of the general authority of an agency or the Attorney General in this case to reiterate the statute’s requirement.

The Attorney General went — went a step further in the interim rule in that what the Attorney General said in the preamble is I read the statute as written; I think it applies facially to all sex offenders regardless of the date of conviction but I understand the defendants are making an argument to the contrary, and in an abundance of caution to foreclose that argument to the extent I need to do something under subsection (d) I am doing it now; and I’m saying that yes, it applies to all pre-enactment and pre-implementation offenders.

John G. Roberts, Jr.:

So I get back to my question, which — what’s your best example of an Attorney General doing something like that?

Melissa Arbus Sherry:

Confirming?

I don’t know if I have one in a criminal context exactly, but I think the point maybe that Your Honor’s getting at; and you can certainly correct me if I’m wrong; might be a point that you made earlier.

It certainly is somewhat unusual delegation of authority to the Attorney General.

If Congress had wanted the Attorney General to decide whether or not the registration requirements at the very core of this statute had any operative effect going forward, presumably it would have told the Attorney General that he needed to do something.

That’s something that Congress did in many other provisions of SORNA where Congress said the Attorney General shall do something.

In fact, more than a dozen provisions Congress used that language to direct the Attorney General to take a certain action.

John G. Roberts, Jr.:

Well, here it says shall.

It says the Attorney General shall have the authority to specify the applicability of the requirements of this subsection.

Melissa Arbus Sherry:

But it says shall have the authority.

And I think there is a significant difference between shall specify and shall have the authority to specify.

Melissa Arbus Sherry:

The latter is a passive delegation of authority; it’s a permissive delegation.

It suggests that the Congress did not think that the Attorney General had to do something for the statute to apply as written.

It suggests that the statute applied on day 1 to all pre-enactment and pre-implementation offenders as all the other subsections that set forth the registration requirements suggest, but if the Attorney General in the future sees a need to specify the applicability going forward, then he has the authority to do that.

Not that he–

Sonia Sotomayor:

–But the question — you are starting from a proposition, counsel, it seems to me, that Congress necessarily and under all circumstances thought that it had to include pre-SORNA convictions.

But I don’t know — yes, it wanted a uniform system, but it had State systems in place, it had an imperfect Wetterling Act in place.

It had lots of other mechanisms in place to punish non-registrants.

So you are starting from the proposition that by necessity they wanted to include preconviction felonies.

But I guess for those of us who believe in legislative history, and I know many of my colleagues don’t believe in it or pay attention to it, there were two bills passed on SORNA, one a House bill that made it very clear, explicitly clear that it applied to pre-SORNA conviction felons; and the Senate bill which under the label Retroactivity had the terms that (d) now has.

Doesn’t that suggest to us that Congress itself was unsure of whether it wanted to include the pre-SORNA convictions or not?

Melissa Arbus Sherry:

–I don’t think so, and for two reasons.

First, to address the bills themselves, I don’t think the Senate bill, just like I don’t think subsection (b) means that Congress meant to apply the registration requirements to all pre-enactment offenders in the registration provisions and then take away that provision in the specify the applicability provision.

In the Senate bill that you are talking about it defined a sex offender as anybody who has been convicted of a sex offense and as this Court said in Carr, that is the language that Congress quite often uses when it intends to include pre-enactment conduct.

So I think the verb choice, both in the Senate bill, in the House bill, and in the bill that was actually enacted, indicates that it did intend to include pre-enactment offenders.

The other point I would want to make is again, another point that was made in Carr, which is that the registration requirements stand at the very center of Congress’s efforts to find and to register the 100,000 missing sex offenders that have fallen off the registry rolls under the previous regime.

So I think it is quite clear with respect to SORNA that Congress did want to include pre-enactment offenders; it wanted to not only find those missing sex offenders; it wanted to make sure that they got back on the registry rolls.

And as far as of the hundreds of thousands of offenders that were already on the registry rolls when SORNA was enacted, they wanted to make sure that they stayed on the registry rolls, that they kept the information current; they continued to update their information going forward.

And again, with respect to pre-enactment offenders that were in prison at the time that SORNA was enacted, it wanted to make sure to get them on the registry rolls before they left prison, before they–

Sonia Sotomayor:

I guess my problem is that you make an assumption, you continue to make an assumption that if the Attorney General hadn’t acted — that the Attorney General was incapable of acting quickly.

I mean, if the Attorney General had within a few months done what he ultimately did a year later or whatever time period after, had come out and said, it applies; this is what you do; briefly, you register wherever you were convicted or — et cetera, if you move or change your name, then Congress would have accomplished the goal it wanted.

Melissa Arbus Sherry:

–If — if the — if Congress had wanted the Attorney General to act and to act quickly, presumably Congress would have told the Attorney General that he had to do something.

Again, that’s something Congress did in many other provisions of SORNA.

Ruth Bader Ginsburg:

And why did — the Attorney General didn’t try to act very quickly, and if the Attorney General thought that SORNA applied from day 1, why is the Attorney General trying to go through regulation that said nothing more than SORNA applies?

Melissa Arbus Sherry:

Because when the Attorney General issued the interim rule, what he said was that reading it on the face, I do think it applies to everybody, but I recognize the defendants are making an alternative argument and I think it’s incredibly important that it apply to everybody, and that it apply to everyone quickly, because we are talking about protecting our communities; we’re talking about protecting the public and protecting our children from sex offenders, and having this uncertainty out there is — is not only not good for protecting the public, but it’s not good for sex offenders; it’s not good for jurisdictions that are trying to work towards substantial implementation of SORNA.

And so I think you could look at it one of two ways.

If the idea is, well, Congress left it to the Attorney General, but the Attorney General sort of acted very quickly, I think that suggests that there probably wasn’t that much for the Attorney General to do in the first place, and there is little reason that Congress would not have made that decision on its own.

To the extent you think there was a whole bunch of things for the Attorney General to do, which again we disagree with, presumably that is something that would take some time.

During the interim period those 100,000 sex offenders would remain missing; additional sex offenders would be added to that number and the community and public would continue to be at risk going forward.

If there–

John G. Roberts, Jr.:

What if — what if we think Congress left it to the Attorney General is because they just didn’t want to decide?

John G. Roberts, Jr.:

Or some people were saying, this is fine but not retroactive and others were saying it should be retroactive.

Do you see any constitutional issues with Congress delegating that authority to the Attorney General, the authority to make the criminal statute applicable on a retroactive basis?

Melissa Arbus Sherry:

–that’s what Congress did.

Of course, we don’t think So we — we do think that the notion that Congress would delegate such a fundamental issue to the Attorney General in such subtle and opaque terms that the Attorney General didn’t think he needed to do anything is quite significant when you look to see what — what Congress was intending.

Antonin Scalia:

It would strengthen your case if you at least acknowledged that it would be constitutionally doubtful.

You wouldn’t have to say it’s bad, but if you said it’s doubtful, it might strengthen your case, wouldn’t it?

Melissa Arbus Sherry:

strengthen our case here–

Elena Kagan:

But it would also work That is — that might against your own interpretation, because your own interpretation allows you to exempt anybody you want from the statute; isn’t that right?

Melissa Arbus Sherry:

–It does, but we do think there’s a different starting point.

And the different starting point is a fundamental difference, as Your Honor noted.

Our argument looks like a lot like prosecutorial discretion, whereas the other starting point is that Congress decided something and left it all to the Attorney General.

John G. Roberts, Jr.:

Thank you, Counsel.

Ms. Cain, you have three minutes remaining.

Candace Cain:

I would like to address one point the Government made, that there’s no need to reregister — someone in Mr. Reynolds’ position — once they have been registered under State law.

They acknowledge the opposite themselves in footnote 12, where they say that —

“that a Government or a State will have been deemed to substantially implement SORNA if it registers pre-enactment and pre-implementation sex offenders who remain in the system as registrants, as well as other people. “

So it’s clear that the Government believes that — acknowledges that people who are already registered must reregister under SORNA.

The most important thing is that this — the SORNA statute — the obligation under SORNA begins with initial registration, and does not begin with a State registration.

And enactment, Congress knew that certain people would be unable to register under subsection (b), and that is why they enacted subsection (d).

We ask the Court to remand to the district court, and to allow Mr. Reynolds to pursue his claim.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10: 00.