October 2 Arguments: Delegation and Dementia

Arguments Oct_02_2018

           The Court heard arguments in two cases on Tuesday: Gundy v. United States and Madison v. Alabama. In Gundy, the Court was asked to consider whether the non-delegation doctrine (which says that Congress cannot hand its legislative powers to agencies) is violated by the federal Sex Offender Notification and Registration Act’s (SORNA) delegation of authority to the Attorney General to issue regulations under 42 U.S.C. § 16913(d).This statute gives the Attorney General the authority to specify the initial registration requirements for certain sex offenders. Failure to register can lead to criminal penalties. The following exchange, which resulted in laughter from the bench, gives a good summary of the Petitioner Herman Gundy’s argument:

Justice Gorsuch:How do people even know who is going to be included in this class until they hear from the Attorney General? […] We say that vague criminal laws must be stricken. We’ve just repeated that last term. What’s vaguer than a blank check to the Attorney General of the United States to determine who to prosecute?


Justice Ginsburg:That’s your argument stated very concisely.

Petitioner:I’ll cede my time.

This brief exchange from the Respondent’s argument gives a quick look at the United States’ position in this case. Click here to read a transcript of the arguments made on both sides.

Justice Kagan: And when you say the Attorney General could – tell me what you think the Attorney general cannot do, given the language of this statute […]”

Respondent: So I don’t think the Attorney General could say: Look, I know Congress set up three tiers with registration links of 15, 25 years, and life, but I’m going to require you to register, but only for a few years.

Check out Law360 for more information on the arguments in Gundy.

           In Madison, the Court heard arguments about whether being unable to remember committing the crime that a defendant gets the death penalty for makes him incompetent to be executed. Vernon Madison has suffered from several strokes, has vascular dementia, diminished cognitive abilities, and has no memory of committing the murder that he is to be executed for. Madison’s attorney Bryan Stevenson explains the Petitioner’s position: “What we argued is that his dementia renders him incompetent in a way that does not permit the state, consistent with the Eighth Amendment, to carry out his execution.” On the other hand, the attorney representing the State of Alabama had this to say: “[T]he state would still have strong interest in seeking retribution for a horrible crime. If someone – even if they can’t remember the crime, that doesn’t somehow lessen their ability to understand.” Click here for the full transcript of today’s arguments in Madison. The Montgomery Advisor covers the background of the case in more detail, and ISCOTUSnow expects to have more detailed coverage of this case coming up (similar to this in-depth post about a previous death penalty case, McCoy v. Louisiana). CNBC, The New York Times have more information on this case and today’s arguments.  

Written by Zoe Arthurson-McColl, edited by Matthew Webber, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


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