In Gundy v. United States, decided in June 2019, the Supreme Court upheld a federal sex offender registration law that gave the Attorney General sweeping authority to decide how the law applied to people convicted before it existed. The vote was 5–3, but the fractured opinions revealed something more important than the outcome: a majority of sitting justices signaled they were ready to tighten the constitutional limits on Congress’s power to hand policymaking authority to executive agencies. That gap between what the Court did and what it hinted it might do next is why the case still matters.
What the Case Was About
Herman Gundy was convicted of a sexual offense in Maryland in October 2005. While serving a later federal sentence, he traveled from a federal prison in Pennsylvania to a halfway house in the Bronx in July 2012. After his release, he was arrested for failing to register as a sex offender under the Sex Offender Registration and Notification Act, known as SORNA. The charge came under 18 U.S.C. § 2250, which makes it a federal crime to knowingly fail to register after traveling in interstate commerce.1Office of the Law Revision Counsel. 18 USC 2250 – Failure to Register
The problem was timing. Gundy’s conviction predated SORNA, which Congress enacted on July 27, 2006, as part of the Adam Walsh Child Protection and Safety Act. SORNA built a national tracking system for sex offenders, but it left a gap: the statute never spelled out how the registration requirements applied to the hundreds of thousands of people convicted before the law took effect. Instead, a single provision — 34 U.S.C. § 20913(d) — told the Attorney General to “specify the applicability” of the requirements to those pre-Act offenders and to write rules for their registration.2Office of the Law Revision Counsel. 34 US Code 20913 – Registry Requirements for Sex Offenders
The Attorney General used that authority to issue regulations requiring pre-Act offenders to register. Gundy challenged his indictment on the ground that Congress had handed the executive branch a power the Constitution reserves for the legislature: the power to decide who could be criminally prosecuted.
The Constitutional Question
Gundy’s argument rested on the nondelegation doctrine. Article I, Section 1 of the Constitution vests “all legislative Powers herein granted” in Congress.3Congress.gov. ArtI.S1.5.1 Overview of Nondelegation Doctrine The principle that follows is simple: because the people gave lawmaking power to Congress, Congress cannot pass it along to someone else. Elected legislators are supposed to make the hard policy calls because voters can remove them; unelected agency officials sit outside that accountability.
In practice, the doctrine has had little force. The Supreme Court last struck down a federal statute on nondelegation grounds in 1935, in Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States.4Legal Information Institute. The History of the Doctrine of Nondelegability Since then, the Court has evaluated delegations using the “intelligible principle” test from J.W. Hampton, Jr. & Co. v. United States (1928), which allows Congress to delegate authority so long as the statute lays down enough of a policy framework to guide the official carrying it out.5Justia. JW Hampton Jr and Co v United States, 276 US 394 (1928) Every nondelegation challenge for the last nine decades has failed under that standard.
Gundy’s lawyers argued that § 20913(d) was different. It didn’t ask the Attorney General to fill in technical details. It let him decide whether, when, and how a federal criminal law applied to half a million people. That, they said, was legislation, not administration.
How the Court Ruled
Justice Kagan wrote the plurality opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Alito concurred in the judgment, providing the fifth vote. Justice Kavanaugh took no part in the case because he had not yet been confirmed when it was argued.6Supreme Court of the United States. Gundy v United States
The plurality upheld the statute by reading it narrowly. Kagan relied on Reynolds v. United States (2012), which had already interpreted § 20913(d) to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible.7Justia. Reynolds v United States, 565 US 432 (2012) Under that reading, the Attorney General wasn’t choosing whether to cover pre-Act offenders; the statute required it. His only discretion was over the logistics of bringing hundreds of thousands of people into the system.
Because SORNA’s overarching purpose was a comprehensive registry covering all offenders regardless of conviction date, the plurality found an intelligible principle built into the statute. The Attorney General was carrying out Congress’s policy, not writing his own, and the delegation passed the traditional test.6Supreme Court of the United States. Gundy v United States
Alito’s Concurrence and Gorsuch’s Dissent
Alito’s vote saved the statute, but his short concurrence sent a very different message. He wrote that he joined the judgment only because existing precedent required it, and he added that if a majority of the Court were prepared to reconsider the Court’s approach to nondelegation, he would be willing to join that effort. Combined with the three dissenters, that put four sitting justices on record as open to rethinking the doctrine.6Supreme Court of the United States. Gundy v United States
Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, wrote the dissent. He argued that the intelligible-principle standard had drifted so far from the Constitution’s original design that it effectively approved any delegation Congress cared to make. His central objection to SORNA was blunt: the statute gave the Attorney General “the power to write his own criminal code governing the lives of a half-million citizens.” Letting an unelected official set the reach of criminal liability, without meaningful statutory limits, was the kind of concentrated power the Framers had tried to prevent.
In place of the intelligible-principle test, Gorsuch proposed a stricter framework. Congress could delegate power in three circumstances:
- Filling in details, where Congress sets the policy and the executive handles specifics of implementation.
- Fact-finding triggers, where Congress defines a rule and the executive determines when factual conditions activate it.
- Nonlegislative tasks that are executive or judicial in nature rather than legislative.
Anything outside those categories, in his view, was an unconstitutional transfer of lawmaking power. The dissent was openly written as groundwork for a future case in which five justices might agree to overhaul the doctrine.
What Gundy Changed
The formal holding preserved the status quo, but the dissent proved more influential than the plurality. Gorsuch’s separation-of-powers arguments resurfaced almost immediately in cases challenging agency authority.
The clearest line runs to West Virginia v. EPA, decided in 2022. There, the Court struck down an EPA rule on climate emissions, not by reviving the nondelegation doctrine outright but by applying the “major questions doctrine,” which requires Congress to speak clearly when authorizing an agency to make decisions of vast economic and political significance. Gorsuch’s concurrence in West Virginia explicitly cited his Gundy dissent and framed the major questions doctrine as a corollary of Article I’s vesting of legislative power in Congress, the same constitutional foundation he had used three years earlier.8Supreme Court of the United States. West Virginia v EPA
The result is that Gundy gave the Court a way to rein in agency power without formally overturning decades of nondelegation precedent. Rather than declaring a statute unconstitutional for lacking an intelligible principle, the Court can demand clear congressional authorization for sweeping regulatory action. It’s a narrower tool, but it achieves much of what Gorsuch called for in Gundy, pushing the big policy calls back to Congress. Whether the Court eventually takes the further step of formally tightening the nondelegation doctrine is still an open question, and Gundy is where that trajectory began.