Background & Facts
Herman Gundy challenged a provision of the Sex Offender Registration and Notification Act (SORNA) that delegated to the Attorney General authority to determine SORNA's applicability to pre-Act offenders. He argued the delegation was unconstitutional under the nondelegation doctrine.
A four-Justice plurality (Kagan, Ginsburg, Breyer, Sotomayor) upheld the delegation under the lenient "intelligible principle" standard. Justice Alito concurred only in the judgment, signaling openness to revisiting nondelegation in a future case. Justice Gorsuch, joined by Roberts and Thomas, dissented, calling for a far stricter nondelegation rule.
The Court's Holding & What Comes Next
Although Gundy upheld the delegation, the splintered vote signaled that five Justices are now potentially open to reviving the nondelegation doctrine — a doctrine that has lain dormant since 1935.
Key Significance for Indian Law:
P.L. 280 was a sweeping congressional transfer of federal jurisdiction to states without standards, oversight, or tribal consent. A revived nondelegation doctrine could be a vehicle for challenging not just P.L. 280 but the broader pattern of Congress unloading its trust responsibilities onto state actors.
How This Supports ATN's PL280 Arguments
Gundy is the constitutional litigation roadmap for any future challenge to P.L. 280's delegation of federal Indian-affairs authority. The Gorsuch dissent in particular — and Gorsuch's broader Indian-law jurisprudence — provides the doctrinal vocabulary for arguing that Congress's plenary power over Indian affairs cannot be wholesale handed off to states without meaningful standards or tribal consent.
- 1. Pending doctrinal revival: Five Justices may now scrutinize sweeping congressional delegations.
- 2. Trust-responsibility argument: Congress cannot delegate away trust duties without standards.
- 3. Gorsuch is an ally: His McGirt opinion shows how an originalist-textualist court can rule for tribal sovereignty.
- 4. Litigation timing: ATN should monitor pending nondelegation cases for cert vehicles.
Related Authorities
- McGirt v. Oklahoma (2020) — Gorsuch's textualist reservation-status decision
- Haaland v. Brackeen (2023) — Plenary power affirmed, nondelegation challenge rejected (this round)
- Argument III: Consent