by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The U.S. Supreme Court made it much easier for federal agencies to create new crimes and prosecute them, rejecting a constitutional challenge based on the separation of powers. In an unusual split that saw Justice Samuel Alito join the Supreme Court’s liberal wing, Gundy v. United States upheld the Sex Offender Registration and Notification Act (SORNA), a “comprehensive national system” Congress established in 2006 to register sex offenders, which gave the Attorney General vast powers of rulemaking and enforcement.
By upholding SORNA’s broad delegation of power, the Supreme Court has set a precedent for even greater federal criminalization, which is already—quite literally—incalculable. When the Justice Department tried to count the total number of federal criminal laws in 1982, the attorney tasked with that job ultimately gave up after two years. In the early 1990s, one study made an educated guess that there were over 300,000 federal regulatory crimes, a number that has surely grown in the decades since. By comparison, that’s “67 times as many crimes as the about 4,500 federal statutory crimes,” the Institute for Justice reported, while the Code of Federal Regulations includes “one million regulatory mandates or prohibitions and imposes over one trillion dollars in costs.”
In a fierce dissent, Justice Neil Gorsuch slammed the Supreme Court for letting Congress “endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.” Enforcing the separation of powers, he wrote, is “about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law.”