Reynolds v. United States

The original Reynolds v. United States (1879) was a classic Supreme Court struggle - polygamists marching into Court to claim, albeit unsuccessfully, their First Amendment right to practice their religion.

The modern version of Reynolds is a different, far more subdued, animal. In 2001, in Dunklin County, Missouri, Billy Joe Reynolds was convicted of statutory sodomy in the second degree. When he was released on parole in 2005, he promptly registered as a sex offender under Missouri law (he also took up talking to a young woman in Philadelphia through a telephone program called C-Lounge - I would link to it, but I really don't want to).

His parole expired in July of 2008, but after two and a half years of speaking with this young woman, he decided to violate his parole in September, 2007 and move in with her and her mother in Pennsylvania, where he quickly got a job deep-frying at a local restaurant. Twenty-nine days later, he was brought in and charged with failing to register as a sex offender in Pennsylvania, a felony that could give him up to 10 years in prison under the "Sex Offender Registration and Notification Act" or "SORNA."

The first problem with this scenario is that SORNA wasn't enacted by Congress until July 27, 2006, five years after Reynolds' conviction and a year after he was released on parole. To deal with these kinds of offenders (those who were convicted before SORNA), Congress gave the Attorney General certain powers to apply SORNA retroactively. The Attorney General used these powers to issue the "Interim rule" that applied SORNA to pre-enactment offenders. To bypass the usual 30-day notice and comment period, the Attorney General invoked the "good cause" provision, that in it's most basic form says the Attorney General can bypass the usual standards if he has a really good reason (in this case, to protect communities and track sex offenders).

Reynolds brought up a slew of questions in the 3rd Circuit Court including, among others:

• Did the Attorney General's application of SORNA to pre-enactment offenders violate the Ex Post Facto Clause (that you can't charge someone with a crime if it wasn't a crime when they committed it)?
• Does the Attorney General's idea of a 'really good reason' really justify putting someone in jail, for possibly up to 10 years, before the rule goes through the proper procedures?
• Did the federal statute, by superseding all state statues regulating sex offenders, violate the 10th amendment of the Constitution?

These are all big, fascinating questions and each one would deserve it's own Supreme Court case. So what did the Supreme Court decide to do? Not take a single one of them. No, we're only talking about whether or not Reynolds has standing to even challenge just the Attorney General's Interim Rule. Granted, everyone in the lower circuits is confused about this issue, which is probably why the Supreme Court took the case at all. The real reason this case is important comes five or ten years down the road - if Reynolds gets standing and if he's able to make a good case in the lower courts that SORNA is unconstitutional.

I leave you with a funny moment from oral argument. It doesn't have a whole lot to do with the case because I don't think the Court is going to touch on whether or not Congress has the right to give the Attorney General the authority to apply laws and make certain actions criminal. But here is Justice Scalia wondering about it regardless:

 

"I find it very strange 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."