The Nondelegation Panic – Niskanen Center

The Supreme Court’s recent decisions in Gundy v. United States and Paul v. United States (or, more precisely, Justice Gorsuch’s dissent in Gundy and Justice Kavanaugh’s “statement” in connection with the denial of certiorari in Paul) has triggered a panic among the liberal community that, in the words of one commentator, the Supreme Court is about “to slash agencies’ regulatory power,” “toss out decades of settled law regarding the power of agencies to regulate,” etc. The cause of this panic is that the five conservative justices have all signaled a willingness to reexamine the “nondelegation” doctrine, which is legal-speak for the principle that Congress cannot “delegate” its legislative responsibilities. Since almost all of the modern regulatory state is based on Congress giving agencies the power to regulate, for 85 years the Court has uniformly upheld broad grants of such authority because Congress had provided “an intelligible principle” to guide the agency’s rulemaking, and by which courts can judge whether the agency’s action is within the scope of its authority.

There is no point debating the magnitude of this “threat.” When the Court takes the appropriate case, we will see what these justices have to say. But I think it is important to point out two things: First, while liberals are concerned because Congress frequently delegates in order to give agencies the flexibility to respond to changing circumstances (a good thing), much of the delegation results from Congress’s lack of time and resources to get into the nitty-gritty (a bad thing), from political gridlock (ditto), and from wanting credit for enacting the law (think Clean Air Act)—but passing the buck and avoiding blame for any particular regulation (also a bad thing). Second, when Congress does not have the time or resources to get into the details—or can’t reach agreement on the particulars, or wants someone else to take the heat for the implementing regulations—it throws up its hands about what it wants to achieve and how to achieve it, in effect saying “leave it to the agency and the courts to decide all that.” Any of these bad causes results in situations everyone should be worried about.

Take Gundy, which dealt with the federal sex-offender registry (SORNA). After deciding how to apply it to future offenders, Congress left it to the Attorney General as to how it should apply to previously-convicted offenders. (This is why this was not a “delegate to give flexibility to adapt to changing circumstances” situation, because nothing would be changing about previously-convicted offenders.) As Justice Gorsuch pointed out in his dissent, Congress made it a felony (punishable by up to ten years in prison) for those offenders to fail to register in accordance with the Attorney General’s regulations, and:

[f]or six months after SORNA’s enactment, Attorney General Gonzales left past offenders alone. Then the pendulum swung the other direction when the Department of Justice issued an interim rule requiring pre-Act offenders to follow all the same rules as post-Act offenders. A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders. Three years after that, Attorney General Holder required the States to register only those pre-Act offenders convicted of a new felony after SORNA’s enactment. Various Attorneys General have also taken different positions on whether pre-Act offenders might be entitled to credit for time spent in the community before SORNA was enacted.

In other words, it was quite possible that someone could get 10 years in prison for something that had been legal under a previous Attorney General and was to be legal again under the next one–or legal again under the current one if he were to change his mind the following week. Hands up if you think it is a good idea for Bill Barr’s Justice Department to have the authority to decide what is and is not a felony.

The second thing worth noting is that the nondelegation doctrine is the basis for ongoing litigation against some of the Trump Administration’s worst impulses. For example, in Center for Biological Diversity v. McAleenan, plaintiff environmental organizations sued (unsuccessfully) the Department of Homeland Security after DHS exercised its authority under the Illegal Immigration Reform and Immigrant Responsibility Act and subsequent statutes, which gave DHS the power to waive not only the environmental laws at issue in that case, but all applicable federal laws, whenever DHS deems it necessary to get border walls built. (And, at the same time, Congress limited federal court jurisdiction to review those waivers.)

Apropos of border walls, the nondelegation doctrine is also a central feature in El Paso County v. Trump, where plaintiffs are challenging the President’s hysterical proclamation that there is a National Emergency at the southern border because of drug smuggling and illegal immigrants. (Full disclosure:I am part of the legal team representing El Paso County and the Border Network for Human Rights in that case.) We’re arguing that the National Emergencies Act (NEA) violates the nondelegation doctrine because the “NEA does not define ‘emergency’ or expressly specify any ‘intelligible principle’ to guide the President’s ‘emergency’ determination.” This allows the President to proclaim anything he wants to be an “emergency” and invoke special powers under more than 100 other federal laws, which in this case included pilfering billions of dollars that Congress expressly appropriated for other purposes.*

We should all be concerned about what the Court will do with the nondelegation doctrine. But it is more important to understand that much of the vast regulatory authority that Congress routinely delegates to agencies results from problems with how Congress operates, and that there are instances of delegation that, regardless of political affiliation, we should all be worried about.

*The district court did not rule on this issue, instead holding that the 2019 Consolidated Appropriations Act barred the President from using the pilfered funds, and subsequently enjoining their use for border wall construction.

Source: The Nondelegation Panic – Niskanen Center

Weinstein and His Accusers Reach Tentative $25 Million Deal – The New York Times

The narrow scope of Mr. Weinstein’s upcoming criminal trial only heightens the significance of the civil settlement, likely to be the only legal recourse for many of the women who said he abused them. Because some alleged victims have declined to participate in a criminal trial, or have complained of offenses that are not criminal or fall outside the statute of limitations, the court case in New York centers on just two people.

Source: Weinstein and His Accusers Reach Tentative $25 Million Deal – The New York Times

Lockdowns Plague Wisconsin’s Overcrowded Columbia Correctional Institution – Shepherd Express

On Oct. 22: A sergeant called a black man “boy.” The man responded by attacking the officer, leaving him “severely beaten.” The facility went on lockdown until Oct 25.

On Oct. 29: Four days after coming off lockdown, another guard provoked another black man by calling him the n-word. He was also assaulted, but less severely. The facility went on lockdown again until Nov 5.

On Nov. 8: A guard was stabbed during program services. The facility has been on lockdown, which means that all of the people inside are deprived of their basic rights and fundamentals of human dignity, from Nov. 8 to the date of this writing (Dec. 8). This is obviously a form of “collective punishment.”

On Nov. 19, Makda Fessahaye, the head of the DOC’s Division of Adult Institutions (DAI), spoke on a panel at Marquette University. After the panel, she told me she was investigating these incidents but had been told that all three staff members “were blindsided.”

However, prisoner advocates insist “nobody is just randomly assaulting staff” and argue that, given Wisconsin DOC’s history of taking abusive guards’ words at face value, however unbelievable, they are demanding thorough investigations. Forum For Understanding Prisons (FFUP), an inmate advocacy organization, has also filed open records requests for shift logs and any “inmate complaints” filed over the last month in an effort to contact the people most directly involved.

Source: Lockdowns Plague Wisconsin’s Overcrowded Columbia Correctional Institution – Shepherd Express


This is an exceptional article, with a number of very informative links within it.  I know that it isn’t registry related, but it is a concern for anyone with someone incarcerated in Wisconsin.  This is some serious stuff they describe here and as we all know, if it is happening here and it is happening in our youth facility it is happening in EVERY SINGLE DOC INSTITUTION IN WISCONSIN.

Sex offender registry law in Pa. facing life-or-death test at Supreme Court

At the heart of the majority of cases is the latest iteration of the Sexual Offender Registration and Notification Act, or SORNA, which evolved out of the original Megan’s Law. When SORNA took effect at the end of 2012, it greatly expanded the law, increasing the list of offenses subject to registration and notification — including a handful that are not sexual in nature — and imposing more stringent registration and notification rules.

The state’s Megan’s Law registry more than doubled, growing from about 10,000 people to just over 20,000, according to the Pennsylvania State Police, which oversees the registry.

Marcus said that after “decades of trial, mountains of empirical evidence and close to one million people around the country being denied their rights to liberty and their reputation,” no hard evidence exists that the public is any safer or that assaults have been prevented.

One of the most closely-watched cases before the high court deals with requirements under the current law for people classified as “sexually-violent predators,” those who have committed the most serious offenses and who are considered to have a high likelihood to reoffend. They are subject to lifetime registration, as well as lifetime counseling and community notification.

The case centers on whether those rigorous registration, notification and counseling requirements constitute unlawful punishment.

Brought by a Butler County man who pleaded guilty to statutory sexual assault and corruption of minors, the case targets the state’s little-known process for assessing sexual offenders. A board of psychiatrists, psychologists and criminal justice professionals in Pennsylvania make recommendations to the court about whether someone should be classified as a sexually violent predator.

Since 2000, the board has completed 20,260 assessments, according to state officials. In 6,027 of those cases, it has recommended that the offender be classified as a sexually violent predator, although the courts have not always agreed.

“This is the case that will dictate how we operate going forward,” said Meghan Dade, the board’s executive director. “This is a pivotal moment in Pennsylvania.”

Source: Sex offender registry law in Pa. facing life-or-death test at Supreme Court

Why there is no national domestic assault offender registry – yet | Fox News

The arguments below are the very reasons that the Sex Offender Registry should be rescinded or at the very least made private instead of public.  


“The issue comes up nearly every legislative session. Well-meaning legislators and constituents around the country propose creating a state or national registry that lists domestic violence offenders,” said Corbin Streett, a technology safety specialist with the National Network to End Domestic Violence. “But there are many unintended consequences that would actually end up harming survivors and giving a false sense of security to potential victims who look at the registry, thinking it will help them avoid getting into a relationship with an abuser.”

Streett pointed out that only a small number of domestic violence offenders are ever arrested, and many victims simply don’t call for help because they are scared of retaliation. Even if they do, such a small number is subsequently convicted.

“We are also concerned about the impact a registry will have on victims reporting violence. Victims are already hesitant to report domestic violence, worried about the violent retaliation that will come after. If the abuser knows their name will be posted on a registry, it doesn’t make them less likely to abuse; it makes them more likely to try to scare a victim into not reporting,” she continued. “There are also major privacy implications, including potential discrimination against victims that can occur with a registry. When an abuser’s name ends up on a list, it’s not just the abuser who will be outed, but their victims as well.”

Source: Why there is no national domestic assault offender registry – yet | Fox News

Guest View: Sex offender registries poor safety policy – Opinion – The Register-Guard – Eugene, OR

An excerpt from the beginning of a fantastic article out of Oregon by Kristina Knittel, a graduate of the UO law school, where she studied child advocacy law. Formerly an instructor for child sexual abuse prevention, she serves as a child and family advocate through her professional and volunteer work in the areas of trauma and resilience. She lives in Bend.


As an advocate for survivors of abuse and as someone who has personally been impacted by sexual violence, I care deeply about true accountability for offenders, prevention of new harm and the safety and healing of our communities. Because of those priorities and values, I was alarmed at The Register Guard’s editorial that advocated for a public safety policy that is disconnected from what we know works, does not keep our communities safe and fails to support families’ healing.

The overwhelming consensus from experts across the board is that sex offender registries do not to make communities safer. In one of the largest nationwide studies using the FBI’s Uniform Crime Report data, researchers found that after implementation of sex offender registration and notification laws, 70% of states experienced no change or saw an increase in the incidences of sexual assaults.

It’s simply not a sensible public safety policy. There are a number of reasons why the lists do not work. First, 95% of sex crimes are committed by people who would not be on any sex offender registry, even with full compliance. About 93% of sex crimes against children are committed by people close to that child…………..

Source: Guest View: Sex offender registries poor safety policy – Opinion – The Register-Guard – Eugene, OR

Wisconsin Useful Links

Do you know what is moving its way through our Wisconsin legislature that may or may not end up on the Governor desk? What I have found over the years is that people are unaware of how much our Wisconsin Government puts online as public record. It’s a lot more than most people realize and far less than you think once you start really digging into the information out there. Much of this depends on what you’re looking for and how quickly you would like to receive it. First and formost, we have a robust Open Records law here that compliments the Federal Freedom of Information Act well. – This is famously known as “CCAP” here in Wisconsin. It has been updated and improvements made, it also encompasses from the Circuit Court all the way up to the Supreme Court of Wisconsin. There is also a content search on this site for legal research, although not as intuitive as I would prefer. – This is the MAIN Page to the Wisconsin legislature, both Assembly and Senate. This main landing page is only the surface of what is out there for you to look at. Again not as intuitive as I would prefer.

What I do not appreciate is the fact that the media and reporting agencies give pet names to the legislation that is created, never revealing the Bill number for either the Senate or the Assembly. Many times you have to do a large amount of reading before you can figure out which bill they are referring to. The reason this is so important is because they ‘add-on’ to bills that are for something else that have things that directly affect us, a good example of this was Act 10 that effectively killed collective bargaining by state employees, but there were a lot of other things that got axed by that law that were not advertised and protested like the union busting part of the law. A clear example of the underhanded way our government does business.

Another example of this is “Marcy’s Law” which isn’t named that on the Wisconsin legislature site, yet there will be a line item on our April 2020 ballot for this ‘law’. You’ll hear all kinds of names for bills as they are presented to the public to garner their support, because Bill 123 isn’t nearly as motivating as “Marcy’s Law” which named after a child that it wouldn’t have helped even if it had been in place at the time. – This is the Wisconsin Bluebook, it is also still printed for those that don’t want to look at it online. This is a comprehensive book about how Wisconsin government works, how a bill becomes law and how bills are presented in both the Assembly and the Senate. It is close to how the US government does it but there are some differences. You can request a hard copy of this book from your local assemblyman FOR FREE. If they try to charge you, then they are lying and scamming you. This book is free to all Wisconsin citizens. – Now here is the mother-load. You want to know how and where the money is being spent, this is how you begin to figure it out, then you can start asking for Open Records Requests, once you have the ammunition that you can find here. They are grouped by category and listed under headings on this page.

If you wanted to receive information and updates on bills that are working their way through our Wisconsin Government here is the link to signup for and receive daily emails letting you know what is happening.

I’d put the link to the registry on here, but I do not want to help their cause by providing a click through link to a site and registry that I will not endorse. But that doesn’t mean that you won’t want to get a copy of it from the SORP office here in Wisconsin. I have found that the easiest way to get an excel copy of the registry is by request to this email address:

Those are the basics of navigating the websites of Wisconsin Government, it is far from comprehensive, but it is a broad overview of what Wisconsin is all about.

Happy Holidays! Create a New Tradition!

These coming weeks can be some of the most difficult for many people, many of them are the friends and families of the registered. This time of year brings reminders of good times, but it also dredges up those times of severe hardships and separation for any number of reasons.

Many times registrants aren’t allowed to attend their own children’s holiday pageants and plays or attend religious services. In this country and in this state of Wisconsin any other offender that has paid their debt to society by completing the sentence imposed upon them by a court has the right to reintegrate into society and move forward with their lives with their families. This should be no different for registrants and their families who’s license plates and home addresses are posted publicly, easily accessed by any vigilante. Not exactly full of Christmas cheer, is it.

So we learn to cope, to mitigate and change our family traditions to normalize our holiday season as much as possible for all that come together for the celebrations that happen throughout the season. Below are some tips and tricks I have learned and observed over the years to keep from have a bummer of a holiday season.

  • Get enough sleep, when you are sleep deprived your mood will take a swing downward, especially with the lack of sunlight and the days only getting shorter until December 20th, when they start getting longer again. {YAY!}
  • Decorate, you don’t have to put up the tree at Thanksgiving or even a real tree for that matter, but put out a few festive objects or some lights, twinkly lights always brighten a person’s mood. Sometimes, especially after Halloween, it feels as if you’re just never going to be allowed to have fun on any holiday. This is not true and is the reason why putting up something festive will brighten the mood.
  • Get in touch with the distant family and friends, just cause they can’t visit and you may have trouble visiting them, doesn’t mean that you can’t celebrate over the phone, Skype or Face-time. Those new apps that connect family and friends via video chat help us feel more connected at times like these.
  • Take some time for yourself, the holidays can be overwhelming as it is fun, but the constant commotion can bring on anxiety and cause PTSD to flare. Taking some alone time or even just less busy time can rejuvenate you so that when the deluge of family and friends arrives you’ll not only be ready, you’ll feel ready.
  • Instead of traveling to other locations for dinner, which could cause issues if someone is still on supervision, host one of the big dinners over the holidays. You don’t have to cook the whole meal, but rather spread the love and have everyone bring an assigned dish to pass, so you end up with all the fixings!
  • If there are events you can’t attend due to circumstances of any kind, try to arrange a different get-together on a different day, have someone that is attending the other event take some video and hold and ‘after party’ for some of the attendees that you missed, so all of you can enjoy the video and likely commentary from those that attended. It isn’t being there, but it is better than never knowing or seeing anything at all too. This is especially helpful for holiday productions and plays that may be held in places that a registrant can not go. Just because you are unable to attend one event doesn’t mean you can’t create another.

Above all, attempt to ignore the complete commercialization of this holiday season and concentrate on the quality of time and selection of gifts vs just spending money mindlessly on items because, “that’s what people do this time of year.” You and your loved ones are worth so much more than that, everyone appreciate a thoughtful gift vs a commercialized ‘haul’.

There is a light at the end of the tunnel and people all over that are going through the same struggles that you are. If things get overwhelming, check out exclusively for the families and loved ones of registrants.

Holidays can be Happy! Because happiness grows where you cultivate it.

Court sidesteps issue on juvenile sex offenders – Washington Times

Louisiana’s Supreme Court has sidestepped, for now, the question of whether juveniles convicted of sex crimes can be required to register as sex offenders for the rest of their lives.

Excerpt from the article….

“Advances in law and science recognize that juveniles are developmentally different from adults, with significant psychological difference,” Hughes wrote in a brief dissent, adding: “The law should alleviate unconstitutional results, not avoid them.”

Two other judges agreed with the majority ruling that the man couldn’t appeal – but they said the requirement is unconstitutional and should be changed by lawmakers.

Retired Judge Michael Kirby, appointed to temporarily fill in for Justice Marcus Clark, wrote a separate concurring opinion, agreeing the appeal was barred on procedural grounds.

“Nonetheless, I write separately to express my opinion that the imposition of lifetime sex offender registration on a 14-year old child violates the Eighth Amendment of the United States Constitution and the Louisiana Constitution’s prohibition against excessive sentences,” Kirby wrote. The Eighth Amendment prohibits excessive fines and “cruel and unusual punishment.”

Source: Court sidesteps issue on juvenile sex offenders – Washington Times

Virginia has a new name for convicted felons | Editorials |

“A state-issued ID can be the key to finding opportunity after incarceration, from connecting with social services, to opening a bank account, getting a job, securing stable housing, and pursuing an education,” Northam said in the press release. “We are fully committed to ensuring returning citizens have access to the support they need to successfully reintegrate into society, and having identification that is REAL ID-compliant will be a valuable tool in reducing recidivism and helping them start out on a positive path upon release.”

Source: Virginia has a new name for convicted felons | Editorials |

Paying to Stay in Jail: Hidden Fees Turn Inmates into Debtors | The Crime Report

Such fees have escalated in recent decades. The U.S. Supreme Court recently ruled in a 9-0 decision that financial penalties levied by states may be so high as to violate the federal Eighth Amendment constitutional protection against excessive fines. Noting that excessive fines for “vagrancy” were used after the Civil War to re-enslave freed men, Justice Clarence Thomas wrote in his concurrence:

The right against excessive fines traces its lineage back in English law nearly a millennium, and … has been consistently recognized as a core right worthy of constitutional protection.

In Wisconsin, each county decides whether or not to charge non-working jail inmates a daily room and board fee. Many Wisconsin counties charge inmates with Huber privileges, which allow the inmate to leave jail for work, school or other reasons.

Inmates on work release in Wisconsin state prisons are also charged room and board. The heaviest burden of jail fees is often borne by low-income individuals.

The average income for someone arrested is a little more than $19,000, according to the Prison Policy Initiative, a think tank that works against what it describes as over-criminalization.

Source: Paying to Stay in Jail: Hidden Fees Turn Inmates into Debtors | The Crime Report

Officials push forward juvenile justice plan they admit already falls short | Wisconsin |

In total, the plans would cost the state about $113 million, roughly $33 million short of the state funding already set aside.

“I think it’s been very clear from the beginning of this debate that there was always going to be more dollars required,” Carr said.

Source: Officials push forward juvenile justice plan they admit already falls short | Wisconsin |

Pay-to-stay fees put some Wisconsin inmates in sizable debt ::

“If I could create a perfect system to maintain inequality, create inequality and sustain it over time, this is the system,” University of Washington sociology professor Alexes Harris said. “The process perfectly labels, stigmatizes, financially burdens and imposes further legal consequences to poor people.”

Source: Pay-to-stay fees put some Wisconsin inmates in sizable debt ::

Wisconsin Justice Initiative blog

Then he lied about checking on Marciniak. And lied. And lied. He lied to officers from the Greenfield Police Department, called in to investigate the death, on three separate occasions between Aug. 15 and Aug. 31,   2016, according to a criminal complaint. Smith admitted the truth only after he was confronted with a surveillance video clearly showing that he hadn’t checked on Marciniak at 4:10 a.m.

Smith was fired and was charged with one misdemeanor count of obstructing an officer. It took until March 23,  2017, seven months after the hanging, to issue the complaint, but the case got wrapped up very quickly -– within five days – after that.

Source: Wisconsin Justice Initiative blog

Are Prison Law Libraries Falling Short On Access Goals? – Law360

The U.S. Supreme Court On Prison Law Libraries

“We hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 1977.

“… An inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is sub par in some theoretical sense … The inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey, 1996.

Source: Are Prison Law Libraries Falling Short On Access Goals? – Law360

Incarceration can be rehabilitative | VOX, CEPR Policy Portal

Incarceration rates have tripled in the US and almost doubled in Western Europe over the past 50 years. This column uses data on the criminal behaviour and labour market outcomes of every Norwegian to show that in contrast to the US, where incarceration appears to encourage reoffending and damages labour prospects, the Norwegian prison system is successful in increasing participation in job training programmes, encouraging employment, and discouraging crime. It argues that Norway’s high rehabilitation expenditures are more than offset by the corresponding benefits to society.

Source: Incarceration can be rehabilitative | VOX, CEPR Policy Portal

How Norway turns criminals into good neighbours – BBC News

“Not ‘guards’,” admonishes Hoidal gently, when I use the term. “We are prison ‘officers’ and of course we make sure an inmate serves his sentence but we also help that person become a better person. We are role models, coaches and mentors. And since our big reforms, recidivism in Norway has fallen to only 20% after two years and about 25% after five years. So this works!” In the UK, the recidivism rate is almost 50% after just one year.

Source: How Norway turns criminals into good neighbours – BBC News

Federal lawsuit seeks to halt Wisconsin’s lifetime GPS monitoring | Buting, Williams & Stilling, S.C.

It can be hard for many people to sympathize for the plight of convicted sex offenders, but this program appears to confer little if any additional safety for the public. Furthermore, we can all recognize the need for due process. Courts, not prosecutors, should order punishments.

Source: Federal lawsuit seeks to halt Wisconsin’s lifetime GPS monitoring | Buting, Williams & Stilling, S.C.

How Publicly Funded Colleges Encourage Dangerous Sex

Universities’ efforts to endorse sexually profligate lifestyles often result in cringey attempts to normalize bizarre, risky, and even destructive behavior. Events, curriculum, and programs prodding fornication, kinky activity, and pornography feed off the naiveté of freshman boys and girls to normalize particular avenues of sexual pleasure and “disinfect” campus of “heteronormativity.”

Source: How Publicly Funded Colleges Encourage Dangerous Sex