Recent 2d Cir. Opinion: United States v. Mingo

Yesterday, the 2d Cir. decided United States v. Mingo, a case about the non-delegation doctrine.

In 2006, Appellant, a member of the United States Army, was convicted of raping another member of his platoon. Following his release from military custody, he was designated a level two sex offender and signed the New York City Police Department’s rules and regulating acknowledging his duties as a registered sex offender.

However, after initially registering in 2010, he failed to update his registration when he moved from Bronx, New York to Brooklyn, New York. Accordingly, in 2016, he was indicted for failing to register under the provisions of SORNA. On appeal, the Second Circuit considered whether (1) Congress’ delegation to the Secretary of Defense of the authority to designate military offenses under SORNA as sex offenses violated the constitutional non-delegation doctrine; and (2) the Secretary of Defense, by designating Appellant’s military offense as a sex offense, violated the Administrative Procedure Act (“APA”). In a unanimous opinion, the Court affirmed his conviction.[1]
 
          I. Delegation to the Secretary of Defense Did Not Violate the Non-Delegation Doctrine
 
Appellant argued that SORNA, which allowed the Secretary of Defense to specify what military offenses constituted sex offenses, violated the non-delegation doctrine. Congress may delegate its legislative authority to another branches if it provides the branch with an “intelligible principle.”[2]

Here, Congress clearly delineated SORNA’s policy.  Accordingly, delegation of its applicability to the Secretary of Defense was appropriately limited because (1) “sex offense” has a plain meaning, which only includes criminal offenses that have an element involving a sexual act or sexual contact with another; and (2) SORNA’s intended purpose was to protect children against sex offenders and violent predators.

Additionally, the Court noted that the Supreme Court has only found a violation of the non-delegation doctrine two times in over 85 years.[3] To violate the non-delegation doctrine, there needs to be a complete lack of an intelligible principle.
 
          II. The Secretary of Defense Did Not Violate the APA
 
​Appellant argued that the Secretary of Defense failed to follow the APA’s notice-and-comment procedures when designating the military offenses that constitute sex offenses, and therefore, he was not subject to the registration requirements. However, the APA plainly provides that exceptions are made for the “military and foreign affairs” and the Court found that this delegation fell within that military exception.

Mingo Opinion

Gundy Opinion


[1] Judge Sack authored the majority opinion, which was joined by Judges Cabranes and Lohier.

[2] Congress needs to (1) clearly delineate the policy; (2) choose the public agency that will apply it; and (3) provide boundaries to the delegated authority.  Appellant apparently did not dispute the first two elements, as the Court’s analysis focuses on the boundaries of the delegated authority.

[3] The Court also cited Gundy (2019), which was decided after Appellant submitted his brief to this Court. In Gundy, which directly parallels this case, the Supreme Court found that Congress did not violate non-delegation when it gave authority to the Attorney General to specify the same requirements but for civilian offenders.

James Taglienti

Senior Intern