W&L Law Professor Argues 4th Circuit Appeal for U.S.

Lexington, VA • Monday, December 20, 2010

A. Benjamin Spencer
Earlier this month, Washington and Lee law professor A. Benjamin Spencer argued the case of United States v. Burns before the U.S. Court of Appeals for the Fourth Circuit. Spencer argued in the case for the government in his capacity as a Special Assistant U.S. Attorney, a position to which he was appointed in 2009 and holds as a pro bono public service.

The Burns case involved a sex offender who had been convicted under the 18 USC 2255, a statute that makes it a crime for sex offenders to travel across state lines without updating their registration in either their home state or the states to which they relocate, provided they are required to register.  The requirement to register as a sex offender is found in the Sex Offender Registration and Notification Act (SORNA), which was enacted in July 2006. 

Burns, whose underlying sex offense conviction was from 2005 and thus pre-dated SORNA's enactment date, argued that the statute, in empowering the Attorney General to determine that it would apply retroactively to sex offenders like Burns with pre-SORNA convictions, was an unconstitutional delegation of legislative authority.  Burns also argued that application of the SORNA registration requirements to him was unconstitutional in violation of the Ex Post Facto Clause of the U.S. Constitution and that prosecuting him in the Western District of Virginia was improper under criminal venue rules.

On behalf of the government, Spencer argued that the U.S. Supreme Court has upheld delegations of this kind, even when they implicate criminal liability, so long as Congress has laid down an "intelligible principle" to which the delegee must conform. Here, Congress indicated that its goal was to protect the public against sex offenders and to create a comprehensive, national sex registration scheme. 

“The Attorney General furthered Congress's will when he decided to include within SORNA's scope sex offenders with pre-enactment convictions, since there is no meaningful difference in the threat to public safety posed by such sex offenders and those with post-enactment convictions,” says Spencer.  “The circuits that have considered this issue have all agreed with this reasoning to uphold the statute against non-delegation challenges.”

A decision in the case should be issued within the next few months. This was Spencer’s second oral argument since his appointment. Earlier this year, he won an appeal in the Fourth Circuit on behalf of the government in United States v. Stewart.

One of the nation's rising stars in the field of civil procedure and federal jurisdiction, Prof. Spencer was recently elected Chair of the Virginia State Bar's Section on the Education of Lawyers.  In addition, Spencer sits on the West Publishing Company Law School Advisory Board.

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