I am currently in the process of drafting an amicus brief in the Supreme Court case of United States v. Comstock, on behalf of the Cato Institute and co-blogger Randy Barnett. As longtime VC readers can probably guess, we will be arguing that Article I of the Constitution does not give Congress power to retain custody of “sexually dangerous” persons held in federal prisons after their term of imprisonment ends.
I was extremely surprised to learn that, in her Supreme Court Petitioner’s brief for the federal government, Solicitor General Elena Kagan, is not arguing that Congress has the power to enact this law under its power to regulate interstate commerce. Instead, she is arguing only that Congress has the power to hold the “sexually dangerous” former convicts under its power to operate a federal prison system and the Necessary and Proper Clause This, despite the fact that existing Supreme Court precedent lends considerable support to a Commerce Clause argument. And of course the Fourth Circuit considered the Commerce Clause issue when it ruled against the government in the decision that led the Supremes to take the case.
Why would the Solicitor General choose to forego a potentially winning argument? One possibility is that she simply doesn’t think that it is likely to win. But even if she is uncertain about the prospects, why not at least try? After all, nothing prevents the United States from making both the Commerce Clause and Necessary and Proper Clause arguments. Another possibility is that either Kagan or one of her superiors in the Obama Administration secretly disagrees with the Supreme Court’s most expansive Commerce Clause precedents, such as Gonzales v. Raich, and does not want to see them extended. I hope this is true, but it seems unlikely for any number of reasons. I highly doubt that either Kagan or other high-ranking members of the Obama Justice Department disagree with the near-universal consensus among liberal jurists and legal scholars in favor of virtually unlimited congressional Commerce Clause authority.
The last possibility that occurs to me is that the administration not only expects the Commerce Clause argument to lose but fears that if that happens, it will create an unfavorable precedent for the federal government in future cases; even if the feds manage to win Comstock itself on the narrower penal system argument, that theory would not apply to other matters that the feds might seek to regulate under the Commerce Clause. As a result, the SG be willing to forego a (small) chance of winning the case on the Commerce Clause in exchange for increasing the likelihood that the Court might avoid the Commerce Clause issue entirely in making its ruling. If this conjecture is correct, it suggests that Kagan and the administration believe that the justices are more willing to cut back on Raich than I fear might be the case. If that really is the reason for the government’s posture in Comstock, I would be very happy. Kagan and her staff surely have a lot more inside information about the justices’ views than I do.
Of course, it’s always possible that they have some other reason entirely for omitting the Commerce Clause. There are a lot of outstanding appellate lawyers in the solicitor general’s office, and one of them could have come up with some clever tactical reason for taking this approach that I simply haven’t thought of.
NOTE: I should emphasize that the above speculations are solely my own conjectures and do not necessarily represent the views of the Cato Institute or Randy Barnett, or the other lawyers who are helping draft the brief.
J. Aldridge says:
I don’t know why the Feds bother to abuse Commerce Clause or the Necessary and Proper Clause anymore in making a case for wild, expanded powers. They should just say we can do anything we want because we can, and everything we do is a “incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it.” (evil laugh)
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October 28, 2009, 3:23 amJeff Walden says:
I seem to recall (but not in any detail) reading in the rules of the Court something about word limits in briefs. Might that have applied here? (I doubt it did, but I don’t know and expect others can call that information to mind more readily than I can find it by reading and examination.)
For what little it’s worth, I agree this doesn’t make much sense, although hopefully it’s a mistake on which Comstock can capitalize.
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October 28, 2009, 3:51 amTom Huff says:
I gather from the Fourth Circuit opinion that government counsel performed somewhat poorly at oral argument. Don’t know if you’ve pulled the transcript, but perhaps the government made some harmful concessions at argument re: the commerce clause? Just a thought.
That said, I suspect that Kagan thought it would be a loser argument and a distraction to include in the brief. She probably worried about giving the impression that the government was desperate and simply throwing the kitchen sink into its brief. (I respectfully disagree that Raich lends considerable support to a CC argument here. While I disagree with Raich, there was at least an interstate market — albeit a black market — for the substance being regulated there. I don’t see a reasonable analogy re sexually dangerous persons.)
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October 28, 2009, 4:00 amIlya Somin says:
I respectfully disagree that Raich lends considerable support to a CC argument here. While I disagree with Raich, there was at least an interstate market — albeit a black market — for the substance being regulated there. I don’t see a reasonable analogy re sexually dangerous persons
As I explained in the linked post, Raich isn’t limited to situations where there is an interstate market, but rather has incredibly broad reasoning that would apply to a wide range of other contexts.
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October 28, 2009, 4:03 amTom Huff says:
As I explained in the linked post, Raich isn’t limited to situations where there is an interstate market, but rather has incredibly broad reasoning that would apply to a wide range of other contexts.
I had read your previous post, which is obviously well-reasoned. But I just don’t see Scalia/Kennedy buying the idea that Section 4248 can be properly viewed as part of a “broader regulatory scheme” targeting something economic. Especially in light of Morrison, which dealt with crime and sexual violence. (But to be clear, this is just my instinct, as a litigator and a person who reads a lot of Supreme Court opinions. I claim absolutely no expertise or insider knowledge.)
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October 28, 2009, 4:18 amIlya Somin says:
I just don’t see Scalia/Kennedy buying the idea that Section 4248 can be properly viewed as part of a “broader regulatory scheme” targeting something economic. Especially in light of Morrison, which dealt with crime and sexual violence.
That’s certainly possible. On the other hand, Kennedy signed on to the majority opinion in Raich, even though he could have written a separate concurrence. As for Scalia (who did write a separate concurring opinion in Raich), his vote isn’t needed to produce a 5–4 majority in favor of the government on the Commerce Clause issue, assuming that Sotomayor votes that way (as is likely) and that Roberts and Alito both dissent.
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October 28, 2009, 4:47 amintermeddler says:
Its interesting how this position interacts w/ the Ct’s cases stating that civil commitment is not punishment. I only skimmed the brief, but this quote jumped out at me: “Civil commitment beyond the term of a prison sentence serves two general purposes necessary and proper to the operation of the prison system, which is unquestionably within the authority of Congress to establish for the punishment of crimes falling within its Article I powers.”
This formulation ignores a major issue, as it assumes that the modern practice of civil commitment is obviously part of the traditional penal system authorized by the Constitution. The mere fact that the fed prison system is used in civil regulation can’t be enough to make the regulation necessary and proper to the operation of the prison system. For example, if it was a Bureau of Prisons regulation that banned medical marijuana and the Bureau of Prisons was in charge of enforcement, would the govt no longer need to rely on the Commerce Clause in Raich? What if in Morrison Congress had given the Bureau of Prisons authority to administer VAWA? So, how then do we define the function of the fed penal system? Well, one obvious definition would be to apply punishment. But the Court’s reasoning in the civil commitment cases is that civil commitment is definitively not punishment.
The govt seems to be relying on the fact that right up until the point of civil commitment, the penal system has physical custody of the committed. But so what? The whole reason the govt needs to rely on civil commitment is because its physical custody for the purposes of punishment has run out. I was always troubled by the Court’s position that civil commitment didn’t trigger the constitutional protections attendant to criminal punishment; I sincerely hope the govt will not be allowed to have its cake and eat it too.
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October 28, 2009, 5:03 ampublic_defender says:
On a side note, thanks for putting your pro bono time and energy into this. Laws against sex offenders are politically popular, but they often push and exceed the boundaries of government power.
Part of the reason I enjoy reading this blog is that libertarians are one of the few allies we criminal defense lawyers have when defending our clients. Generally speaking, the winning ideas for defending our clients no longer come from the left. They now come from libertarians and conservatives.
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October 28, 2009, 5:53 amHauk says:
Seconded.
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October 28, 2009, 7:21 amPersonFromPorlock says:
It’s the Obama administration: don’t overlook the possibility that Kagan (or whoever wrote the brief) is simply incompetent.
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October 28, 2009, 7:50 amcorneille1640 says:
Ack!
PersonFromPorlock beat me to it!
Ack!!!
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October 28, 2009, 7:59 amCleanville Tziabatz says:
I think they are going for a freestanding sex offender exception to the Constitution. That would be a broader and more flexible tool on a going forward basis, and, at the same time, it would be more palatable to justices who have compunctions about the commerce clause for non-crime-related reasons. Makes the case be about feminine empathy for victims of sex offense and masculine toughness on crime and NOT about the dismal science of economics.
That said, it might not work. Fret not! If it does not, then John Walsh can commission a study to determine whether registerable sex offenders in the neighborhood affect residential real estate values, and then, study in hand, re-pass the law, but this time have it order civil commitment of anyone who could potentially lower his neighbor’s house value because of the registration requirements that have been imposed upon him. This approach has the virtue of getting rid of that pesky “dangerousness” requirement, in the event some uppity shrink tries to argue that consentual (sp?) teenage sex or sexting or peeing on a bush does not necessarily mean that the perp is still dangerous 30 or 40 years later when his sentence ends.
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October 28, 2009, 8:24 amp.d. says:
Maybe she’s throwing a life preserver to the conservative wing of the court that’s afraid of the awkward headlines and public reaction of “Supreme Court Overturns Sex Offender Law 5–4,” and the inevitable arguments that they’re so wedded to this federalism silliness that they’re willing to help out sex offenders. Obviously oversimplifying, but jettisoning the Commerce Clause argument in fear that it’s a loser, or at least something divisive, could lead to a larger majority to uphold the law. Maybe the CC argument will get more play in the reply briefs...
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October 28, 2009, 8:34 amTamerlane says:
Since state courts have used vaguely worded constitutional preambles to trump both clearly written constitutional provisions and black letter law, e.g., the Florida Supremes in Bush v. Gore; why couldn’t Kagan just do something similar on the federal level and argue that civil commitment of sexually dangerous predators provides “for the general welfare”? This will provide a useful federal precedent as we continue to chip away at the body of the federal Constitution and its amendments ;-)
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October 28, 2009, 8:38 amcoreyrayburnyung says:
Hi Ilya,
I’m glad you started this discussion. I was going to do a couple posts on this topic after the government’s last brief was submitted. I’ll try to do a couple posts on this tonight after my long teaching day. However, I do have two major ideas of why the government has taken the course that it has:
1) I’m not sure this has anything to do with Kagan and her office. The arguments in the brief are the same as the government made before the 4th Circuit and the district court. I think this might simply be a case of letting the lawyers charged with this particular subject area (the government lawyers who have primarily handled this are in charge of similar cases nationally) decide the strategy (even though it has failed to get a single vote).
2) Greenwood v. United States. It is an older case, but it seems to be the focal point of the government’s argument. If you think that the Greenwood facts are analogous, then you really don’t need to delve into the Commerce Clause mess.
I have to say I was also surprised, but as I’ll blog about a bit later, I think the government’s strategy may ultimately work to its favor (even if it was not so designed).
Best,
Corey
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October 28, 2009, 9:31 amJoe T. Guest says:
On the one hand, the Necessary and Proper Clause has long been viewed by dreamy Living Constitutionalists as the Vessel of All Hopes and Dreams, big enough to contain any law that Congress wishes to write. Surely, this argument will please the Howard Zinns of the world. “Ahh, she’s one of us!” It would be a nice sop to that region of the legal & political communities.
On the other hand, if one thought that a law was bad, and wanted the law to get shot down in flames in a fairly glorious manner, arguing that the Necessary and Proper Clause provided the substantive authorization for that law pretty much paints a target on it, hands a truckful of Sidewinder missiles to the Court, and scrambles the Court’s intellectual fighter squadrons. There’s no reason that trial prosecutors would be immune from such thinking, or that successive levels of appellate lawyers would be immune to it either.
Of course incompetence is a possibility, one of the Living Constitutionalists may have in fact written the brief, but few things get out of any Administration’s DOJ without multiple levels of clearance through competent, non-insane attorneys who meet the minimal standards of professionalism of at least one state bar, so the idea that some lone drafter or even the SG herself drafted it and decided to fly solo, doesn’t sound plausible. Of course if that’s what DOJ Appellate, the SG and the front office actually believe, it’s possible that they’re suffering from mass hysteria or some other form of delusion common to highly excitable crowds.
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October 28, 2009, 9:41 amegd says:
It’s also possible that the Administration is setting up a standard for cases in order to protect themselves when a law they don’t like gets challenged later. For example, if the DOMA gets challenged, the government could present a weak argument and then say “we don’t believe the CC extends that far, look at our arguments in Comstock.”
An alternative is that the Administration is trying to control the direction of precedent in a (arguably) politically unimportant case. If the power to pass civil commitment laws exists in a separate area of the Constitution, then even if the “Commerce Clause Means The Government Can Regulate Everything” standard eventually gets shot down, there isn’t a major loss to government power.
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October 28, 2009, 10:06 amSoronel Haetir says:
I notice no one has put forward a theory that the administration is trying to throw this case without appearing to do so.
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October 28, 2009, 10:31 amWednesday Round-up | SCOTUSblog says:
[...] his post on the Volokh Conspiracy, Ilya Somin discusses the possible reasons why the Solicitor General, in her petition for [...]
Dave N says:
They could have done that by not seeking certiorari in the first instance, and then blaming the Fourth Circuit.
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October 28, 2009, 10:50 amPeteP says:
What is more bothersome to me is the entire concept of how our ‘system’works.
In the blog above this one, EV makes reference to ’ an issue that was not properly preserved below’, IOW ‘some lawyer didn’t say the magic words at the magic moment, so now the citizen is screwed and that’s just the way it is’.
Now, you mention the idea of ‘what arguments the lawyer makes in the SC brief’ being a deciding factor as to what rights, what points of law, will be considered. IOW, again, ‘the lawyer didnt’ say the magic words at the magic moment, so the citizen is screwed again’.
So, the Justices will sit there, being fully cognizant of points of law that would prove for one side or the other, and ignore them because the lawyer didn’t say ‘May I, Mother ?’.
What is this, a big game of ‘Simon Says’ ? Is that what passes for ‘justice’ in this country ?
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October 28, 2009, 11:00 amdwp says:
Another possibility is the public backlash, a la Kelo, from a win on this theory.
If the government were to prevail on a Commerce Clause theory, opponents of expansive commerce power would have a very simple rallying cry: this power has now been expanded to the point where the government can lock someone up indefinitely, outside the normal bounds of the criminal justice system.
For supporters, it’d be helpful to cabin the justification for that kind of power to something that seems vaguely related to crime and punishment.
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October 28, 2009, 11:23 amEli Rabett says:
It’s interesting that parsimony is not a principle for lawyers. While I guess that getting paid by the hour encourages this, it would seem that judges would prefer tighter briefs.
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October 28, 2009, 11:37 amjosh says:
Let me second (or third) public defender. I’ve represented a sexually violent person in commitment proceedings in state court. But, unfortunately, that’s not the subject of this post. I apologize for the tangent, but I’d be interested in hearing Ilya’s views on SVP laws generally, and not just on the federalism issue. Kansas v. Crane and Kansas v. Hendricks are 5–4 splits, holding that such laws are constitutional (and not ex post facto or double jeopardy violations) because the regime is “treatment.”
If you’ve ever been to the facility in Illinois, you’d be hard pressed to call it treatment.
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October 28, 2009, 11:45 amPeteP says:
“It’s interesting that parsimony is not a principle for lawyers. While I guess that getting paid by the hour encourages this, it would seem that judges would prefer tighter briefs.”
I doubt it.
http://abovethelaw.com/2009/10/lawsuit_of_the_day_defective_u.php
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October 28, 2009, 11:45 amrawdawgbuffalo says:
will we ever learn AfPak is a Pasthun problem, what can we do differently than russia w 200K troops in 8 years?
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October 28, 2009, 11:53 amSoronel Haetir says:
But that would only be binding within the 4th.
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October 28, 2009, 12:23 pmanon says:
“Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.”
Would this have a bearing on the case?
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October 28, 2009, 12:33 pmTim says:
Obama’s Justice Department has already argued explicitly that DOMA is constitutional. See here, where I link to here at Volokh. If Obama’s DOJ was trying to avoid making arguments that’d be used against them in the future, it’s a little late for that.
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October 28, 2009, 12:40 pmfwb says:
Maybe it’s because the commerce clause is NOT broad and is actually restricted to exactly what is says, commerce where the states are involved, i.e. regulating the regulators so the state’s don’t screw with each other.
All the rest is BS pulled from the nether regions of those who would usurp authority. The evidence lies in the 20-some odd other delegations of power.
But then one must climb out of the box to get a better perspective.
Tiocfaidh ar la!
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October 28, 2009, 1:38 pmjrose says:
I agree with anon, and disagree with Ilya, that there is not a rational basis that the statute (acting on its own) substantially impacts interstate commerce. While Raich restored the rational basis standard, it did not reverse Morrison. The law in question in Morrison must therefore fail the rational basis test, and by similar reasoning so does the law in question here.
On the other hand unlike the law in Morrison, this law may be saved by arguing (as Iyla does) there is a rational basis that it is part of a broader, permissible regulatory scheme. Ilya goes on to say that only a minimal basis for concluding there is a connection between this law and the broader scheme is required. I’m not sure Raich has to be read that way. It might instead be read that a rational basis is needed that the broader scheme would be undercut without this law. I’m not sure this law passes that test.
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October 28, 2009, 2:03 pmegd says:
Point taken, but I just used DOMA as an example. The Democrat-controlled Congress has also re-upped the Patriot act or I would have used that as an example.
Are there any statutes that the Obama Administration has vowed to overturn, yet hasn’t supported yet? Or have I just shot my own argument full of holes.
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October 28, 2009, 2:10 pmDave N says:
Soronel Haetir,
I understand such a ruling would only be binding in the Fourth Circuit — but the government could then lament that HAD to stop prosecuting these cases nationwide as a result of the Fourth Circuit’s opinion or some such nonsense (plus the decision would have been persuasive though not binding precedent had there been appeals in other circuits).
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October 28, 2009, 5:21 pmloki13 says:
Worst. Argument. Ever.
Public backlash in Kelo had nothing to do with legal reasoning. It was simple– SCOTUS will allow *evil developers* to take your house. In addition, while I doubt that I will get much suppourt here, the backlash against Kelo was somewhat overblown; while it is certainly a cause celebre in some circles, I don’t think that Joe Q. Public then (and *certainly not today*) would be able to differentiate Kelo from Kyllo.
As for this– do you think the outrage would be over the commerce clause? Or that SCOTUS is overruling Congress on some obscure part of the Constitution that the average person doesn’t care about in order to release sex offenders?
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October 28, 2009, 7:21 pmDNJ says:
I agree this is surprising. I think the most plausible explanation is that the Administration thinks the Necessary and Proper argument is stronger and that it will on it, and that it does not want to give the Court a chance to reaffirm that there are limits on the Commerce Clause.
I think this is the strongest argument against the law on the Commerce Clause issue. Its plausible that this holding applies here. So the Court court well hold that Congress doesn’t have authority under the Commerce Clause by relying on Morrison and distinguishing Raich. The problem I have always had with Ilya’s arguments about Raich being very broad (and I support Raich and a broad commerce clause; I’m with the liberal justices on this) is that it ignores Lopez and Morrison, which remain on the books and were only distinguished in Raich. They remain binding precedent for all inferior federal courts.
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October 28, 2009, 7:47 pmThe Volokh Conspiracy » Blog Archive » Assessing the Comstock Oral Argument says:
[...] were originally convicted have no connection to sexual predation. Somewhat strangely, in my view, the government’s brief focused almost entirely on the Necessary and Proper Clause, and largely ignored potentially effective arguments that they could prevail under current Commerce [...]