anon: “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?

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.

dwp: 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.

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?

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as a result of the Fourth Circuit’s opinion or some such nonsense (plus the decision would have been persuasive though not binding precedent had there been appeals in other circuits).

Tim: 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.

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.

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.

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!

egd: 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.

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.

Would this have a bearing on the case?

Dave N:
They could have done that by not seeking certiorari in the first instance, and then blaming the Fourth Circuit.

But that would only be binding within the 4th.

I doubt it.

http://abovethelaw.com/2009/10/lawsuit_of_the_day_defective_u.php

If you’ve ever been to the facility in Illinois, you’d be hard pressed to call it treatment.

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.

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 ?

Soronel Haetir: I notice no one has put forward a theory that the administration is trying to throw this case without appearing to do so.

They could have done that by not seeking certiorari in the first instance, and then blaming the Fourth Circuit.

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.

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.

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

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.

PersonFromPorlock beat me to it!

Ack!!!

public_defender: 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. 

Seconded.

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.

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.

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.

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.)

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.

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.)

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.