Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” offenders after the completion of their federal prison terms – even if the crimes for which they 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 Clause precedent. To my mind, the most telling exchange in the oral argument was this one between Justice Scalia and Solicitor General Elena Kagan:
JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.
Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it’s necessary for the good of society, but that’s not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he’s served his punishment.
GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal — in that criminal justice system, are not released irresponsibly.
Note that Kagan fails to link the confinement of these individuals to any other enumerated power of the federal government. She tries to link it instead to “the Federal power to operate a criminal justice system.” However, there is no separate enumerated power to operate a criminal justice system. Rather, Congress is only able to operate such a system in so far as it is necessary to implement one of its other powers (e.g. – to enforce punishments to deter people from violating federal laws that enforce one of those other powers). The power to incarcerate “sexually dangerous” inmates who have completed their sentences does nothing to assist in the enforcement of federal laws that are actually authorized by any of Congress’ enumerated powers. It’s also clear that the federal government can continue to operate a penal system without confining these people. Indeed, failure to confine them doesn’t even make it more difficult for the feds to continue to operate the system. It may actually make those operations easier by freeing up resources that would otherwise be expended on the confinement and care of the “sexually dangerous” former inmates.
Essentially, the government’s argument rests on the assertion that Congress has the power to engage in any “beneficial” activity that is in some way connected to something it can do under its enumerated powers, even if that “beneficial” activity does nothing to faciliate the actual implementation of those powers. Pretty much anything Congress might want to do could be justified on those grounds. As Comstock’s lawyer put it in his part of the oral argument, “the government’s argument essentially collapses into the notion, well, if it’s a good idea, it must be necessary and proper to do it.” If the Court accepts this reasoning, it would turn the Necessary and Proper Clause into a free-floating grant of unlimited power. It’s also worth pointing out that this is the main argument of the government’s brief as well. Kagan’s statement in the oral argument wasn’t just an aberration.
What will the Court decide? It’s hard for me to say. My tentative expectation is that the four liberal justices will vote with the government, since all but newly appointed Justice Sotomayor consistently opposed imposing any meaningful limits on Congress’ enumerated powers in the past (Sotomayor didn’t decide any major cases in this field during her time as a court of appeals judge). I would be surprised if Sotomayor broke with liberal orthodoxy on this particular point, even though she did ask Kagan some skeptical questions at oral argument. I also think that Thomas, Scalia, and Alito will vote for Comstock. In Alito’s case, this prediction is based on his strong pro-federalism record as a court of appeals judge, where he was one of the few lower court judges who voted to strike down a federal law banning machine gun possession. Scalia’s position in this case may be in tension with his extremely broad interpretation of the Necessary and Proper Clause in Gonzales v. Raich (which I discussed here). Still, the oral argument indicates that he is not likely to support the government. Thus, the outcome will probably come down to Kennedy and Chief Justice Roberts, neither of whom tipped his hand much today. To win, Comstock will have to get the support of both. I think the odds are against that. But stranger things have happened in the highest Court in the land.
SuperSkeptic says:
How is this even a close question?
January 12, 2010, 6:36 pmtroll_dc2 says:
The majority, if so inclined, could ignore the government’s n&p argument and decide the case on commerce-clause grounds.
In any event, I would not be surprised to see Sotomayor vote for Comstock. I question whether she really thinks like the rest of the so-called liberal justices. I predict a 6-3 or 7-2 result in favor of Comstock.
January 12, 2010, 6:37 pmChris Travers says:
Does the state still act as parens patriae for federal prisoners?
I.e. if a federal prisoner wants to deny arguably necessary medical care, is it a state judge or a federal judge that hears the case?
January 12, 2010, 6:42 pmChris says:
I think Alito seems a bit more likely to uphold the law than Roberts, and wouldn’t be surprised if Sotomayor doesn’t.
January 12, 2010, 6:48 pmChris Travers says:
Just to clarify why I ask this procedural question, an argument could be made that if the state has parens patriae power over prisoners, then protective custody pending release would be one exercise of it. However, if the issues of medical consent by federal prisoners are reviewed by state magistrates and judges, then this would fundamentally undercut this argument.
January 12, 2010, 7:04 pmMichael Ejercito says:
The Congress has no inherent power to punish sex crimes, unless it is related to one of its enumerated powers (sex crimes in D.C., sex crimes in non-state U.S. territories, sex crimes by federal troops, sex crimes by overseas diplomats, etc.)
A federal judge would hear the case.
January 12, 2010, 7:14 pmJay says:
I don’t have anything to cite, but I’m reasonably certain the answer is no; a state judge doesn’t have any authority to tell federal prison officials what to do with a prisoner in their lawful custody.
January 12, 2010, 7:16 pmIlya Somin says:
The majority, if so inclined, could ignore the government’s n&p argument and decide the case on commerce-clause grounds.
Yes, I agree. However, few if any of the justices seemed to be interested in doing this, based on their statements in oral argument.
January 12, 2010, 7:39 pmTom T. says:
Off-topic, referring to Kagan as “General Kagan” irritates me. “General” in this case is an adjective, not a noun.
January 12, 2010, 7:49 pmChris Travers says:
So is it safe to say the federal government has parens patriae power over federal prisoners?
For example suppose you have a female prisoner who is pregnant and refusing a C-section. Who can hear this case and determine whether the patient has a right to refuse this treatment?
January 12, 2010, 7:51 pmreadery says:
The First Congress appears to have been very irresponsible by passing a constitutional amendment prohibiting deprivation of liberty without due process of law. But nonetheless they did this irresponsible act, and the states ratified it. We have to live with their irresponsibility.
January 12, 2010, 8:14 pmChris Travers says:
More to the point:
If the federal government has parens patriae over federal prisoners, does this magically end at the end of the sentence? Can the federal government keep people in protective custody instead of handing to the state? Suppose this protective custody was requested by the prisoner?
In fact, would the federal government have a duty to attempt to release a prisoner only when advocates for the prisoner’s interest concluded it was safe to do so? If a prisoner feared being released and said he would commit crimes again just to get back in prison, would the prison be bound to honor his request to keep him in prison?
January 12, 2010, 8:16 pmlaw student says:
Not only would the prison not be bound to honor this request, they would be violating all sorts of laws if they kept a prisoner after his sentence was discharged.
(Which, I suppose, helps get to the heart of just why the civil commitment runaround that not just the fed BOP but also many states use for sex offenders is contentious.)
January 12, 2010, 8:23 pmDavid Schwartz says:
While I think this is a power one can make a good argument the Federal government ought to have, I’m also quite certain it is a power they in fact do not have.
January 12, 2010, 8:42 pmreadery says:
Justice Stephens’ query — why isn’t this like communicable diseases — can be easily disposed of: in epidemics, germs cross state and national lines and hence the interstate commerce clause (and possibly the defense clauses) are directly implicated. Not so for an individual mentally ill person.
Justice Breyer’s argument is more difficult. If the Spending Clause permits Congress to fund hospitals, then then there will be times when people in those hospitals will need to be restrained. Surely the power to fund hospitals is the power to do all the things that hospitals do, including restraining people for their own good?
I think the answer here has to be not really. Patients in a private hospital have the right to leave if they wish, even if doctors recommend against it. If doctors want to restrain a patient who wants to leave a private hospital, they have to go to court. Private hospitals can’t simply lock patients up who want to leave because they feel like it with no judicial oversight. And that court has to be state court, not federal court, because only states have the police power to restrain citizens against their will for their own good.
Justice Breyer makes no argument as to why the right to fund a hospital should mean the right to fund a hospital with greater powers than a normal private hospital.
January 12, 2010, 8:43 pmmethodact says:
It’s a done deal. The tell was the Court rejecting the appeal of a 17-year-sentence for a man possessing art mashups of images of kids’ faces morphed on pictures of adults, in the case, Christopher Allen v. Commonwealth of Virginia.
The prison planet is a fait accompli.
Of course these government crimes against humanity by draconian punishment for the nonce conduct of possessing art will have ultimate national security ramifications. Just as the sanction of torture does.
The globalists need terror and torture by their puppet governments in order to cow the populations into submission for eugenics. Artists, writers and intellectuals are usually culled first.
Another tell was John Yoo’s comport of triumphant hilarity over his imprimatur for torture being all in a day’s work, linked to in Professor Kerr’s post about Yoo on The Dialy Show.
January 12, 2010, 8:57 pmLaura Victoria says:
Redery: General Kagan really sidestepped this issue and though her overall deftness, and quickness on her feet was better than Dubois’, it was never adequately addressed. Dubois did a poor job addressing it among the ought-to-be anticipated interruptions of the justices.
January 12, 2010, 9:02 pmSuperSkeptic says:
Um, excuse me, how is this even a close question?
January 12, 2010, 9:08 pmA cautious reader says:
Ilya,
Alito’s vote is definitely going to the government. If you read the transcript, you’ll see that he again and again sided with the government on the grounds that the feds couldn’t operate a prison system if that meant “turning” dangerous people lose. As ridiculous as the argument is, since release is nothing more then undoing custody, Alito bought it hook, line, and sinker.
January 12, 2010, 9:27 pmChris Travers says:
I am not convinced this is the same issue though.
States have the power to lock people up in mental hospitals when they are a danger to themselves or others. This derives from a separate power that I have not seen generally assigned to the federal government.
January 12, 2010, 10:55 pmJay says:
States commit “sexually dangerous” people all the time, and there’s no sign it’s going to be held unconstitutional anytime soon. You can disagree with it if you like, but that’s not what this case is about.
Also, something just occurred to me from my law clerk days–there is a fairly elaborate set of federal statutes concerning commmitment of pre-trial federal detainees for mental evaluation at BOP facilities, including, I think, a provision for permanently (subject to periodic review) committing people to federal custody who are not competent to be tried but are found to present a danger to others. Is anyone arguing that’s unconstitutional–i.e., if someone spends his spare time mailing bombs to federal buildings, but is found incompetent to stand trial, the feds should have to rely on the state system to keep him in custody?
January 12, 2010, 11:08 pmAndrew says:
Maybe the federal government’s policy in this area is only a necessary and proper way to implement the commerce power absent a state’s explicit disagreement with that policy.
January 13, 2010, 12:11 amMike McDougal says:
Give it a few months.
January 13, 2010, 1:33 amPubliusFL says:
It’s like nails on a chalkboard. When did this start in the Supreme Court?
January 13, 2010, 10:30 amShelbyC says:
Yeah. You refer to sergeants major as “Sergeant” not major.
January 13, 2010, 11:59 amChris Travers says:
States can commit anyone at any time who is a danger to self or others. States have this responsibility and this power, the same way a state court can interfere with an individual’s right not to be assaulted by doctors in other contexts (i.e. by being able to provide surrogate consent for the individual). The federal government doesn’t have this sort of wide-ranging power which is a good thing.
Can an individual be held to be incompetent to stand trial, or acquitted by reason of insanity without his lawyers raising this? If so can the commitment be said to be truly involuntary? I think this also is a different case. Due process does not apply to understood consequences relating to facts acknowledged by the defence.
In other words, I think there are due process issues in federal cases that don’t exist in state cases, and there are issues which occur after the conviction and sentence that don’t occur if the individual acknowledged by the defence is not competent to stand trial or is acquitted because of an insanity defence.
The only argument I can see here is that the federal government may have all common law powers over federal prisoners that are traditionally assigned to the states. I don’t know if this is the case. Do you?
I would assume the court will rule between 5-4 and 7-2 in favor of the feds on this one, and it will probably be on that basis.
January 13, 2010, 1:47 pmHarpsichord says:
The government is not saying that it has a general police power. It says that as a result of other enumerated powers, it has the power to define crimes and to define punishment for such crimes and to build jails for the housing of such crimes. Then, the government says it has the power to regulate how people are released after formal punishment, and if the government determines that a convict is sexually dangerous, it can choose not to release them but to further civilly confine them.
Further, Congress has the express power to punish piracy and other felonies committed on the high seas. Thus, only one “use” of the N&P Clause is necessary as to at least piracy offenses.
January 13, 2010, 6:53 pmSCOTUSblog » Wednesday round-up says:
[...] communicable diseases; he thinks Justice Ginsburg, at least, will vote to uphold the law. At The Volokh Conspiracy, Ilya Somin opines that the government’s position is weak, but tentatively predicts that the four [...]
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