Assessing the Comstock Oral Argument

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.