Co-blogger Ken Anderson asks:
Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?
These issues were not discussed in the briefs of the parties, the oral arguments, or any of the amicus briefs I have seen (though I haven’t read all of the latter). Even if Comstock wins, I don’t think the decision will have much impact on national security detentions. The Comstock litigation only addresses Congress’ power to confine people using its powers under the Commerce Clause and the Necessary and Proper Clause. The detention of terrorists and other enemy combatants is authorized by some combination of Congress’ power to declare war, its power to “raise and support Armies” (which presumably includes those personnel responsible for holding enemy prisoners); its power to establish laws for the “government and regulation” of the armed forces (including procedures for detaining enemy combatants), and its power to “define and punish” offenses under the “law of nations” (which includes the power to punish enemy combatants who have committed war crimes). Some detentions might also be authorized by the president’s power as commander-in-chief, though in my view such detentions are subject to congressional regulation.
Mark N. says:
But couldn’t Congress create a new rationale for detaining terrorists in the event of a decision permitting this kind of Commerce-Clause-rooted administrative detention? Terrorism clearly harms interstate commerce.
January 12, 2010, 11:51 pmIlya Somin says:
But couldn’t Congress create a new rationale for detaining terrorists in the event of a decision permitting this kind of Commerce-Clause-rooted administrative detention? Terrorism clearly harms interstate commerce.
Sure it could. I’m just saying that Congress doesn’t need to do that in order to have a constitutional rationale for a law allowing detention of terrorists or other enemy combatants.
January 12, 2010, 11:54 pmKenneth Anderson says:
Ilya, thanks – and thanks Orin and I’d love to see the fourth amendment piece when ever you wanted to send it! It is wonderful to be able to ask questions like this …!
January 13, 2010, 12:21 amreadery says:
The two cases are totally different. The argument in Comstock is that the Federal Government cannot restrain people against their will except in the service of an enumerated power and that protecting people from citizen-on-citizen violence is not a federal constitutional responsibility.
Protecting people from foreign invasion, however, is. So long as defense is used as the constitutonal hook, then the two issues are totally different. Comstock doesn’t address civil rights, it addresses limits on federal power in the absence of any civil rights.
January 13, 2010, 2:02 amChris Travers says:
Also, my thinking is national security detainees, who have not been charged with a crime, have access to a habeas process in some form, right? I would expect that those picked up away from areas of actual military operations (narrowly defined) would be in a better position to argue such, right?
January 13, 2010, 1:20 pmmethodact says:
You might examine your query in reverse. How has secret, harsh and indefinite detention (rationalized by national security), re terrorism, migrated to the war on sex?
Isn’t this what spawned Comstock in the first place, making it more plausible to overcome all those Constitutional infirmities?
Abrogation of rights feeds on itself in almost a vicious circle, so draconian detentions of terrorists and sex offenders will tend to drive one another.
CJ Roberts’ 2009 Year-End Report on the Federal Judiciary points out that case filings are highest since the Prohibition and that sex case filings are on the rise and among their mainstays. Business is good, so they are not likely to rock that trend. (Because the terrorist category, firearms and explosive-related filings, declined).
Some background on Sex Offender Laws.
It should be noted that reports are coming out of naked body scanners being ordered and installed at court houses as far back as a year ago. Accoutrements of power for judges? Even after the Oklahoma District Judge’s in-court use of a penis pump?
January 13, 2010, 1:34 pmM-Dub says:
Just to return to the original question:
I understand that there are other bases for confining people who are in fact terrorists. But couldn’t Comstock be used against people who are actually determined not to be terrorists?
Imagine a situation, for instance, where a Guantanamo detainee successfully wins a habeas petition, and his release is ordered. If Kagan’s argument in Comstock floats, the government could then say, “Sure, we’ll release him, but we have an obligation to do so in a ‘responsible’ way. It’s going to take some time to do that. And, by the way, our detainee seems to have picked up some violent inclinations during his detention. So, we need to hold onto him for a bit longer.”
In other words, the Government’s rationale in Comstock could be used to indefinitely ensnare any individuals who find themselves in federal custody for any reason, including detainees.
January 13, 2010, 4:44 pmmethodact says:
Are prognostications generally more accurate when assuming bad faith or good faith in government and institutions?
January 13, 2010, 5:15 pm