Earlier today, I blogged the syllabus of the majority opinion, and noted my earlier thoughts that the statute is likely constitutional. I mentioned that I might have more thoughts after I read the opinions, so here are those thoughts — but note that they’re brief and rather shallow, since I’m not a scholar of federal power or federal-state relations (I focus more on the specific individual rights guarantees):
1. I have tentatively come around to Justice Thomas’s dissenting view, which is largely joined by Justice Scalia. I think he’s probably right that Congress’s having the enumerated power to imprison someone for a crime — for instance, the power under the Commerce Clause to punish crimes that interfere with interstate commerce, or the power under the Post Office Clause to punish crimes against the mails — does not extend to protecting state citizens after the person is released following the expiration of its term. That should be a matter left to the states. And despite the majority’s and concurrences’ suggestion that the states may be unable or unwilling to lock up people who are dangerous (whether because they are insane, or because they have been found to be sexually violent predators), I think Justice Thomas is probably correct that this assertion is both factually mistaken and legally irrelevant.
2. Unlike the Kennedy and Alito concurrences, which at least stress the importance of constitutional limits on federal power — though they disagree with Thomas and Scalia about whether those limits were transgressed here — the majority has pretty broad language in support of nearly unlimited federal authority. And this language was joined by Chief Justice Roberts, and not just the four liberals. This suggests that the brief resurrection of the enumerated powers doctrine, under which courts would strike down some Congressional actions as going beyond the constitutionally granted powers (even without regard to, say, the First Amendment or similar express rights guarantees), may be largely over.
In the mid-1990s, United States v. Lopez, United States v. Morrison, and Boerne v. City of Flores did set aside Congressional action on those grounds. But more recently Gonzales v. Raich (the medical marijuana case) and this case cast doubt on that revival.
To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test. And while it acknowledges, citing Lopez, that a statute might be unconstitutional if “the links between [it] and an enumerated Article I power are … too attenuated,” the majority stresses that even quite indirect connections can qualify as “not too attenuated.”
As Randy points out, this doesn’t deal with the question whether some laws are unconstitutional because they fail the “proper” prong of the “necessary and proper” clause. It’s also possible that Chief Justice Roberts will in a later case take a view that’s more constraining of federal power; it’s hard to confidently predict a Justice’s views based on one case. And, as I said, the statute involved here is somewhat peculiar, so a future Court might distinguish the case on the facts, and not focus too much on the broad reasoning. Still, the majority opinion, and Chief Justice Roberts’ signing of the opinion, aren’t good signs for the prospect of further judicial enforcement of the enumerated powers doctrine.
Steve says:
Are we to infer that Justices Scalia and Thomas would grant a hypothetical habeas petition from John Hinckley? After all, if it’s unconstitutional to imprison someone who has been convicted and served their sentence, surely it can be no more permissible to imprison someone who was never found guilty at all.
May 17, 2010, 1:46 pmNunzio says:
Interesting case. In the end, McCullough’s means “plainly adapted” to a legitimate end is really no different than “rationally related.” I don’t think Roberts decision to join in the opinion, or Kennedy’s concurrence, suggests otherwise.
Justice Thomas’ dissent is very compelling, but, as in Raich, he seems to want to narrow McCullough just a bit.
May 17, 2010, 1:49 pmChris Travers says:
I dunno. I’m pretty torn between Thomas’s dissent and Alito’s concurrence, but my own view of MucCulloch and so forth is somewhat different than the court’s.
ISTM that laws should be seen as both necessary and proper when the following conditions are, on the balance, true:
1) They are closely related to the enumerated powers (i.e. not far removed from the enumerated powers)
2) They are necessary to the execution of enumerated powers
3) They do not tread heavily on state powers/responsibilities and personal liberties
I say “on the balance” because this strikes me as a balancing measure, and the further one gets away from the enumerated power, the more scrutiny should be applied. So for example, one could argue that in Raich, the law was not “closely related” to the enumerated powers, but was sufficiently necessary to existing regulatory frameworks to overcome that concern. On the other hand the Violence Against Women act seems to my mind to be clearly outside any penumbra created by the N+P clause.
It seems to me that there are substantial issues regarding #3, particularly if the commitment is of a long term. If it’s just temporary that’s one thing, but if it’s effectively a life sentence, that’s a problem.
May 17, 2010, 2:24 pmMartinned says:
Now that’s an intriguing question…
May 17, 2010, 2:34 pmThe solution might turn on the distinction between civil commitment and being found criminally insane. But I don’t know nearly enough about this to be sure.
Dilan Esper says:
Justice Thomas’ dissent is very compelling, but, as in Raich, he seems to want to narrow McCullough just a bit.
More than a bit. And personally, I think McCulloch’s construction of necessary and proper is much more compelling and consistent with the Constitutional text than some of the broadest interpretations of the commerce clause are. Not only that, but I suspect that most judges, liberal or conservative, agree with me about this. VERY FEW judges are going to want to get involved in the project of determining whether ordinary legislation that doesn’t implicate provisions of the bill of rights is “necessary” in anything more than the most superficial sense. That would be a recipe for far more judicial activism than we already have.
May 17, 2010, 2:42 pmSnaphappy says:
As a proponent of a strong federal power (as against the nonexistent or ill considered efforts of the states (see, e.g., Arizona, California)) I must say: Hooray! On the other hand, I don’t like Congress either, so Boo! But of course we sill have the Supreme Court to overturn federal statutes that violate constitutional rights of real people, so I guess overall I’m at: Hooray!
May 17, 2010, 2:48 pmDjDiverDan says:
I never really considered the concept of “enumerated powers” to be a “doctrine” of Constitutional construction, so much as a fundamental tenet of Constitutional federalism – the Federal Government has a limited scope for regulation, bounded by the enumerated powers listed in Article I, Section 8 of the Constitution, while the States (which are at least theoretically more responsive and accountable to their electorate, if for no other reason that the smaller size of the electorate and the fact that the issues addressed by the States are more “local” for that electorate) are granted the entire residual of sovereign authority. To say that the era of the “enumerated powers doctrine” is “largely over” is simply a euphemism for saying that the era of Consitutional Democracy is now “largely over.” It doesn’t matter at all to a majority of the Court that our founders proposed, and the citizens ratified, a Constitution of “enumerated” federal powers – the Necessary & Proper Clause is now to be applied so as to erase all of the limits. And yes, I think Justice Thomas got it exactly right.
May 17, 2010, 2:57 pmJay says:
That’s a really good question. There is a whole collection of federal statutes (predating the Walsh Act) governing commitment and evaluation in the context of those initially charged with criminal offenses. 18 USC 4241 et seq. See in particular s. 4246(d), which authorizes the Attorney General to detain people who are incompetent to stand trial (and so not able to be found not guilty by reason of insanity, as Hinckley was–that’s based on your mental state at the time you committed the offense, not at the time of trial), if their release “would create a substantial risk of bodily injury to another person or serious damage to property of another.” It does say that the AG shall first try to get them in state custody, and only keep them if the state won’t accept the person. The Walsh Act provision is s. 4248, relating to “sexually dangerous” persons. I’m not sure I understand what, if anything, would distinguish the two, in the eyes of the dissenters.
May 17, 2010, 3:05 pmTuna says:
Someone correct me if I’m wrong about this:
A single person, who lives alone with no relatives, has cancer. The person has no prior criminal record whatsoever (not even a traffic ticket). The person decides to grow, in their own home, 1 plant (a marijuana plant). They grow it secretly, they harvest it secretly, and they use it secretly in the home, never leaving the house while under the influence.
First, under Raich, the federal government has the power (under the commerce clause) to storm into that person’s home, arrest the person, and put them in a cage (prison cell) for 5 years (with a $250,000 fine).
Now, let’s imagine that while in prison, this individual gets raped a few times. He becomes angry, and has strange, sexual, violent dreams which he reports to his psychiatrist.
The situation that exists today, under Comstock, is that the federal government can imprison this person for the rest of his life–without a trial–merely by showing that he is a “sexual danger”. He doesn’t have to ever have committed a sexual offense before. All he has to be is a “risk to others”.
May 17, 2010, 3:10 pmSteve says:
Now, let’s imagine that while in prison, this individual gets raped a few times. He becomes angry, and has strange, sexual, violent dreams which he reports to his psychiatrist.
You’re right up to a point: the statute does not require that the person be in jail for a sex-related offense. But there has to be a finding by a court that he is a “sexually dangerous person.” Under 18 USC 4247, that means “a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.”
So the definition could apply to, for example, someone who has committed prison rape while locked up for a non-sexual offense. But it doesn’t encompass someone who has merely had violent dreams.
May 17, 2010, 4:00 pmSuperSkeptic says:
Yet. But it doesn’t seem that far-fetched, that is, it may not be “too attenuated” at some time in the future, further down on the slippery-slope.
May 17, 2010, 4:50 pmChris Travers says:
That’s the due process issue which will hopefully result in the statute being invalidated on remand.
May 17, 2010, 4:51 pmPubliusFL says:
Here’s a different distinction: In Hinckley’s case the insanity is directly related to the offense for which he was prosecuted. If you grant the power to define the offense, committing the criminally insane offender seems just as necessary and proper as incarcerating the sane offender. In Comstock, by contrast, the reason for the civil commitment might not have any relation at all to the offense for which the individual was incarcerated or any other offense the feds have the power to define.
May 17, 2010, 5:15 pmShelbyC says:
Didn’t Hinckely do his deed in DC?
May 17, 2010, 5:36 pmSteve says:
Yet. But it doesn’t seem that far-fetched, that is, it may not be “too attenuated” at some time in the future, further down on the slippery-slope.
I cited the specific statutory language to establish that the government does not, in fact, have this power. If you don’t think it’s far-fetched to speculate that the government may enact a different statute in the future that gives them the power to incarcerate someone based solely upon their violent dreams, okay.
May 17, 2010, 5:51 pmInstapundit » Blog Archive » “VERY BAD NEWS FOR CONSTITUTIONAL FEDERALISM,” says Ilya Somin. And though “the statute involved he… says:
[...] BAD NEWS FOR CONSTITUTIONAL FEDERALISM,” says Ilya Somin. And though “the statute involved here is somewhat peculiar,” the Chief Justice’s joining the majority is not a good sign, says Eugene Volokh. But, [...]
May 17, 2010, 6:00 pmDave M. says:
What’s really great for the long run: on NPR’s Facebook page, the comments in response to the story about Comstock are overwhelmingly negative about the majority opinion. It’s not any sort of a scientific gauge, but still…
May 17, 2010, 6:12 pmSuperSkeptic says:
What do you need a statute for when you can interpret the Constitution? If you think the government’s power doesn’t expand based on constitutional interpretations which decree that the government had the power in question all along, okay.
May 17, 2010, 6:25 pmSteve says:
What’s really great for the long run: on NPR’s Facebook page, the comments in response to the story about Comstock are overwhelmingly negative about the majority opinion.
I am guessing that a very small percentage of the comments, positive or negative, have anything to do with the federalism question that is the actual basis of the court’s opinion.
May 17, 2010, 6:42 pmTaking stock of Comstock | a public defender says:
[...] Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a [...]
May 17, 2010, 9:45 pmDM says:
No, no… Most were objections to how much of an over-reach this is, even on NPC grounds.
May 17, 2010, 11:32 pmMay 18 roundup says:
[...] for life only if they haven’t had protections of formal trial [Popehat, Pilon, Shapiro, Volokh, Pattis] Kennedy returns to use of international “consensus” as guide in constitutional [...]
May 18, 2010, 12:10 amDissenting Reason says:
Had Roberts not joined the majority opinion, Stevens could have chosen the author. Stevens might have chosen himself instead of Breyer.
Perhaps Roberts wanted a broader Breyersque majority that could be more easily knocked down as unworkable in future.
May 18, 2010, 2:15 amJay says:
Except, as was pointed out upthread, the statute defines “sexually dangerous” in a more specific way than that.
May 18, 2010, 2:49 amNathan says:
Dissenting Reason,
That’s the opposite of how it usually goes in the tactically-voting Chief Justice fanfic cannon. This is the first time I’ve ever heard it suggested that a CJ would join the majority in order to fashion a less reasonable and workable outcome.
May 18, 2010, 1:55 pmChristopher Cooke says:
I think this indicates that Chief Justice Roberts agrees with McCulloch v. Maryland and disagrees with Justice Thomas’ view of the Necessary and Proper Clause. Although it is too soon to say where Roberts will wind up, this does not bode well for the states’ challenge to the healthcare law, as it suggests that Roberts is not a die-hard federalist after all.
May 18, 2010, 2:15 pmJohn Herbison says:
Why else did Chief Justice Burger concur in Roe v. Wade?
May 18, 2010, 3:33 pmDilan Esper says:
Why else did Chief Justice Burger concur in Roe v. Wade?
While that’s certainly the story that is often reported and repeated, there is another possibility. Burger may have concurred precisely because he bought Blackmun’s rhetoric about the involvement of physicians and the permissibility of restrictions on later-term abortions. He didn’t, in other words, think he was voting for “abortion on demand” but thought that some abortion right was defensible for compelling circumstances.
Later in his career, he decided that Roe had brought about something along the lines of the very “abortion on demand” that he didn’t want to happen, so he changed his mind.
May 18, 2010, 7:11 pmThe Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin « Fabius Maximus says:
[...] “A Few Thoughts on the Comstock Case“, Eugene Volokh, The Volokh Conspiracy, 17 May 2010 — Red emphasis added. Excerpt: [...]
June 1, 2010, 8:02 pm