I tend to agree with Eugene that today’s Supreme Court decision in United States v. Comstock is very bad news for constitutional federalism. However, the ultimate import of the decision is hard to gauge because the majority opinion is ambiguous on at least one crucial point: whether Necessary Proper Clause cases are governed exclusively by the ultradeferential “rational basis” test, or whether courts should also weigh the presence or absence of five other factors the Court relied on in upholding the statute under which Comstock was detained.
I. The “Rational Basis” Test.
The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
As Justice Kennedy points out in his concurring opinion (where he rejects this part of the Court’s holding), this highly deferential approach is extremely problematic:
The terms “rationally related” and “rational basis” must be employed with care, particularly if either is to be used as a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must be one of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487–488 (1955). This formulation was in a case presenting a due process challenge and a challenge to a State’s exercise of its own powers, powers not confined by the principles that control the limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us.
II. Is the Real Standard Actually a Five Factor Test?
There is one aspect of the majority’s reasoning that may give hope to advocates of judicial enforcement of federalism. Near the end of the Court’s opinion, Justice Breyer lists five factors that determined the outcome:
We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. (emphasis added).
This immediately raises the question of what happens in a case where one or more of these considerations cuts the other way. Like Randy Barnett, I particularly have in mind the Obamacare individual health care mandate, which is certainly not “narrow in scope” (it forces millions of people to buy a product they may not want), does not “accomodate state interests” to the extent the Court claims the Comstock legislation does, and may lack a comparable “long history of federal involvement” (the federal government has often regulated health care, but never by forcing individuals to purchase products).
The ultimate impact of Comstock will depend on whether the key holding is the imposition of the rational basis test (which could potentially be used to uphold almost anything), or whether it is the five factor test quoted above, which is much less definitive. Only five justices signed on to the majority opinion; Justices Alito and Kennedy concurred on narrow grounds and made clear that they reject the rational basis test. If even one of the five decides that the multifactor test is the true operative standard (most likely Chief Justice Roberts), Comstock might turn out to be less dangerous that it initially seems.
III. My View of the Merits.
I think the Court got this one badly wrong, and that the challenged statute should have been invalidated. I explained my reasoning in this post, where I commented on the oral argument:
[Solicitor General Elena] 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…..
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.
The above passage criticizes Solicitor General Elena Kagan’s arguments for the government. But it applies also to the Court’s opinion, which similarly tries to link the statute to Congress’ authority to operate a criminal justice and penal system.
I also agree with most of the strong critique of the majority opinion in Justice Thomas’ dissent (joined by Justice Scalia). Scalia’s support for Thomas’ position in this case suggests that he may be having second thoughts about the very broad view of the Necessary and Proper Clause that he embraced in Gonzales v. Raich. It’s also worth noting that the dissent extensively cites co-blogger Randy Barnett’s excellent article “The Original Meaning of the Necessary and Proper Clause.”
Overall, I think this is a very unfortunate decision, particularly in so far as Chief Justice Roberts endorsed the majority opinion. I am probably less optimistic than Randy Barnett. At the same time, there is a crucial ambiguity in the Court’s reasoning that might reduce the decision’s future impact. And the coalition between Roberts and the four liberals might prove to be more fragile than it currently seems.
Dilan Esper says:
I think Chief Justice Marshall in McCulloch, not Randy Barnett, is a better authority on the original meaning of the necessary and proper clause.
More generally, I actually think the meaning of the necessary and proper clause is quite obvious and the fact that libertarians and conservatives have to explain it away is a reminder that despite what they sometimes say, the Constitution does not enact all of their policy preferences. (And I say this as someone who thinks that libertarians and conservatives have a point about the overextension of the commerce clause.)
“Necessary and proper” is quite clearly a broad grant of power to do things not enumerated but which Congress deems to be integral to accomplish things that are within its enumerated power. And Marshall was right that the Constitution leaves it up to Congress to determine necessity– there’s no strict scrutiny here, and nor should there be, unless you want to permit even more judicial activism and second-guessing of the legislature.
May 17, 2010, 3:21 pmmethodact says:
Told you so. I predicted this decision without equivocation on January 12, responding to your post “Assessing the Comstock Oral Argument” in comment-726258:
May 17, 2010, 3:29 pmMe says:
Randy Barnett’s interpretation of the Necessary and Proper Clause is perfectly consistent with the Supreme Court’s seminal ruling in McCulloch and Chief Justice Marshall’s jurisprudence.
In short, Dilan Esper is attacking a straw man.
Nothing in McCulloch permits the Necessary and Proper Clause to serve as an independent font of federal authority, rather than merely facilitating the exercise of enumerated powers Congress unquestionably possesses.
May 17, 2010, 3:30 pmDilan Esper says:
Randy Barnett’s interpretation of the Necessary and Proper Clause is perfectly consistent with the Supreme Court’s seminal ruling in McCulloch and Chief Justice Marshall’s jurisprudence.
This is based on a bad definition of “consistent”.
If you mean “Randy Barnett found ways to tweak and distort Chief Justice Marshall’s language so that he did not have to admit that he was talking out of his ass and trying to eviscerate a clause in the Constitution he hates”, then yes, he was being “consistent”.
Chief Justice Marshall, love him or hate him, interpreted N+P very broadly and with great deference to Congress. Professor Barnett, love him or hate him, wants N+P to be interpreted narrowly and for the courts to freely strike down acts of Congress that do not jibe with his libertarian, strict sense of what it might be “necessary” for the government to do.
There’s no “consistency” between those two approaches.
Nothing in McCulloch permits the Necessary and Proper Clause to serve as an independent font of federal authority
I hear conservatives say this all the time, and it is either meaningless or wrong.
It’s meaningless if all you mean is that N+P powers must be tied to some exercise of enumerated power.
But it’s wrong if what you mean is that N+P doesn’t expand the scope of Congressional power. It clearly does. That’s what Marshall said– so long as the end is within an enumerated Congressional power, Congress can choose any means that it believes will best further that end, including means that are not within any enumerated power.
May 17, 2010, 3:46 pmIlya Somin says:
Nothing in McCulloch permits the Necessary and Proper Clause to serve as an independent font of federal authority
I hear conservatives say this all the time, and it is either meaningless or wrong.
It’s meaningless if all you mean is that N+P powers must be tied to some exercise of enumerated power.
But it’s wrong if what you mean is that N+P doesn’t expand the scope of Congressional power.
It can expand the scope of congressional power without either 1) dispensing with the need for a relatively tight connection to an actually enumerated power, or 2) giving Congress virtually unconstrained authority to do whatever it wants so long as it is “rationally related” to Article I in some conceivable way.
Rather, as Madison argued at the time, the “expansion” of Congress’ power by the NP Clause is the ability to use means to implement enumerated powers that are both “necessary” (in the sense of being fairly close to essential, even if not absolutely indispensable), and “proper” (which among other things means not undercutting federalism and the doctrine of enumerated powers).
May 17, 2010, 3:52 pmChris Travers says:
Part of the problem IMO is that “necessary and proper” has been expanded to mean a lot of things which are probably out of bounds under McCulloch. I don’t think it should be subject to strict scrutiny, but rather to a balancing based on how far removed a statute is from enumerated powers, how intrusive it is, and so forth. I think that more scrutiny should apply as a law gets further removed from an enumerated power.
Indeed, when you look at physical (as opposed to legal) penumbras, they are gradients, and while it is possible to define them clearly, one cannot necessarily define them clearly through mere observation, esp, if the penumbra has a substantial radius.
This being said, I think Alito’s concurrence in Comstock is rather interesting. On the whole I guess I lean towards it, i.e. holding via narrow grounds, that the federal government can, under the necessary and proper clause, work to avoid *abrupt* end to incarceration. The problem however, then becomes a new set of questions involving both substantive and procedural due process. IOW, whether these seek to avoid abrupt ends to incarceration, or whether they seek to avoid an end to incarceration generally (which would put it way outside the N+P clause), and whether procedural due process requirements are met.
The court remanded to further hear these issues.
Furthermore I’d note that a question of release procedures of federal prisons is not a good case for challenging the bredth of the N+P clause…..
I also agree with Kennedy that the test should not be a mere test of rational basis review.
May 17, 2010, 3:58 pmDilan Esper says:
Rather, as Madison argued at the time, the “expansion” of Congress’ power by the NP Clause is the ability to use means to implement enumerated powers that are both “necessary” (in the sense of being fairly close to essential, even if not absolutely indispensable), and “proper” (which among other things means not undercutting federalism and the doctrine of enumerated powers).
Nowhere did Madison say that “necessary” meant “indispensible” or that “proper” meant “not undercutting federalism” (a phrase that is itself so vague as to be meaningless if not pernicious). Nor did Madison, or anyone else, state that they expected the courts, rather than Congress, to pass on what was “necessary” or “proper” for the legislature to do when exercising enumerated powers. Further, there’s simply no way you could do this without turning courts into unelected policymaking bureaus, and there’s no evidence that the framers intended that either.
This isn’t about framers’ intent. This is about the fact that the broad conception of “necessary and proper” endorsed by Chief Justice Marshall and consistently applied by the courts allows the federal government to do a lot of things that you and Randy Barnett wish it couldn’t do, but don’t have the votes to stop through the democratic process or by constitutional amendment.
Furthermore I’d note that a question of release procedures of federal prisons is not a good case for challenging the bredth of the N+P clause…..
Nor was a challenge to marijuana laws. Nor was a challenge to a national bank. Etc. I guess you just never find the right challenge.
May 17, 2010, 4:00 pmChris Travers says:
I personally would have decided this somewhat differently, btw. However, IANAL.
I think it is reasonable to argue that once an individual enters the federal prison system, he or she becomes subject to federal powers which are fundamentally necessary to run the prison system, as FUNDAMENTALLY required to enforce valid federal laws. In these cases, I think one could argue that, as regards federal prisoners, the federal government takes on a variety of powers ordinarily reserved for the states, including a general police power (necessary to the orderly operation of prisons) and a parens patriae power (again necessary to the orderly operation of prisons). In no other case can the federal government substitute it’s own consent for a medical procedure for that of a patient, or enforce general prohibitions against violent behavior.
I would argue actually that the federal government has broad authority over federal prisoners which would otherwise not be acceptable. I think therefore it’s clearly necessary and proper, provided due process and other concerns are met, for the government to address the means and timing of release of federal prisoners.
May 17, 2010, 4:06 pmDilan Esper says:
Chris:
That’s a reasonable argument, and is close to the one made in the concurrence. But the prior court precedents– Raich, McCulloch, etc.– suggest you don’t need to make that narrow argument, because the N+P clause confers a broad power upon Congress to choose among different means that it believes may be necessary to achieve a result that is permitted by the Constitution.
So unless there’s some great desire to overturn 200 years of caselaw, the simplest route to take is the one taken by the majority.
May 17, 2010, 4:23 pmChris Travers says:
But the courts have to do that to some extent. Otherwise Congress can determine that anything is necessary and proper and do it. I personally think that Congress has overstepped this in some important ways. The Gun-free school zone act (as amended following Lopez) is a good example of what I think goes beyond “necessary and proper,” for example. For example that act does not seek to regulate commerce in any way.
To say the courts have to stay out of it is to say the N+P clause is a “good idea” clause which no court has ever accepted.
May 17, 2010, 4:28 pmDesiderius says:
Another case where Left versus Right is not so clear any more.
May 17, 2010, 4:30 pmUrso says:
A bit tautological, isn’t it? The Constitution permits Congress to do anything that is permitted by the Constitution?
I disagree with your analysis with respect to McCulloch. Whether you like or dislike the majority opinion, it’s not a mere application of McCulloch; it’s a complete rewriting.
Out of what, laziness? Or just cowardice? I mean, the simplest route is simply to deny writs.
May 17, 2010, 4:34 pmChris Travers says:
I am not entirely sure of that. McCulloch articulates a several part test as to whether an act is necessary and proper or not. And while one cannot argue with the basic premise that Congress has some freedom to choose the means to carry out enumerated powers, that freedom cannot be absolute. Otherwise Lopez and Morrison would have come out very differently.
May 17, 2010, 4:39 pmChris Travers says:
Morrison seems like a good challenge…..
May 17, 2010, 4:41 pmNunzio says:
Urso,
McCullough’s “plainly adapted” gives Congress wide latitude, which is why Roberts signed on to the opinion here. Kennedy also agrees, with the caveat that he thinks the Court’s “rational basis” phrase could water down McCullough a bit too much in a future case.
The more conservative 5 could strike down a future law (and all would strike down Lopez again) applying McCullough.
May 17, 2010, 4:41 pmUrso says:
I certainly don’t think the N+P clause requires literal, absolute necessity. Say I’m authorized to use any means that are necessary and proper to get to work. In order for me to get to work, it wasn’t necessary for me to drive a car. It wasn’t necessary for me to take a bus. Or ride a bike. Or walk. But I had to do one of them! So I’d argue any of those equally acceptable choices are necessary and proper.
As I understand today’s case, it says “since it is N&P for you to take your car to work, it’s also N&P for you to take the same car to a bar afterwards.” Now my wife (who enumerates my powers) would certainly disagree with that extension.
May 17, 2010, 4:52 pmMAM says:
Just read the opinion and believe the Court was correct in the result. Maybe I’m wrong, but the enumerated powers provisions were not at issue as the prisoners were already in the custody of the federal government. I didn’t gather that anyone disputed the initial imprisonment. If so, the question of enumerated powers was not at issue. What was at issue was the Necessary and Proper Clause.
I’m not a big fan of a 5-part test, but, unless one was willing to argue that the federal government could not have jailed the prisoners, the terms of release seem part and parcel with the ability to imprison.
I’m not a Constitutional expert, just a lowly transactional lawyer, so I may be missing the forest for the trees. It’s been almost 20 years since my only Con Law class. I’d like to read more from those who disagree with the majority.
May 17, 2010, 4:54 pmDilan Esper says:
I am not entirely sure of that. McCulloch articulates a several part test as to whether an act is necessary and proper or not. And while one cannot argue with the basic premise that Congress has some freedom to choose the means to carry out enumerated powers, that freedom cannot be absolute. Otherwise Lopez and Morrison would have come out very differently.
I think the best way to read Lopez and Morrison on this score is that where the entire “interstate commerce” hook is sufficiently superficial (e.g., regulations of non-economic activity), “necessary and proper” cannot save the statute. But where the underlying regulation bears a real connection to commerce, “necessary and proper” is in play with respect to any parts of the scheme that do not themselves constitute regulations of commerce.
One other possibility with Lopez and Morrison, of course, is that they represent an attempt to impose limitations on the exercise of federal powers that has now been largely abandoned after Raich.
May 17, 2010, 5:15 pmChris Travers says:
But here you have a problem (why I would accept a narrow argument more than an expansive one), which is that the federal government does not have an enumerated power regarding protecting us from sex offenders. The goal of the regulation cannot be to regulate sex offenders or to keep them imprisoned indefinitely. Furthermore, it isn’t possible to tie this to an individual enumerated power. This has to fall under some vague “necessary and proper” analysis relating to all of the government’s enumerated powers if it is to stand at all.
Consequently it isn’t clear to me at what point the link could become too attenuated to enumerated powers, to be applicable.
I think it’s best to limit (narrow) the scope of the ruling to federal prisoners but increase (broaden) the scope of the powers as relates to federal prisoners.
As for Morrison, if the Supreme Court heard a challenge to the revised Gun Free School Zone Act (with the added requirement that the firearm be one that has ever crossed state lines in interstate commerce), would the Supreme Court strike that law down as modified? Or are the magic words enough to save it? I don’t know….. My reading of your comment suggests you think they would, however.
May 17, 2010, 5:24 pmTim says:
I am legally naive, but why can’t we simply lengthen the sentences of sexual criminals? If they are a lifetime threat, why not give them lifetime sentences? The most heinous crimes deserves the worse punishment.
May 17, 2010, 5:33 pmChris Travers says:
Just a response to this:
I think that this has to come down to substantive due process and procedural due process as well.
If the goal (as articulated by the court here) is to prevent an abrupt end to incarceration, and thus provide some therapy for individuals to help them avoid violating the law, then I think it’s well within what’s necessary and proper…. If, OTOH, it is to keep dangerous criminals off the street then it’s entirely outside that clause.
The court today accepted the first one, and that’s a very different issue to what you argue. Consequently I’d suggest that your reasoning only holds if the purpose is continued imprisonment rather than therapy as a condition of release.
May 17, 2010, 5:50 pmDilan Esper says:
But here you have a problem (why I would accept a narrow argument more than an expansive one), which is that the federal government does not have an enumerated power regarding protecting us from sex offenders. The goal of the regulation cannot be to regulate sex offenders or to keep them imprisoned indefinitely. Furthermore, it isn’t possible to tie this to an individual enumerated power. This has to fall under some vague “necessary and proper” analysis relating to all of the government’s enumerated powers if it is to stand at all.
I think this gets it wrong, but it gets it wrong in an interesting way. The constitutionality of this scheme cannot be viewed solely through the lens of any particular statutes which might go beyond enumerated powers. Rather, the question, in the first instance, has to be along the lines of “if the federal government enacts this statute with respect to sex offenders who commit their offenses on federal land, indian reservations, or military bases, is it constitutional?”. In other words, in that case, would it be necessary and proper to the unquestionably valid exercise of federal powers to create certain types of criminal offenses to do this?
If the answer to that question is “yes”, it doesn’t matter that in particular instances the scheme might not be connected to something within Congressional powers.
May 17, 2010, 5:51 pmInstapundit » Blog Archive » “VERY BAD NEWS FOR CONSTITUTIONAL FEDERALISM,” says Ilya Somin. And though “the statute involved he… says:
[...] “VERY 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, “the case has little or no import for the constitutional challenges to the individual health insurance mandate,” says Randy Barnette. [...]
May 17, 2010, 5:54 pmDilan Esper says:
As for Morrison, if the Supreme Court heard a challenge to the revised Gun Free School Zone Act (with the added requirement that the firearm be one that has ever crossed state lines in interstate commerce), would the Supreme Court strike that law down as modified? Or are the magic words enough to save it? I don’t know….. My reading of your comment suggests you think they would, however.
I don’t know if they would or not. But I suspect that even if the Supreme Court would invalidate the statute, it would do so on the same narrow grounds as Morrison and Lopez, i.e., that the statute did not regulate any economic activity and thus was outside the commerce (and N+P) powers.
In reality, Morrison and Lopez got Randy Barnett’s and Hans Bader’s hopes up, but the doctrine doesn’t seem to be going anywhere. And they certainly are not going to limit the necessary and proper clause in any way that gets them into the business of judging the necessity of legislation enacted democratically by duly-elected Congressional majorities.
May 17, 2010, 5:55 pmChris Travers says:
Of course it’d be the same narrow grounds.
For the HCR lawsuits, however, I wish, just for once, every justice channelling the mind of Sandra O’Connor….
BTW, despite my hopes, my prediction is that the court is more likely to invalidate the medicaid expansions (citing South Dakota) than to invalidate the individual mandate at least in the main case. The Virginia suit is more interesting there because of how state and federal laws would intersect in this specific bill. Smart money is on Congress upholding the law. I just don’t think they have to overturn any precedents in order to diverge from that course.
May 17, 2010, 6:01 pmUrso says:
Forget McColluch, you’re ready to take on Marbury! I suppose if you’re going to swing, swing for the fences.
May 17, 2010, 6:03 pmChris Travers says:
I’m not sure about that.
For example, it’s a federal capital crime to commit any homicide at an airport serving interstate or international flights. Yet, if Congress passed a law making homicide a federal capital crime generally, that would be beyond what’s necessary and proper, or am I missing something?
Similarly the Federal government can pass age of consent laws regarding US citizens travelling abroad (and presumably to Indian reservations), but cannot pass them regarding the states themselves. I don’t know if they could pass age of consent laws regarding federal property or not but wouldn’t expect this to be an enumerated powers issue per se.
May 17, 2010, 6:07 pmChris Travers says:
Dilan: I may be misunderstanding you though/.
May 17, 2010, 6:13 pmBob says:
This is about as clear an example of dragging the pivot foot as can be had. From the fact that (1) the USA legitimately has prisoners for a period of time, and (2) those who hold prisoners have a duty to take care of them, they conclude (3) the person’s status as a prisoner at a given time makes hir fit to be kept as a prisoner in some circumstances by whomever’s keeping hir, ad infinitum.
It’s like saying that because (1) someone who rents an apt. has the right to put furniture there for a time, and (2) someone who has furniture in an apt. has the right to take furniture out of that apt., that (3) that person has the right to take away the furniture of any subsequent occupiers of that apt.
May 17, 2010, 6:15 pmAlan says:
I remember some time after Roberts was confirmed, he spoke at the Reagan Library, where he said that in his view the principal consideration in interpreting the Constitution should be to give effect to the intent of the Framers.
To quote Delroy Lindo in the film Congo: “Liar, liar, your pants on fire.”
If Roberts had simply concurred in the judgment, as Kennedy and Alito did, that would have been bad enough. But joining the Breyer opinion, thereby making it a majority opinion? There aren’t expletives strong enough for this. What the heck is left of Lopez and Morrison now?
May 17, 2010, 6:16 pmjrose says:
Did the majority argue a statute need only be N&P to support a law that itself was justified by the N&P clause, whereas the concurrences and the dissent claim each statute must be N&P in support of an enumerated power?
I think the majority argued there is no distinction between a permissible N&P statute and one that does not impermissibly encroach on state sovereignty, whereas at least Kennedy says these are two separate questions.
I don’t think Scalia is having any second thoughts on his Raich concurrence. His belief in Raich that the N&P clause extends beyond economic activity where it is needed to insure that a regulation of an enumerated power isn’t undercut is consistent with his dissent here.
Roberts joining the majority is the big story in my view. This should come very close to ending the health insurance mandate debate. Even Randy concedes his only hope is in the “proper” portion of N&P. In contrast to Randy’s prior arguments that the Court would have to extend existing doctrine to find the mandate constitutional, it now seems he is arguing it would have to extend existing doctrine in order to strike down the mandate.
May 17, 2010, 6:16 pmNunzio says:
This case does blur the line of whether the provision at issue (indefinite detention of sexually dangerous persons who are federal prisoners whose sentence is finished)is necessary and proper to regulating interstate commerce (an enumerated federal power) or whether it is necessary and proper to running a federal penal system, which itself is necessary and proper to punishing offenders of federal crimes that either (1) directly regulate interstate commerce or (2) are a necessary and proper means of regulating interstate commerce.
Can a law be unconstitutional if it is a necessary and proper means of making effective another law that is a necessary and proper means of regulating interstate commerce?
May 17, 2010, 6:21 pmAlan says:
“Scalia’s support for Thomas’ position in this case suggests that he may be having second thoughts about the very broad view of the Necessary and Proper Clause that he embraced in Gonzales v. Raich.”
And I have to wonder, what took him so long? If I remember correctly, Scalia’s concurrence-in-the-judgment in Raich cited blatantly anti-originalist authorities, such Wickard v. Filburn and Justice Harlan’s dissent from the E. C. Knight decision. How in the world or out of it could any originalist–especially an originalist very well-versed in constitutional history and too damn old to be naive about these matters–have taken the position that Scalia took in Raich?
May 17, 2010, 6:23 pmDilan Esper says:
Forget McColluch, you’re ready to take on Marbury! I suppose if you’re going to swing, swing for the fences.
Marbury doesn’t preclude rational basis tests and deference to Congress. Indeed, one can argue that they are an integral part of judicial review.
May 17, 2010, 6:24 pmGuy says:
Originalists aren’t allowed to cite precedent as persuasive authority? That’s an interesting theory of originalism.
May 17, 2010, 6:25 pmDilan Esper says:
For example, it’s a federal capital crime to commit any homicide at an airport serving interstate or international flights. Yet, if Congress passed a law making homicide a federal capital crime generally, that would be beyond what’s necessary and proper, or am I missing something?
You are. The thing that is necessary and proper is the post-sentence confinement scheme. What is it necessary and proper to? Some system of criminal laws passed by Congress pursuant to an enumerated power.
Since the government has SOME power to enact criminal laws, if the confinement scheme is necessary and proper with respect to the properly exercised powers, it is constitutional. If particular criminal law exceeds enumerated powers, it can be struck down, but that doesn’t invalidate the scheme for post-sentence confinement, which is at least constitutional with respect to any properly enacted Congressional criminal statutes.
May 17, 2010, 6:29 pmChris Travers says:
I have never been very much impressed with Randy’s arguments on this matter. The arguments of folks like David Kopel, for example, have been clearer and more compelling.
May 17, 2010, 6:29 pmsetnaffa says:
It makes sense to me, though IANAL and I didn’t spend the night at a Holiday Inn Express.
Our government is full of people of every political party who do not believe as our Founding Fathers did.
They do not fear God, believing that they themselves are the only “diety” to satisfy.
They do not see themselves as “Public Servants”, they see themselves as “enlightened” and seek to control us so they can remake us in their own image…
Romans 1:18-32 describes them and our future unless we repent…
May 17, 2010, 6:39 pmChris Travers says:
That much is clear enough.
I think we’re converging here. However, where I hesitate to apply this is in the question of the sort of as-applied challenges this might raise. For example, if an individual is incarcerated for wire fraud, and this is entirely unrelated to his incarceration, then I am not sure you can say that post-conviction confinement because the individual is “dangerous” (for reasons unrelated to proper law enforcement) is necessary and proper. To some extent this is what I think the dissent was saying and I agree with them if we try to force the law into this sort of analysis.
I disagree with the dissent for other reasons because I think that while individuals are in federal custody, the government has a responsibility to care for the individual which fundamentally requires taking on additional (common law) powers. If the federal government is ruled not to have such powers over the prisoner, then the whole federal prison system falls apart. These powers are necessary even under a very narrow view of necessary (not that I am saying that such a standard is required, just that the standard is not an issue), and are sweeping in scope even though they are limited by other guarantees (habeas, due process, etc).
In other words, I am arguing that the operation of federal prison systems is quite necessary and proper generally, and that Congress has tremendous freedom in prescribing rules for this. However, I am not sure how far one can generalize from that case. Even under my preferred framework for dealing with necessary and proper questions, this ranks high on unquestionably necessary and proper (aside from other problems mentioned below) uses of federal powers.
I see a number of problems with the law in question but these are almost exclusively due process issues (both procedural and substantive), the possibility of cruel and unusual punishment being inflicted and the like. To the extent the matter is not “necessary and proper” it will be a matter of the due process issues, not the enumerated powers issues.
May 17, 2010, 6:48 pmAlan says:
Oh, well, if you have any shred of evidence that Scalia was not expressing his own view of the reach of the Necessary and Proper Clause, but was instead applying nonoriginalist precedents for the sake of stare decisis, I’d love to see that. That would be interesting.
May 17, 2010, 6:54 pmDilan Esper says:
They do not fear God, believing that they themselves are the only “diety” to satisfy.
I don’t think people should “fear” God anymore than they fear ghosts or the Bogeyman.
May 17, 2010, 6:58 pmWhitehall says:
Let us PRAY that Scalia is having second thoughts about his vote in Raich!
That one decision of his significantly lowered my opinion of the man. In fact, it supportted his detractors on the Left who see him as a man who will reason TO an outcome, here, against marijuana use.
One can make a sound argument against medical marijuana but the deciders, the people with the power to make the call, are the voters of California.
May 17, 2010, 7:00 pmChris Travers says:
The nice thing about precedents is that there are so many to choose from!
May 17, 2010, 7:00 pmChris Travers says:
Isn’t that something that would be saved for court filings? ;-)
May 17, 2010, 7:03 pmPaul A'Barge says:
Lots of folks are rending their clothing and gnashing their teeth and I can understand.
On the other hand, somewhere out there some little girl is going to sleep the entire night tonight in her bed, safely … while some sex pervert predator rots in a Federal prison.
All in all, not a bad day for Justice.
You remember Justice, don’t you?
It’s what all this used to be about.
May 17, 2010, 7:05 pmAlan says:
He might be a better authority if he didn’t use such transparently dishonest reasoning in McCulloch.
Marshall reasoned that because the Constitution uses the phrase “absolutely necessary,” and because “absolutely” shouldn’t be viewed as superfluous (even though it frequently is, and even though the Constitution is teeming with superfluous words), it follows that “necessary” doesn’t mean absolutely necessary. Okay, but the Constitution also uses the phrase “necessary and expedient,” which should, on Marshall’s logic, mean, that “necessary” doesn’t merely mean “expedient”–yet that’s just how Marshall interprets the word “necessary.”
Moreover, if, as Marshall reasons, “necessary” means “expedient,” then obviously the constitutional phrase “absolutely necessary” means “absolutely expedient”–but of course that’s plainly not what it means, and even Marshall reasons that “absolutely necessary” means “absolutely necessary.” So his own argument is self-contradictory.
Finally, even if “necesary” doesn’t mean “absolutely necessary,” it’s a gigantic non sequitur to say that it must mean something as mild as “convenient.” Obviously, there aren’t just two possibilities–”absolutely necessary” and “whatever helps.” Marshall completely ignores this in McCulloch.
Some authority this is–Marshall uses a ridiculous false dichotomy, completely ignores the contradiction in his own argument, and interprets the word “necessary” so broadly that just about anything qualifies as “necessary.” (Maybe absolutely anything: if I recall correctly, Marshall also says in that opinion that whether or not what Congress has done will actually serve its goal is a judgment for Congress to make and for the courts to accept.)
No wonder Marshall felt the need to step back and slip in another completely unprincipled and nontextual point of law–the pretext principle–to limit the damage caused by his opinion. Without the pretext principle, McCulloch would have made the Necessary and Proper Clause a completely open-ended grant of power for Congress to do anything it pleased.
May 17, 2010, 7:08 pmAlan says:
Heh. Good one.
May 17, 2010, 7:09 pmDilan Esper says:
No wonder Marshall felt the need to step back and slip in another completely unprincipled and nontextual point of law–the pretext principle–to limit the damage caused by his opinion. Without the pretext principle, McCulloch would have made the Necessary and Proper Clause a completely open-ended grant of power for Congress to do anything it pleased.
Not true. A rational relationship isn’t no relationship at all. For instance, if Congress enacted findings that in order for the mint to coin money (an enumerated power), it is necessary to ban guns near schools, that would not meet Marshall’s test, with or without a pretext rule. There’s simply no relationship between coining money and banning guns near schools.
Bear in mind this whole argument that we are having involves cases– especially health care reform– where the relationship is not only one that Congress could rationally find, but is in fact very clear. Nobody I am aware of disputes that there is a relationship between banning preexisting conditions and an individual mandate. What is really happening is something else– some folks want the courts to strike down laws even when there IS a relationship, on the grounds that the relationship isn’t one of strict necessity but rather Congress chose one of several options available. In other words, they want strict scrutiny of all congressional legislation.
And Marshall is right that this is clearly inconsistent with the language of the necessary and proper clause.
May 17, 2010, 7:20 pmChris Travers says:
Regarding McCulloch, I think the following is generally missed:
Maybe I am reading Marshall wrong in his above words, but this seems to be to suggest that there are three parts to whether the N+P clause is satisfied:
1) The end sought MUST be in line with an enumerated power,
2) The means must be “plainly adapted” to that end, and
3) The means must be consistent with the letter and spirit of the Constitution and not prohibited.
That doesn’t seem like the level of deference to Congress that Dilan Esper is ensorsing, so what am I missing?
May 17, 2010, 7:39 pmAlan says:
Breyer could easily imagine one, as you can see from his dissent in the Lopez case. As one suggestion (but a smarter person, like Breyer, could come with a more intelligent suggestion than I can imagine), the power to coin money and regulate its value surely includes the power to prohibit activity that interferes with congressional regulation of the value of money, and Congress could rationally conclude that one way of doing that would be to prohibit activity that causes inflation, and Congress could rationally conclude that crime causes inflation because of its adverse effects on the economy.
Straw man. The relationship here between the federal statute and any enumerated power is so attenuated that it’s no different in principle from regulating family law as a means of carrying out the power to regulate interstate commerce, which plainly is not a fair application of the Constitution. You don’t have to favor “strict scrutiny” of congressional regulation to realize that that’s not consistent with any meaningful system of enumerated powers.
I find it amusing that you say that what I’m arguing is “clearly inconsistent with the language of the necessary and proper clause.” You and Marshall interpret “necessary” to mean “whatever helps, no matter how indirectly,” and that is what’s really clearly inconsistent with the language of the provision.
Marshall was clearly wrong, to the point of dishonesty, for the reasons I gave, which you didn’t bother disputing.
May 17, 2010, 7:42 pmChris Travers says:
I guess what I am saying is that if we follow McCulloch, then we may have to look at the desired ends. If it is to keep sex offenders locked up, then it is plainly inconsistent with McCulloch. If it is to ease transition into society, then it is plainly consistent. The majority held the latter, while the dissent seemed to assume the former.
Where’s my divining rod?
May 17, 2010, 7:47 pmDilan Esper says:
That doesn’t seem like the level of deference to Congress that Dilan Esper is ensorsing, so what am I missing?
I think you are actually adding content that it isn’t there.
1. “Legitimate end” = some goal Congress is permitted to address under an enumerated power.
2. “Appropriate means” = any method of achieving the goal that Congress deems to be proper.
3. “Plainly adapted to that end” = there is a relationship between means and end.
4. “Not prohibited” = not specifically barred by some provision in the Constitution (such as a bill of attainder or a law abridging the freedom of speech”.
That’s all there is, and it’s appropriately deferential.
May 17, 2010, 7:55 pmChris Travers says:
I think there are two things:
1) Is the relationship sufficient? Where does it become too attentuated? I mean, can Congress legislate national building codes? Certainly construction affects interstate commerce…..
2) How do I the court to rule that my vision of the USA is the One Correct Vision?
The second is something that people of both sides tend to like to push for, but I think there are readings of federalism cases which admit of an honest grappling with the first issue. As I say, I would suggest that “necessary and proper” should involve a balancing test, weighing the government’s interest in line with enumerated powers and the necessity to enact such a policy against the distance from the affected enumerated powers, the transgression on long-held state interests, etc.
For example, I strongly object to the law at issue here on Constitutional grounds. I think that once a sentence is done, the government has no business holding a person. However, my objection is based on due process grounds rather than enumerated powers issues. I can’t see a reason to object to this via enumerated powers UNLESS the whole reason is simply to keep “dangerous” people off the streets (not an enumerated power). Having read the briefs, etc. I wasn’t completely convinced that was the case.
May 17, 2010, 7:56 pmDilan Esper says:
The relationship here between the federal statute and any enumerated power is so attenuated that it’s no different in principle from regulating family law as a means of carrying out the power to regulate interstate commerce, which plainly is not a fair application of the Constitution
Do you seriously believe that the relationship between enacting criminal statutes and providing for post-sentence confinement is “attenuated”, or the relationship between a preexisting condition regulation and a mandate is “attenuated”?
Not only are those relationships not attenuated, they are pretty clear. You’d basically have to get to strict scrutiny before you’d stand a shot of finding them not “necessary”.
May 17, 2010, 7:58 pmAlan says:
Funny–that part of McCulloch has been mostly ignored. Can you imagine how different our Commerce Clause jurisprudence would be if the courts actually applied the pretext principle from McCulloch? Imagine the Supreme Court in the role of Safari Al, hacking through a jungle of economic legislation.
Obviously, I’m no good at using metaphors, but you get the idea.
May 17, 2010, 8:00 pmMark Field says:
By the words “consistent with the letter and spirit of the constitution”, Marshall only meant that the law could not violate another provision (e.g., the First Amendment).
May 17, 2010, 8:01 pmDilan Esper says:
For example, I strongly object to the law at issue here on Constitutional grounds. I think that once a sentence is done, the government has no business holding a person. However, my objection is based on due process grounds rather than enumerated powers issues. I can’t see a reason to object to this via enumerated powers UNLESS the whole reason is simply to keep “dangerous” people off the streets (not an enumerated power).
Let’s say Congress passes a law that prohibits rape on a military base. And, to keep “dangerous” offenders from coming back onto military bases when their sentence concludes and reoffending, Congress also legislates a post-sentence confinement scheme.
How can that possibly exceed the scope of the “necessary and proper” clause? One of the legitimate enumerated powers of Congress is to enact criminal statutes to ensure the safety of the public on military bases.
This can be premised solely on “dangerousness” and it would still be constitutional as a matter of enumerated powers.
May 17, 2010, 8:01 pmAlan says:
I’m sorry, but which one of those things is an enumerated power? I was talking about an attenuated relationship between a federal statute and an enumerated power.
Look, I know you have a right not to respond to my arguments, but if you’re not going to respond to them, then please don’t pretend that you are.
See above.
For the heck of it, I’ll also repeat that Marshall’s reasoning in that case is clearly disingenuous. It proves too much and ignores complications inherent in its logic.
May 17, 2010, 8:04 pmChris Travers says:
I would be a little stricter on 2 and 3 than you are and I think existing jurisprudence is in line with my reading. I think “plainly” assumes “obviously” and suggests that the courts should look at obvious connections only. I also think that I would suggest that “appropriate” means are only appropriate if they are in line with the letter and spirit of the Constitution.
So for example, I would argue that national building codes would violate the test quite spectacularly even though construction is clearly an economic activity.
1) Regulating safety of buildings is not an enumerated power. I don’t think it’s even in a penumbra of an enumerated power. Even if Congress argued that better building codes would conserve natural resources, freeing up more resources for other industries, that would still not be compelling. This is true IMO even if construction has a substantial impact on interstate commerce.
2) Building codes are traditionally matters of police and administrative powers of the states, not the federal government. The means here are not compelling because they step on areas traditionally assigned to the states.
3) Since 1-2 aren’t met, we don’t need to address the means/end relationship.
4) Nothing prohibits this except the 10th Amendment, perhaps.
Again, no matter what framework I adopt, the enumerated powers challenge fails in my mind in Comstock (but I think due process concerns are a very different matter).
May 17, 2010, 8:05 pmDilan Esper says:
I’m sorry, but which one of those things is an enumerated power? I was talking about an attenuated relationship between a federal statute and an enumerated power.
That’s not how it works. Congress decides to EXERCISE an enumerated power. In EXERCISING it, Congress can pass whatever laws are necessary and proper to the goal of the legislation. That’s what that passage from McCulloch that is quoted in the thread means.
For instance, in Raich, Congress decided to exercise its commerce clause powers, which the Court found that it had, to enact a national ban on marijuana possession. A ban on personal growing and possession for medicinal use, even if it did not constitute a form of interstate commerce, was found to be necessary to the end of ensuring a complete and effective ban on marijuana. Notice the chain of reasoning– the relationship is between the means and the end, not between the means and the power.
May 17, 2010, 8:18 pmRoger the Shrubber says:
I think that word cries out for a hyphen. I keep reading “trade” in the middle of it. Admittedly, that could just be a quirk on my part.
May 17, 2010, 8:52 pmAlan says:
No, the “end” is the exercise of the enumerated power itself. The Necessary and Proper Clause says that Congress has the power to make all laws necessary and proper to carry out an enumerated power. You’re now arguing that Congress can do whatever is “necessary” (by which you mean “has any relation to, no matter how incredibly convoluted and indirect”) to do something that isn’t even an enumerated power. That is not what the Necessary and Proper Clause says.
Even if you were right, your argument shows why McCulloch is so problematic as constitutional interpretation. There is no way that anyone could fairly read the Constitution to give to Congress the amount of power that Marshall’s approach, if taken seriously and applied consistently, gives Congress. Any relation, however indirect, between a federal statute and a particular goal Congress has in mind–a goal that in itself (you say) can be some distance removed from an actual enumerated power–is enough to give Congress authority to act. And (if I remember correctly) McCulloch also says that whether or not the statute actually does serve that goal is a question that the courts mustn’t concern themselves with. All of that put together, if applied coherently, would lead to the conclusion that Congress has a police power, and that only the Bill of Rights and other specific limitations on federal authority can limit what Congress may do. (Which is why Marshall had to stick in the pretext principle to conceal the radicalism, and limit the effect, of what he had done. The pretext principle has no basis in the Constitution, just like Marshall’s libertine reading of the word “necessary.” But without the pretext principle, McCulloch would have given Congress a police power.) That’s obviously a pretty long way off from what the Founders intended.
When Prohibition was passed, was it necessary to amend the Constitution, or could Prohibition simply have been passed by statute, as an exercise of Congress’s power to regulate commerce among the states? It definitely would’ve passed muster under McCulloch, if not for the pretext principle. And even then, since the pretext principle is mostly ignored, the current judicial mindset would uphold Prohibition anyway. Proof enough, one would think, that the case law in this area is just one big dirty trick being played on the American people.
May 17, 2010, 8:53 pmJason Arvak says:
Mr. Esper,
I’m curious about the implications of your ultra-deferential ideas about the Necessary and Proper Clause with regard to health care legislation. I wonder if you would answer a direct question: If Congress “chose” as “one of several options” for (1) stimulating the economy and (2) bailing out General Motors to mandate that I and everyone else who makes more than $50000 per household annually purchase a new GM vehicle, would you find that to be permissible? If so, please explain why. If not, please explain how you’re not completely contradicting yourself.
May 17, 2010, 8:57 pmDilan Esper says:
No, the “end” is the exercise of the enumerated power itself. The Necessary and Proper Clause says that Congress has the power to make all laws necessary and proper to carry out an enumerated power. You’re now arguing that Congress can do whatever is “necessary” (by which you mean “has any relation to, no matter how incredibly convoluted and indirect”) to do something that isn’t even an enumerated power.
This is pointless (your mind is made up), but you are making a fundamental error. NOTHING is “necessary and proper” to regulate commerce, because Congress could regulate commerce in a million different ways or none at all. The reason for a necessary and proper clause is to solve the following problem:
1. Congress wants to exercise some enumerated power, such as the commerce clause, to do something that it is legtimately permitted to do under that power, like banning preexisting condition exclusions from health insurance policies.
2. In order to accomplish that legitimate, constitutional goal, Congress believes it prudent, or necessary, or whatever [insert your own standard here] to do something that is not itself permitted under an enumerated power, like imposing an individual mandate if the commerce clause does not extend to inactivity.
3. The necessary and proper clause says that in at least some instances, Congress may do that.
It’s necessary and proper to some law or scheme that is itself a constitutional exercise of an enumerated power. Not necessary and proper to the power itself, because that would be an incomprehensible abstraction. What’s “necessary and proper” to regulating commerce generally?
And (if I remember correctly) McCulloch also says that whether or not the statute actually does serve that goal is a question that the courts mustn’t concern themselves with.
Other than in cases of strict or intermediate scrutiny, this is generally true of all constitutional tests. And the reason is because if you start allowing the courts determine if the laws are effective, you’ve essentially created an unelected super-legislature.
When Prohibition was passed, was it necessary to amend the Constitution, or could Prohibition simply have been passed by statute, as an exercise of Congress’s power to regulate commerce among the states?
Under Raich, clearly, you would not need a constitutional amendment. But Raich was not the law when the 18th Amendment was adopted.
May 17, 2010, 9:01 pmDilan Esper says:
I’m curious about the implications of your ultra-deferential ideas about the Necessary and Proper Clause with regard to health care legislation. I wonder if you would answer a direct question: If Congress “chose” as “one of several options” for (1) stimulating the economy and (2) bailing out General Motors to mandate that I and everyone else who makes more than $50000 per household annually purchase a new GM vehicle, would you find that to be permissible? If so, please explain why.
It’s constitutional, because nothing in the Constitution prohibits Congress from enacting stupid, rent-seeking legislation. Cf. Scalia’s citation of “Our Perfect Constitution” in Herrera v. Collins.
May 17, 2010, 9:02 pmBob says:
But that’s exactly why “necessary” needs to be considered seriously. You want to keep a list of people and not allow them on military bases? Sure. But to keep them off military bases, surely it’s not necessary to confine them.
May 17, 2010, 9:52 pmDilan Esper says:
But that’s exactly why “necessary” needs to be considered seriously. You want to keep a list of people and not allow them on military bases? Sure. But to keep them off military bases, surely it’s not necessary to confine them.
That’s silly, though. There’s no reason, other than libertarian desire to limit the powers of the government, to say that the only choice Congress can make is to keep the list.
And since the Constitution does not enact Mr. Herbert Spencer’s Social Statics, it’s up to Congress to choose what it wants to do.
May 17, 2010, 10:10 pmChris Travers says:
I would argue that it’s not Constitutional since it’s aim is not to regulate interstate commerce but rather just to help out a private person’s finances, which is not an enumerated power.
May 17, 2010, 10:51 pmChris Travers says:
It seems to me that this is why some sort of a penumbra analysis has to be used. Part of the problem is that although the grant of regulation of interstate commerce was supposed to be a limited one, virtually anything can be argued to be necessary and proper to the regulation of interstate commerce. On the other extreme we have the argument that no law can ever be necessary and proper. There has to be a middle ground if we are to have a workable federalist system.
I don’t think that justices do this consciously but I think there are essentially three variables at play which determine what level of scrutiny a necessary and proper claim has. These are:
1) How far removed a regulation is from it’s enumerated power motivation.
2) How disruptive it would be to the overall regulatory effort to strike such a law down (I suspect some additional deference would be given to older laws as well).
3) How much the law impinges on areas which have been long-standing state matters, or personal rights.
So for example, the federal government can regulate, say, meat that’s sold across state lines. If the government wants to regulate production of meat products to be sold across state lines, that’s well within this sort of analysis.
However, if the federal government wanted to pass a law stating that a horse farmer couldn’t kill a horse for food for his family, that would be a harder call (yes, I’m aware of Wickard but this is highly differentiable). I also don’t think the question of whether the horse has ever crossed a state boundary would save such a law either, though Congress could clearly ban sale of horses across state lines for food. Unlike in Wickard, horsemeat’s not a major market, and unlike in Raich, there’s not a major black market for it.
I don’t think the N+P clause allows for mandates to purchase cars, federal building codes, or national speed limits (or drinking ages) even though any one of these is clearly rationally related to interstate commerce. I recognize that, read broadly, existing, valid precedent could be easily read to allow all these things. However, I think that when you look at the case law, judges get nervous about allowing the federal government arbitrary power to regulate any activity which has traditionally been a state matter. These areas do evolve over time, however, and of course, spending power is a different issue.
May 17, 2010, 11:11 pmBasil says:
Could it be that the 10th Amendment modified and limited the Necessary and Proper clause? That seems to me to have been one of the intentions of the anti-federalists who pushed through the 10th Amendment. The enumerated powers language of the 10th Amendments necessarily conflicts with the broad reading of Necessary and Proper. As the later enacted, the 10th Amendment should control any conflict. Any takers?
May 17, 2010, 11:27 pmFyzycyst says:
WARNING! Monitor your comments carefully! Since, due to the byzantine Federal code, anyone can be found guilty of some sort of Federal crime AND once found guilty, you could be jailed for your whole life because the Feds have determined that your THOUGHTS may someday pose a danger. Do not think for a second that this is about recidivism in sex offenders (who, due to their extremely disturbed mode of thought are likely to repeat offend) — the reasoning behind this decision leaves wide open the Federal Gov’t deciding that expression any idea they deem offensive is indication of potential future “dangerous” behavior and you can therefore be held your whole life.
Seriously, throw out one of those dang curlieque light bulbs in your regular trash, and then espouse anti-global warming views. Your statement of such views could easily be taken as indication that you’ll be a repeat offender of such a horrific violation of Federal environmental law. You therefore deserve to be locked away indefinitely w/o recourse, or due process.
This is so appalling, and so in violation of the plain meaning of the Constitution, that I despair that any of the Supremes actually understands the Constitution and the intent of the Founders AND is willing to act correctly upon that understanding.
(Hint to the Supremes: by ‘equal protection under the law’, the Feds must be prepared to hold all drug dealers, murderers, and embezzlers indefinitely as well. Jus’ sayin’.)
May 17, 2010, 11:35 pmSuperSkeptic says:
But that’s just letter, not spirit.
May 18, 2010, 12:41 amMofo says:
The great Chief Justice Marshall is laughing at you right now.
May 18, 2010, 3:52 amBrett Bellmore says:
The real “five factors” test, applied by the Supreme court in rational basis cases:
1. Did the leadership of Congress assert that it passed Congress, never mind if it really did.
2. Did the President sign it?
3. Is there some rationalization by which a factually challenged lunatic might think the bill hypothetically advances some public purpose, in an alternate universe?
4. Were we confirmed by the Senate?
5. Oh, forget 1-4, it’s constitutional.
May 18, 2010, 6:11 amBob says:
Then you’re not taking the word “necessary” seriously. To keep deer out of a yard, which could be done by fencing in the yard, nobody would think it necessary to find all the deer and fence them in a pen. To do so would be to confuse “necessary” with “possible” or “conceivable” or “sufficient”. You might as well say you “need” $100 to buy chewing gum. Sure, $100 is sufficient to buy chewing gum, but is it necessary?
I’m sure there are many circumstances where various alternatives to accomplish an end might be chosen, and one might pick any of them equally and call it “necessary” just because you have to pick one. But those alternatives have to be commensurate with the task, and not include some way-out-there measure disproportionate to what needs to be done. Would anybody deal with a contractor or examine an expense account on any other basis?
May 18, 2010, 7:52 amBob says:
There’s really only one purpose of the “necessary and proper” clause, and that’s to prevent Zeno’s paradox from paralyzing legislation. If you grant Congress the power to go there, what about the power to go halfway there, which it must surely need, etc.? To avoid infinitely listing all the instrumental steps that one could need to achieve part of the objective, this wording was used. So to get down the block, you’re also allowed to get halfway down the block, and a quarter of the way, etc. It doesn’t mean you get to take a side trip to the race track.
May 18, 2010, 8:24 amMark Field says:
Nobody can be certain what Marshall meant by “spirit”, but presumably it was something along the lines of “Congress can’t do anything which would undermine republican government” or something like that. Lots of rules are unstated in the Constitution, so I guess they’re the “spirit”.
Jefferson made this argument to Washington in arguing for a veto of the Bank bill. Washington rejected it. Even Madison wouldn’t have accepted Jefferson’s reasoning — Madison, after all, thought that McCulloch v. Maryland was correctly decided (though he did disagree with some of Marshall’s reasoning).
May 18, 2010, 10:04 amsubmandave says:
Am I correct in interpreting this to mean you believe Congress, under N+P, can legislate anything as long as it eventually ties it to an enumerated power? For example, if Congres, in its wisdom, decided they needed to more fully regulate the sale of Maine lobsters under the Commerce Clause, they could institute any number of other laws, such as taxing the caulk used for private boats that someone in MA might use to go do their own lobster fishing or banning the production of fake lobster meat using other fish?
IANAL, but it seems like an awful lot of effort is regularly expended to defend and try to justify the contortions used and circuitous logic to allow Congress to be our big Mommies and Daddies. This federal law exists for only one reason: a group of constituents, rightfully disturbed at a legal system releasing dangerous people, went to their Congress critter and instead of telling them “this is isn’t within our authority” and risking a bad PR event, the Rep pandered to them for good PR and votes. One very important purpose of SCOTUS is to nip this sort of nonsense in the bud, something they, by design, can do with impunity since they never have to stand for reelection. The general failing of recent courts to cry “enough” is, I believe, to our collective future woe.
May 18, 2010, 11:14 amChris Travers says:
1) The tax is an excise tax, and Constitutional under the taxation power.
2) They certainly could ban production of fake lobster meat to be sold in interstate commerce. If it’s important enough, it MIGHT be possible to ban production of fake lobster meat for consumption intrastate, but that would seem to require (to my mind) a substantial problem either of fraud (fake lobster meat passed off as real lobster meat) or a major interstate market for fake lobster meat that Congress wanted to eliminate. In the latter, you’d get into substantive due process issues though, I think (but IANAL).
However, a much more interesting question is whether the federal government could require a federal license to trap Maine lobsters. I think that would be over the line. However, Congress could probably place an excise tax on lobster-boat employees’ wages or hours.
May 18, 2010, 12:17 pmSuperSkeptic says:
Which part of Marshall’s reasoning, in particular, did he express disagreement with? Was it the same overbroad portion which is currently under debate?
May 18, 2010, 3:01 pmMark Field says:
Pretty much, yes. I won’t quote the whole thing because of length, but here’s the essence of what he said in a letter of 1819 to Spencer Roane:
“It appears to me as it does to you that the occasion did not call for the general and abstract doctrine interwoven with the decision of the particular case. I have always supposed that the meaning of a law, and for a like reason, of a Constitution, so far as it depends on Judicial interpretation, was to result from a course of particular decisions, and not these from a previous and abstract comment on the subject. The example in this instance tends to reverse the rule and to forego the illustration to be derived from
a series of cases actually occurring for adjudication. …
But what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a
May 18, 2010, 3:37 pmdefinite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned. In the great system of Political Economy having for its general object the national welfare,
everything is related immediately or remotely to every other thing; and consequently a Power over any one thing, if not limited by some obvious and precise affinity, may amount to a Power over every other. Ends & means may shift their character at the will & according to the ingenuity of the Legislative Body. What is an end in one case may be a means in another; nay in the same case, may be either an end or a means at the Legislative option.”
SuperSkeptic says:
Thank you very much.
May 18, 2010, 4:43 pm