So the Court just held in United States v. Comstock, with Justices Thomas and Scalia dissenting, and Justices Kennedy and Alito concurring in the judgment. I hope to have more later today, after I have a chance to read the opinions.
UPDATE: In the meantime, here’s the syllabus, from Justice Breyer’s majority opinion, which is joined by the four liberals plus Chief Justice Roberts:
(1) The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. It makes clear that grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the enumerated power’s “beneficial exercise,” e.g., McCulloch v. Maryland, 4 Wheat. 316, 413, 418, and that Congresscan “legislate on that vast mass of incidental powers which must beinvolved in the constitution,” id., at 421. In determining whether the Clause authorizes a particular federal statute, there must be “means-ends rationality” between the enacted statute and the source of federal power. Sabri v. United States, 541 U. S. 600, 605. The Constitution “addresse[s]” the “choice of means” “primarily … to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Thus, although the Constitution nowhere grants Congress express power to create federal crimes beyond those specifically enumerated, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, or to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, Congress possesses broad authority to do each of those things under the Clause.
Congress has long been involved in the delivery of mental health care to federal prisoners, and has long provided for their civil commitment. A longstanding history of related federal action does not demonstrate a statute’s constitutionality, but can be “helpful in reviewing the substance of a congressional statutory scheme,” and, in particular, the reasonableness of the relation between the new statute and preexisting federal interests. Section 4248 differs from earlier statutes in that it focuses directly upon persons who, due to a mental illness, are sexually dangerous. Many of these individuals, however, were likely already subject to civil commitment under§4246, which, since 1949, has authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous (whether sexually or otherwise). The similarities between §4246 and §4248 demonstrate that the latter is a modest addition to a longstanding federal statutory framework.
There are sound reasons for §4248’s enactment. The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose. Moreover, §4248 is “reasonably adapted” to Congress’ power to act as a responsible federal custodian. Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct,” would pose an especially high danger to the public if released. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody. Congress’ desire to address these specific challenges, taken together with its responsibilities as a federal custodian, supports the conclusion that §4248 satisfies “review for means-end rationality.” …
The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step removed from a specifically enumerated power. Nor will the Court’s holding today confer on Congress a general “police power, which the Founders denied the National Government and reposed in the States.” United States v. Morrison, 529 U. S. 598, 618. Section §4248 has been applied to only a small fraction of federal prisoners, and its reach is limited to individuals already “in the custody of the” Federal Government, §4248(a). Thus, far from a “general police power,” §4248 is a reasonably adapted and narrowly tailored means of pursuing the Government’s legitimate interest as a federal custodian in the responsible administration of its prison system.
The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents are free to pursue those claims on remand, and any others they have preserved.
As I blogged last year, I think this is the right result:
The Constitution clearly provides that Congress shall have only the limited powers that it grants — not including a general power to prevent crime — and it seems to me that courts should enforce those constitutional constraints as much as they enforce others. To be sure, there are enough precedents authorizing very broad assertions of Congressional power that I doubt that courts ever will return to the original understanding. But some policing of the outer boundaries of Congressional power is proper, as Lopez, Morrison, and City of Boerne v. Flores make clear.At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let’s set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that’s an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety — which will likely be a federal crime — and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it’s hard to see why the Necessary and Proper Clause wouldn’t authorize continued detention of people who have shown a willingness to commit such federal crimes.
One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won’t be imprisoned for the crime — since he’s not criminally guilty — but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that’s right, but how does it fit the panel’s decision?
After all, the person is not guilty, so Congress can’t appeal to its power to punish federal criminals (just as the people in this case can’t be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel’s reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that’s the right answer, since Congress lacks the enumerated power to detain them — but I’m skeptical that this is so.
Alternatively, perhaps Congress can detain these not-guilty-for-reason-of-insanity people, as part of whatever federal power justified their criminal trial in the first place. If someone insanely commits a federal crime, Congress should be able to lock him up to prevent him from committing more such federal crimes in the future. But why wouldn’t this equally be so for the people adjudged sexually violent predators? (I should stress again that this is a separate question from the broader Due Process Clause question of whether any government, state or federal, may civilly lock people up because of their future dangerousness, after their criminal term has expired.) In any case, that’s why I’m tentatively skeptical about the panel’s reasoning [striking down the statute -- the decision that the Supreme Court has just reversed -EV 05/17/2010].
Hans Bader says:
The RESULT may be mostly defensible, but the Court’s REASONING is really strange.
As I understand it, FEDERAL civil commitment can be based (in 20 percent of cases) not on the federal crime for which the defendant was imprisoned (presumably under a valid power like the Commerce Clause) but on some OTHER crime unrelated to the federal imprisonment (for which there is no enumerated power basis).
So the statute’s application in such cases is not in any sense an application of the “Necessary and Proper” clause, since the application is not necessary, or even related, to a valid federal power.
I understand that if the Court decided the case the other way, the Court would have been demagogued for months, and its ruling would have been distorted by hostile editorialists and politicians. Still, I expected a better-reasoned decision than this.
I am not saying the STATUTE ITSELF is facially unconstitutional; but some APPLICATIONS of it probably are.
May 17, 2010, 10:26 amAnderson says:
Breyer’s majority opinion, which is joined by the four liberals
Oopsie. I believe Breyer is usually accounted one of those “four liberals”? Stevens, Ginsburg, Breyer, Sotomayor?
May 17, 2010, 11:53 amsardonic_sob says:
If someone has violated a law they should be convicted of said violation and then punished accordingly.
If they have not violated a law or if they have been duly punished under that law then it is a hideous abuse of human rights to imprison them on the grounds that in some bureaucrat’s opinion, they are a bad person. It matters not that they may, in fact, be a bad person. We are all somebody else’s bad person. Under such a scheme, none of us are safe. Civilized societies do not disappear people, they do not toss them down the memory hole, they do not stick them in gulags. That goes for terrorists, sex offenders, cartel leaders, etc.
If you want to impose legal sanctions upon them THEN MAKE WHAT THEY DID APPROPRIATELY SANCTIONABLE.
If you do not like the result of the law or the limitation of the law, then change the law. If you want the ability to lock them up forever, make the maximum penalty for the crime life imprisonment. Or, for that matter, death. If they’re so dangerous they can never be released, have the courage of your convictions (if you’ll pardon the pun) and execute them. I don’t see what’s so hard about this.
May 17, 2010, 12:40 pmfwb says:
I’ll bet that no one can locate any authority any where in the Constitution that grants punishment power to the feds EXCEPT in 5 cases. Those five are explicitly granted and those grants provide absolute evidence against implied authority even under the “necessary and proper” clause, which is a restictive clause and not an expansive clause.
There is no grant to punish in the case noted. Read the Constitution. Comprehend the language. Grasp the paradigm of our system. The judges do not seem to have the capacity to do so.
May 17, 2010, 12:52 pmDilan Esper says:
So the statute’s application in such cases is not in any sense an application of the “Necessary and Proper” clause, since the application is not necessary, or even related, to a valid federal power.
Hans, from McCulloch v. Maryland forward, the necessary and proper clause has been interpreted much more broadly than this.
So you might consider that since so many Supreme Court justices, some of the most learned and trained individuals in the law that this country has produced (certainly smarter and better trained than you are), have endorsed this interpretation of the necessary and proper clause (including, by the way, even Scalia, even though he dissented this morning), that maybe, just maybe, you might be wrong and they might be right.
Just saying.
May 17, 2010, 2:34 pmrodsmith says:
horsy pucky! This criminal decision brings our supreme court and our govt up into the company of other crimianls like adolph hitler, stalin, and mao.
There is no way it can possible be legal to decide someone is sane enough to trial. have the trial. get a conviction. Get a sentence. SERVE that sentenc. THEN decide they are nuts!
sorry that’s a civil rights violation of the first order and by ignoring it the nazi wannabe’s on the U.S Supreme Court have just given those individuals and their families every LEGAL and MORAL right to use whatever means necessary up to and INCLUDING lethal force to gain their FREEDOM from an UNJUST and CRIMINAL inprisonment.
May 17, 2010, 2:52 pmSupreme Court: US Vs. Comstock « La Flog says:
[...] dangerous in the future.” The constitutionality of this decision is meaningless to me (not other people, though), because this is clearly a huge violation of human rights. I hope to update later with [...]
May 17, 2010, 4:32 pmGuy says:
You realize that this was a
May 17, 2010, 7:26 pmCommerceNecessary and Proper Clause case, not a Due Process Clause case, right?rodsmith says:
no offence guy but it doesnt’ matter what legal baloney you cover it in. it still SMELLS and looks like a civil rights violation. Considering the last time i looked at the constitution it said no ex post laws are allowed. PERIOD there is nothing in it about allowing only CIVIL ex post laws. it says NO NONE NADA! so just about every law passed covering sex crimes in the last 10-20 years that has been ilegaly made retroactive are illegal and you might have a good argument they are also TREASON comitted by the govt officials who know they are illegal and write and pass em anyway.
it’s not even close to legal under about 100 years of legal pres to have a trial and have a sentence then serve that sentence THEN have the state decide your nuts. SORRY it just dosnt’ legally work that way here.
May 18, 2010, 3:19 amCommenter says:
sardonic_sob says:
“If they’re so dangerous they can never be released, have the courage of your convictions and execute them”
Executing someone is actually more expensive than life imprisonment.
May 18, 2010, 7:29 am