This morning the Supreme Court handed down its opinion in United States v. Comstock, a challenge to the federal government’s authority to civilly commit a “sexually dangerous” federal prisoner beyond the time of his sentence. The U.S. Court of Appeals for the Fourth Circuit held that the federal government lacked such authority within its enumerated powers. The Supreme Court disagreed, voting 7-2 to uphold the federal government’s commitment power under the Necessary & Proper Clause. Justice Breyer wrote for the majority. Justices Kennedy & Alito concurred in the judgment, and Justice Thomas dissented, joined by Justice Scalia. The opinions are here. Some earlier VC posts on the case are here and here. I haven’t had a chance to read the opinions yet, but given that Justice Breyer wrote the majority — and that he is such an avowed advocate of broad federal power — I suspect this decision is a major setback for those seeking to limit the federal government to its constitutionally enumerated powers.
UPDATE: Here is how Justice Breyer summarizes the Court’s rationale in the concluding portion of his opinion:
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 lightof 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 considera-tions lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority thatpermits Congress to create federal criminal laws, to pun-ish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the securityof those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.
We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free topursue those claims on remand, and any others they have preserved.
ruuffles says:
Rather telling that Roberts, who is fully in the majority, assigned the opinion to Breyer, rather than someone who is less of an avowed advocate.
May 17, 2010, 10:25 amRodger Lodger says:
Am I “out of court”, or doesn’t this decision portend something for the challenges to ObamaCareTM? Can a commerce clause expert kindly weigh in (for free — bill your time to the feds.) Thanks.
May 17, 2010, 12:00 pmAnderson says:
… Remind me again how the “individual mandate” fails under the Necessary & Proper Clause?
May 17, 2010, 12:02 pmChris Travers says:
I think the argument I would make is that the health care reform does not, in fact, create interstate insurance pools. Instead the insurance pools are wholely intrastate. So here the federal government has created a framework for INTRASTATE-only commerce, and then imposed the mandate.
I think the government would have a much stronger case regarding the individual mandate if the insurance exchanges were interstate in nature.
Note that this argument wouldn’t imply that all possible individual mandates would be Unconstitutional, but that Congress cannot mandate that a certain form of commerce must be intrastate and then mandate it’s purchase as necessary and proper.
May 17, 2010, 12:20 pmAnderson says:
So here the federal government has created a framework for INTRASTATE-only commerce, and then imposed the mandate.
Chris, aren’t you addressing the Commerce Clause analysis, not the Necessary & Proper Clause?
Take a step back. Congress prohibits preexisting-condition exclusions, under the Commerce Clause presumably. THEN, because such a prohibition risks hamstringing the insurance scheme (the Young & the Health drop out, figuring they’ll buy insurance when they need it), mandatory coverage is necessary to accomplish the prohibition.
If said means are “really calculated to attain that end” — and I don’t think anyone seriously denies it — then apparently “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.”
May 17, 2010, 12:29 pmcecil kirksey says:
Does Medicare count as interstate? Just wondering!!
May 17, 2010, 12:31 pmAnderson says:
Does Medicare count as interstate?
You can’t get more interstate than Medicare.
May 17, 2010, 12:36 pmChris Travers says:
Yes, but the current version of the insurance exchanges may not be. (Note my argument would not be that all possible individual mandates are Unconstitutional, but rather that this bill as it is specifically structured is.)
BTW, the reasoning of the court in Comstock doesn’t seem to be problematic. I.e. if Congress has proper powers to pass laws, then it can use the necessary and proper clause to to determine when and how inmates are released.
I personally think the major problems with the statute are due process issues anyway.
May 17, 2010, 12:38 pmAnderson says:
Okay, but I still don’t understand why the intrastate nature of the exchanges is relevant under the Necessary & Proper Clause.
May 17, 2010, 12:44 pmR. L. Eckerman says:
The court’s decision on Comstock essentially creates a legal framework by which the federal government can hold anyone indefinitely, without trial or appeal, if the government merely has the opinion that person is “dangerous.”
A truly frightening expansion of governmental powers.
May 17, 2010, 12:58 pmBob from Ohio says:
While I think it likely that the SC will uphold Obamacare, this is a sex offender case. Sex offenders (and drunk drivers) cause both legislatures and courts to forget all restraint on power.
May 17, 2010, 1:01 pmruuffles says:
But when it’s a state government doing it, they’re just protecting their citizens!
May 17, 2010, 1:06 pmChris Travers says:
I disagree. The court only held that the enumerated powers claim doesn’t strike down this law. It specifically said the court would have to decide due process issues on remand.
Indefinite detention without trial or appeal is prevented in our Constitution by the due process requirement and the habeas corpus clause. The court didn’t address either of these issues, and only held that the question of enumerated powers didn’t apply.
May 17, 2010, 1:12 pmRQB says:
Anyone have insight into Scalia’s divergence from the Thomas dissent in Part III-A-1-b?
Brilliant work by Thomas, IMHO. I’m curious as to what a more learned SCOTUS scholar would think Scalia found objectionable…
May 17, 2010, 1:15 pmR. L. Eckerman says:
I don’t deny there are concerns at the state level, but the bar there is set higher. In the case of Comstock, the government merely “inferred” violent behavior when the actual conviction involved none. The only evidence for indefinite detention is the opinion of a psychologist. Worse, according to one of the attorneys involved, these men are forced into federal “treatment” programs, whereby if they fail to admit problems, they’re classed as “untreatable”, and if they do, they’re considered dangerous. A classic Catch-22 which potentially turns a 3-year sentence into life imprisonment.
May 17, 2010, 1:20 pmR. L. Eckerman says:
Thank you for correcting me. I didn’t realize SCOTUS left open the door on the due process issue.
May 17, 2010, 1:24 pmAnderson says:
Bob from OH is right, and R.L. Eckerman is preemptively protecting himself with his photo, which may make any criticism of his blog comments a federal offense.
May 17, 2010, 1:27 pmDilan Esper says:
I think the argument I would make is that the health care reform does not, in fact, create interstate insurance pools. Instead the insurance pools are wholely intrastate.
That isn’t really true. The law creates a mechanism for the creation of interstate pools, through compacts among the states.
(Not that this matters– federal commerce power assuredly extends at least to any health insurance company that operates in multiple states or whose operations affect commerce in multiple states, and therefore there’s no reason Congress cannot enact a preexisting condition regulation affecting most of the nation’s insurers under the commerce power, and cover the rest under the interpretation of “necessary and proper” approved in Raich.)
May 17, 2010, 2:35 pmChris Travers says:
I think the issue here is the trial court didn’t reach the due process issues, so Breyer (properly) wanted to prevent these claims from being ruled on based on an incomplete record. It ain’t over yet….
Also I suspect that’s why Breyer was awarded this opinion. He’s one of the most principled justices in terms of asking that a developed record be brought before SCOTUS.
May 17, 2010, 2:57 pmChris Travers says:
How does this really change the intrastate nature of the insurance market then? Were interstate compacts out of the question before?
(BTW, money for intrastate exchanges is one of the things I actually like about the HCR bill. I also think money should have been made available for intrastate claims processing clearinghouses, to help ensure consistency in billing across insurance companies.)
I’m still not entirely convinced of the applicability of Raich to this case. Or at least the HCR suits can easily be distinguished from Raich if the court decides to do so. Raich involved an interstate use challenge to a relatively long-standing federal law which would have been greatly frustrated by any acceptance of the challenge. This case involves a new law which would also be greatly frustrated, but the law is new (meaning the challenge will not be greatly disruptive if it succeeds) and the challenge is of intrastate non-use, which is different.
Furthermore, the concern in Raich was that home-grown marijuana would leak out into interstate commerce. However, this is very different from stating that one must purchase a good via INTRASTATE commercial exchanges. Those just don’t seem very analogous to me.
May 17, 2010, 3:15 pmBob says:
I wonder if Comstock could use Hamdi or Boumediene by way of analogy to counteract this ruling on remand?
May 17, 2010, 3:15 pmChris Travers says:
(The state regulation of the exchanges makes Virginia’s case far more interesting too….)
May 17, 2010, 3:20 pmDilan Esper says:
This case involves a new law which would also be greatly frustrated, but the law is new (meaning the challenge will not be greatly disruptive if it succeeds) and the challenge is of intrastate non-use, which is different.
It’s not different, because even if you conjure up a new, never before announced, “non use isn’t commerce” argument, it doesn’t have any application whatsoever to “necessary and proper”, which permits ANY regulation that is necessary and proper, whether it is a regulation of use or non-use.
How does this really change the intrastate nature of the insurance market then? Were interstate compacts out of the question before?
Not out of the question, but they would have required congressional approval to be enforceable. Now the states can just go ahead and do them.
May 17, 2010, 3:38 pmChris Travers says:
I dunno. I suppose it may be different meanings of “different.” I suspect you mean by “different” that you expect the court to differentiate the issue. I don’t know what the court will do. I use “different” to mean differentiable. Here it’s differentiable because the markets created are, by default, intrastate, and that the activity regulated is not “non-economic activity.”
I don’t think the courts have been extremely consistent on the N+P clause. The revised (with the requirement that the gun having travelled across state lines) gun-free school zone act has been upheld (though not by the Supreme Court, AFAIK) even though it doesn’t seek to regulate interstate commerce. I think that’s beyond what’s necessary and proper. OTOH, see the Violence Against Women Act struck down in Morrison.
But then the courts are never perfectly consistent anyway. If they were, obscenity laws would have been struck down as void for vagueness….. Some things survive just because they are old.
May 17, 2010, 5:09 pmThe Kids Are Alright « Around The Sphere says:
[...] Jonathan Adler: This morning the Supreme Court handed down its opinion in United States v. Comstock, a challenge to the federal government’s authority to civilly commit a “sexually dangerous” federal prisoner beyond the time of his sentence. The U.S. Court of Appeals for the Fourth Circuit held that the federal government lacked such authority within its enumerated powers. The Supreme Court disagreed, voting 7–2 to uphold the federal government’s commitment power under the Necessary & Proper Clause. Justice Breyer wrote for the majority. Justices Kennedy & Alito concurred in the judgment, and Justice Thomas dissented, joined by Justice Scalia. The opinions are here. Some earlier VC posts on the case are here and here. I haven’t had a chance to read the opinions yet, but given that Justice Breyer wrote the majority — and that he is such an avowed advocate of broad federal power — I suspect this decision is a major setback for those seeking to limit the federal government to its constitutionally enumerated powers. [...]
May 17, 2010, 5:57 pmR. L. Eckerman says:
I disagree. Interstate commerce is commerce *between* states. If you simply sell the same product (be it health insurance or anything else) in two different states, that doesn’t meet the test.
The Founders original intent was simply to allow the federal government to regulate the flow of goods and services between the individual states, and to adjudicate disputes arising therein. It was not intended to be a blanket authorization to regulate any entity that does business in multiple states.
May 17, 2010, 6:56 pmDilan Esper says:
R.L.
That’s what Barnett and Thomas believe too. Unfortunately, you have one vote on the Supreme Court, and constitutional theories that have only one vote on the Supreme Court may make for interesting discussions at cocktail parties but have no weight when determining what the law actually provides.
May 17, 2010, 8:23 pmAnderson says:
If you simply sell the same product (be it health insurance or anything else) in two different states, that doesn’t meet the test.
?? If I sell my zip gun in two different states, then (assuming I’m based in one state) that is selling from one state to another.
May 18, 2010, 10:44 amSex Criminals Can Be Imprisoned Indefinitely » First Thoughts | A First Things Blog says:
[...] is to keep them locked away. But using this ruling to justify that decision is a setback, as Jonathan Adler notes, “for those seeking to limit the federal government to its constitutionally enumerated [...]
May 19, 2010, 9:41 am