pageok
pageok
pageok
Supreme Court Agrees To Hear Comstock Federal Power Case:

I blogged about the case in January, as did Ilya. Having had a (rare) success predicting the grant of certiorari, I now predict that the Supreme Court will reverse the Fourth Circuit decision, chiefly for the reasons I mentioned in my initial post.

CVme:
I don't mean to take away any credit, but you're betting pretty heavily with the odds when your prediction of a grant is qualified by saying "if the Obama Administration asks the Supreme Court to hear the case." Almost all of the petitions filed by the government are granted. While we're at it, you'd be right 60-70% of the time if you simply predicted the Court would reverse in every case it grants.
6.22.2009 11:45am
Dave N (mail):
While I agree that sexual predator laws are quite a bit different from the 19th Century Comstock Laws, the part of me that enjoys irony wonders if Graydon Comstock (the defendant in United States v. Comstock) is related to Anthony Comstock (namesake for the Comstock Laws).
6.22.2009 1:46pm
cjwynes (mail):
I think this might be factually distinguishable from Raich. In Raich, the law at issue was part of the CSA, an enormous web of laws and regulations intended to be a comprehensive legal framework for the government's dealings with controlled substances. That makes Raich quite different than this case, or the case on the Violence Against Women Act, though in fairness it doesn't distinguish Raich much from the Gun Free Schools Act (federal firearms regulation being somewhat similar to controlled substance regulation.)

Concededly, no case has used this as a basis for distinguishing between these kind of cases. But it does bear some resemblance to the analysis used in federal pre-emption jurisprudence. And the opinion in Raich did mention the comprehensive nature of the CSA in its analysis.

Or maybe there's some realpolitik going on here, and the Justices just want to save the law because they think civil commitments are good policy. But with only 3 of the justices in the Kansas v. Hendricks majority still on the court, the feelings of *this* court on that matter, politically, are up in the air.
6.22.2009 2:05pm
Incredulous:
cjwynes: Was Raich not concerned with the effect on the general supply of the good, whereas Gun Free Schools was concerned only with the presence of property in particular locations? The relation to interstate commerce seems clearly different.
6.22.2009 2:19pm
Kenneth Anderson:
Over at Opinio Juris, I ask the question whether, despite the fact that this is a Commerce Clause and federalism case, it might somehow carry implications for proposals for civil administrative detention of persons the government believes represent a threat - even if inchoate and generalized - of terrorism. I am curious to know whether any of our constitutional law scholars think there could conceivably be implications, despite the apparent inapplicability of the Constitutional provisions at issue.
6.22.2009 2:34pm
Dilan Esper (mail) (www):
While I agree that sexual predator laws are quite a bit different from the 19th Century Comstock Laws, the part of me that enjoys irony wonders if Graydon Comstock (the defendant in United States v. Comstock) is related to Anthony Comstock (namesake for the Comstock Laws).

I always wondered if the conservative lawyer Barbara Comstock was related to Anthony.
6.22.2009 2:46pm
Dilan Esper (mail) (www):
I think this might be factually distinguishable from Raich. In Raich, the law at issue was part of the CSA, an enormous web of laws and regulations intended to be a comprehensive legal framework for the government's dealings with controlled substances. That makes Raich quite different than this case, or the case on the Violence Against Women Act, though in fairness it doesn't distinguish Raich much from the Gun Free Schools Act (federal firearms regulation being somewhat similar to controlled substance regulation.)

I hate to be cynical, but in Lopez, the issue was gun control (for conservatives, bad) and in Morrison, the issue was laws against sex discrimination (again, for conservatives, bad).

Whereas in Raich, the issue was drug laws (for the conservatives on the court, at least, good), and in Comstock, the issue is civil commitment laws for sex offenders (again, for the conservatives on the court, at least, good).

Look, the reality is that the actual construction of Article I Section VIII by the Court is "Congress shall have the power to enact laws that do things that we approve of" and the Tenth Amendment is "the power to enact laws that we do not approve of shall be reserved to the states".
6.22.2009 2:50pm
cjwynes (mail):
Dilan, your simple left-right split analysis certainly doesn't account for the way the justices actually voted in Raich. The dissenters were Rehnquist, O'Connor, and Thomas. All 4 liberals voted to uphold the federal ban on marijuana. I think it's actually a pretty good example of legal reasoning trumping a political issue. Kennedy and Scalia are the only two who switched up, and at least Scalia wrote a concurrence to explain why, and anybody who wants to go after Scalia on that case should have read it first.


Also, that's a bit of a mischaracterization you've done of the Violence Against Women Act. It wasn't gender discrimination laws that were being challenged, it was the newly-minted federal civil remedy that allowed women to go into federal court and seek damages resulting from sexual assaults.
6.22.2009 3:33pm
Dilan Esper (mail) (www):
cj:

I don't doubt that Rehnquist, O'Connor, and Thomas were acting in a principled fashion in Raich. And so were the liberals.

Scalia and Kennedy, on the other hand, were engaging in judicial activism. And yes, I've read Scalia's concurrence. It's BS.

Also, that's a bit of a mischaracterization you've done of the Violence Against Women Act. It wasn't gender discrimination laws that were being challenged, it was the newly-minted federal civil remedy that allowed women to go into federal court and seek damages resulting from sexual assaults.

You don't think violence against women is a form of gender discrimination?

Of course, I could have characterized it as "conservatives don't think much of laws against sexual assault", but I think you would have howled even more at that characterization.
6.22.2009 6:22pm
Kirk:
Incredulous,
Was Raich not concerned with the effect on the general supply of the good, whereas Gun Free Schools was concerned only with the presence of property in particular locations? The relation to interstate commerce seems clearly different.
Ah, so now we're down to distinguishing between different kinds of nullities, eh?

Although maybe Dilan's analysis here (what Art I Sec VIII _really_ says) might be the winning one here. A rare tip of the hat to you, Dilan! :-)
6.22.2009 6:24pm
juris_imprudent (mail):
Look, the reality is that the actual construction of Article I Section VIII by the Court is "Congress shall have the power to enact laws that do things that we approve of" and the Tenth Amendment is "the power to enact laws that we do not approve of shall be reserved to the states".

So much for the rule of law and federal (tri-partite) governance.

Not that I can really disagree with you, but your summary disheartens me.
6.22.2009 9:09pm
Michael Ejercito (mail) (www):
How does civil commitment of sexually dangerous persons differ constitutionally from the internment of Japanese-Americans?

It wasn't gender discrimination laws that were being challenged, it was the newly-minted federal civil remedy that allowed women to go into federal court and seek damages resulting from sexual assaults.

Which was not necessary at all, since such remedies are available in state courts.


Of course, I could have characterized it as "conservatives don't think much of laws against sexual assault", but I think you would have howled even more at that characterization.

Congress was not empowered to provide a federal civil remedy for sexual assault in general.
6.22.2009 11:11pm
Kirk:
Or, if you're really after generality:
Congress was not empowered to provide a federal civil remedy for sexual assault in general.
6.23.2009 12:18am
Upend, Coming:
Not knowing the case at all, I predict it will be reversed as well.

Isn't a grant of certiorari correlated more strongly with reversal anyway?
6.23.2009 11:14am
Laura Victoria (mail):
I think Michael Ejercito is correct that Korematsu could serve as precedent for ruling in favor of the government here. Also, Professor Anderson's issue about civil detention based on alleged terrorism concerns could also fall under this analysis despite "commerce" not seeming to apply. It no longer seems to need to apply once rational basis analysis is deployed.

The solution in my view is not to engage in hairsplitting analysis over Raich, but simply to reverse it as stupidly decided. Step back, and look at the intent of the commerce clause. It was not meant to give every power imaginable to the federal government.
6.24.2009 11:37am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.