Tag Archives | Comstock

Comstock and National Security Detentions

Co-blogger Ken Anderson asks:

Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?

These issues were not discussed in the briefs of the parties, the oral arguments, or any of the amicus briefs I have seen (though I haven’t read all of the latter). Even if Comstock wins, I don’t think the decision will have much impact on national security detentions. The Comstock litigation only addresses Congress’ power to confine people using its powers under the Commerce Clause and the Necessary and Proper Clause. The detention of terrorists and other enemy combatants is authorized by some combination of Congress’ power to declare war, its power to “raise and support Armies” (which presumably includes those personnel responsible for holding enemy prisoners); its power to establish laws for the “government and regulation” of the armed forces (including procedures for detaining enemy combatants), and its power to “define and punish” offenses under the “law of nations” (which includes the power to punish enemy combatants who have committed war crimes). Some detentions might also be authorized by the president’s power as commander-in-chief, though in my view such detentions are subject to congressional regulation. […]

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Assessing the Comstock Oral Argument

Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” offenders after the completion of their federal prison terms – even if the crimes for which they were originally convicted have no connection to sexual predation. Somewhat strangely, in my view, the government’s brief focused almost entirely on the Necessary and Proper Clause, and largely ignored potentially effective arguments that they could prevail under current Commerce Clause precedent. To my mind, the most telling exchange in the oral argument was this one between Justice Scalia and Solicitor General Elena Kagan:

JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.

Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it’s necessary for the good of society, but that’s not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he’s served his punishment.

GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is,


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