Bad News for Federalism? Some Preliminary Reflections on Comstock

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.

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