SCOTUS just posted the transcripts here for United States v. Comstock. I’ll update this page as I go through the transcripts.

In this interchange, the Justices go to the heart of the matter. Where does Congress have the power to confine sexual predators.

JUSTICE SCALIA: What — what — what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?

GENERAL KAGAN: I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public.

CHIEF JUSTICE ROBERTS: So you would say that the Federal Government has no such power independent of the criminal conviction? In other words, that Congress could not pass a law saying, just as this one says, we are going to commit people who are sexually dangerous until a determination that they are not or until the State can take them? That power would not be in Article I?

GENERAL KAGAN: Without the person having entered the criminal justice system in any way.

CHIEF JUSTICE ROBERTS: Right. I understand your argument to be that this power is necessary and proper, given the fact that the person is in Federal custody for some other reason, criminal conviction.

….

GENERAL KAGAN: Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way —

JUSTICE SCALIA: But you said no. I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that’s the only power you could be relying upon.

GENERAL KAGAN: I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.

Justice Sotomayor also tried to test the outer bounds of the Commerce Power:

JUSTICE SOTOMAYOR: Under your theory –under the theory that you are proposing, then, any dangerous person, whether it’s because of mental illness or any other reason, could be held indefinitely under a civil commitment statute. Because what you’re saying is that the Federal Government, merely  their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person.

GENERAL KAGAN: I think what would prevent that, Justice Sotomayor, is the Due Process Clause. It is obviously the case that there are other constraints on governmental action than Article I.

JUSTICE SOTOMAYOR: Well, what constrains the government under the Due Process Clause from invoking a dangerousness merely because someone has a long history. We have many criminal defendants with long histories of violent behavior. Many of them continue that violent behavior in prison and some of them at the end of their term are let out, because their term has been completed. So what are the Due Process Clause effects?

GENERAL KAGAN: Well, I think that the history of this Court’s cases would suggest that if this were a person without mental illness that the civil commitment statutes —

JUSTICE SOTOMAYOR: But that’s where I’m trying to understand — because the connection between the nature of the mental illness and the constitutional power that you are claiming. What — what is it that gives you that power?

Scalia hits Kagan hard on the Necessary and Proper argument:

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.

In response, Kagan doesn’t exactly say which enumerated Federal Power, short of the “responsible exercise of the Federal Power to operate a criminal justice system,” a phrase she oft-repeats.

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, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal — in that criminal justice system, are not released irresponsibly.

The commerce clause is not mentioned until page 21 of the transcript when Justice Kennedy jumps in.

JUSTICE KENNEDY: When I was thinking about your hypothetical I thought, well, that’s a pretty easy commerce power argument. I — I notice that in — in the government’s position you don’t argue the Commerce Clause very much, and I — we have got at Morrison v. Bronkalla looking at you and Printz, and so forth.

But suppose Congress said: There is a class of committable, dangerous sex offenders that are crossing State lines and using interstate facilities, and made those findings. Would that be sufficient to establish a Federal commitment law?

GENERAL KAGAN: Well, as you say, Justice Kennedy, the Government has never argued the Commerce Clause here in the sense that it has never argued that these activities have a substantial effect on interstate commerce, and it hasn’t done so because of the Morrisson — the Morrison precedent. The Commerce Clause I think is relevant in two ways. It’s relevant first because, of course, it’s often the Commerce Clause that gives rise to the power to criminalize conduct and to punish people for that conduct. So I think in — in three of the five of these cases, the initial power to criminalize the conduct is based on the Commerce Clause.
The Commerce Clause is also relevant here because the Commerce Clause does give rise to a set of Federal laws having to do with sexual offenses, sexual solicitation of a minor, sexual exploitation of a minor when interstate commerce is involved, and when the Internet is involved. And we do think that that provides an additional basis, not a sufficient basis, but an additional basis to — to approve this law in the sense that these are the people who are most likely, really, to violate such Federal laws which are based on the Commerce Clause in the future.

Justice Sotomayor also asks about the commerce clause:

JUSTICE SOTOMAYOR: But that’s — but that’s an easier case, because at least you have an interstate connection to the offensive conviction and the ground for future commitment. But these statutes don’t depend on that element being a part of the commitment process. There’s no — there’s no congressional — there’s no tie to a congressional power that justifies the commitment other than that the person is sexually dangerous.
GENERAL KAGAN: The — the essential tie to a congressional power is the tie of these people to the Federal criminal justice system because they are in Federal custody.
JUSTICE SOTOMAYOR: It’s that special relationship.
GENERAL KAGAN: That’s — that’s right. And in addition to that, these are the people who are most likely to violate Federal laws based on the Commerce Clause in the future. Most likely to violate such laws because they have done so in the past, and because they have mental conditions that make it extremely difficult –

Alito asks the respondent a bit about the Commerce Clause:

JUSTICE ALITO: Well, only to the extent that that’s what the statute says. Take whatever the offense is, would it be a violation of the Necessary and Proper Clause? Let’s say it’s a commerce — it’s based on the Commerce Clause. Would Congress exceed it’s powers under the Commerce Clause if it imposed a sentence of life imprisonment without the possibility of parole?
I mean it raises other constitutional questions, but why does it raise the question as to the extent of the power that is being exercised by — by Congress?
MR. DUBOIS: Well, Your Honor, I think Congress does have almost unlimited authority to set statutory maximums for different crimes based on their estimation of the severity of the crime. I — I don’t see that that poses the problem. The problem here is that there is no necessary connection between the — say the regulation of interstate commerce and the desire to prevent primarily local sex offenders. It’s very difficult to say how preventing general, State type violent crimes has anything to do with the regulation of interstate commerce? That’s —

…

JUSTICE STEVENS: I want to follow up on Justice Alito’s question. Supposing Congress passed a statute that said at the expiration of every sentence the prisoner shall examined for certain reasons, and if he fails certain tests he shall not be released for another 30 days. Say he should be examined to determine better he is a sexual predator. And that is in every sentence at the time of the sentence?
MR. DUBOIS: And every — and then, following that examination, they could be then detained indefinitely?
JUSTICE STEVENS: Right. And it says so in the statute.
MR. DUBOIS: I do not think that that would be constitutional, Your Honor, because it would still have to be part of the punishment for the crime. Civil commitment is a civil —

JUSTICE STEVENS: One of the elements of the punishment is that you are subjected to this examination that otherwise you would not have to take. It seems to me, maybe your case boils down to the fact that — that Congress hasn’t written the right statute.

MR. DUBOIS: We do not know that this
statute cannot be written constitutionally. All we know is this statute is not written constitutionally, because it is effectively unlimited. It effectively does require no connection between the underlying criminal charge and the subsequent commitment. You can be in custody for any crime whatsoever. It doesn’t have to be sex-related, you can never have been convicted of a sex offense whatsoever.
So it really is, there is almost a complete de-linking of the crime which brought you into federal custody and your subsequent commitment. Can we imagine hypotheticals that — that create a link, that rolls it into the punishment? Perhaps, but that is not this statute, and this statute must fail for that reason.

In a comical moment, General Kagan refers to Justice Scalia as Mr. Chief, then corrects herself:

GENERAL KAGAN: Mr. Chief — excuse me, Justice Scalia — I didn’t mean to promote you quite so quickly.
(Laughter.)
CHIEF JUSTICE ROBERTS: Thanks for thinking it was a promotion.
(Laughter.)
JUSTICE SCALIA: And I’m sure you didn’t.
(Laughter.)

There was zero discussion of Raich, zero discussion of Lopez, and scant mentions of Morrison. I am not too optimistic here. Nino was tough on Kagan, but I am not sure if he would let pedophiles go free. Law & Order v. Enumerated Powers.