Did Breyer’s 5 Factor Balancing Test in Comstock Replace McCullough 2 Step?

May 17th, 2010

Justice Thomas thinks so.

In short, the Court holds that the provision of SORNA is constitutional under the Necessary and Proper Clause. Justice Breyer advances 5 different considerations.

The Necessary and Proper Clause grants Congress authority suf-ficient to enact §4248. Taken together, five considerations compel this conclusion.

We take these five considerations together. They in-clude: (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 appro-priately 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.

Thomas in dissent alleges that Breyer has substituted a 5 factor balancing test for the classic McCullough test.

Must each of the five considerations exist before the Court sustains future federal legislation as proper exercises of Congress’ Necessary and Proper Clause authority? What if the facts of a given case support a finding of only four considerations? Or three? And if three or four will suffice, which three or four are imperative? At a minimum, this shift from the two-step McCulloch framework to this five-consideration approach warrants an explanation as to why McCulloch is no longer good enough and which of the five considerations will bear the most weight in future cases,assuming some number less than five suffices. (Or, if not,why all five are required.) The Court provides no answers to these questions.

Justice Breyer waxes a bit of active liberty poetics.

The Framers demonstrated considerable foresight in drafting a Constitution capable of such resilience through time. As Chief Justice Marshall observed nearly 200 yearsago, the Necessary and Proper Clause is part of “a consti-tution intended to endure for ages to come, and, conse-quently, to be adapted to the various crises of humanaffairs.” McCulloch, 4 Wheat., at 415 (emphasis deleted)

Oh Justice Breyer. Keep searching for Madison’s Ordered Liberty Chart.