Instant Analysis: United States v. Comstock

May 17th, 2010

I will update this page as I read through the opinion.

From SCOTUSBlog:

The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.

The vote is 7-2, with Justice Breyer writing the opinion for the Court.  Justice Thomas dissents joined by Justice Scalia.  Justice Kennedy concurs in the judgment only, joined by Alito.

The opinion is here.

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.

(1) The Clause grants Congress broad authority to pass laws in fur-therance of its constitutionally enumerated powers. (2) Congress has long been involved in the delivery of mentalhealth care to federal prisoners, and has long provided for their civil commitment. (3) There are sound reasons for §4248’s enactment. The Federal Government, as custodian of its prisoners, has the constitutionalpower to act in order to protect nearby (and other) communities from the danger such prisoners may pose. (4) Respondents’ contention that §4248 violates the Tenth Amend-ment because it invades the province of state sovereignty in an area typically left to state control is rejected. That Amendment does not “reserve to the States” those powers that are “delegated to the United States by the Constitution,” including the powers delegated by theNecessary and Proper Clause. (5) Section 4248 is narrow in scope. The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step re-moved from a specifically enumerated power.

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 relies on the long standing practice of Congress being “involved in the delivery of mental health care to federal prisoners, and has longprovided for their civil commitment.”

Thomas does not buy the argument that the duty to protect the health of prisoners justifies the permanent commitment of sex offenders.

For this reason, I cannot agree with JUSTICE ALITO that §4248 is a necessary and proper incident of Congress’ power “to protect the public from dangers created by thefederal criminal justice and prison systems.” Ante, at 3 (concurring in judgment). A federal criminal defendant’s “sexually dangerous” propensities are not “created by” the fact of his incarceration or his relationship with the fed-eral prison system. The fact that the Federal Government has the authority to imprison a person for the purpose ofpunishing him for a federal crime—sex-related or other-wise—does not provide the Government with the addi-tional power to exercise indefinite civil control over that person.13

From Justice Kennedy’s typical opinion concurring in judgment, he aims to limit the breadth of the Court’s opinion:

Concluding that a relation can be put into a verbal formulation that fits somewhere along a causal chain of federal powers is merely the beginning, not the end, of the constitutional inquiry. See United States v. Lopez, 514

U. S. 549, 566–567 (1995). The inferences must be con-trolled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely un-bounded by linking one power to another ad infinitum in a veritable game of “‘this is the house that Jack built.’” Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), 31 The Papers of Thomas Jefferson 547 (B.Oberg ed. 2004); see also United States v. Patton, 451 F. 3d 615, 628 (CA10 2006).

This separate writing serves two purposes. The first is to withhold assent from certain statements and proposi-tions of the Court’s opinion. The second is to caution that the Constitution does require the invalidation of congres-sional attempts to extend federal powers in some instances.

And what does Kennedy specifically disagree with? Curiously, Kennedy rejects Lee Optical as the test for Commerce Clause cases.

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thoughtthat the particular legislative measure was a rational wayto correct” an evil, is the proper test in this context.Rather, under the Necessary and Proper Clause, applica-tion of a “rational basis” test should be at least as exactingas it has been in the Commerce Clause cases, if not more so. Indeed, the cases the Court cites in the portion of itsopinion referring to “rational basis” are predominantly Commerce Clause cases, and none are due process cases.

There is an important difference between the two ques-tions, but the Court does not make this distinction clear. Raich, Lopez, and Hodel were all Commerce Clause cases. Those precedents require a tangible link to commerce, not a mere conceivable rational relation, as in Lee Optical. “‘[S]imply because Congress may conclude that a particu-lar activity substantially affects interstate commerce doesnot necessarily make it so.’” Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment)). The rational basis referred to in the Com-merce Clause context is a demonstrated link in fact, based on empirical demonstration. While undoubtedly deferen-tial, this may well be different from the rational-basis test as Lee Optical described it.

Justice Kennedy also has a refined view of the 10th Amendment, perhaps a relic of the federalism heyday of the Rehnquist Court.

The opinion of the Court should not be interpreted tohold that the only, or even the principal, constraints onthe exercise of congressional power are the Constitution’sexpress prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowingfrom the federal system are of no import when definingthe limits of the National Government’s power, as it pro-ceeds by first asking whether the power is within theNational Government’s reach, and if so it discards federal-ism concerns entirely.

These remarks explain why the Court ignores importantlimitations stemming from federalism principles. Those principles are essential to an understanding of the func-tion and province of the States in our constitutional structure.

Justice Kennedy also remarks on the intersection of federal powers  state sovereignty.

It is of fundamental importance to consider whether essen-tial attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power isnot one properly within the reach of federal power.

Justice Alito’s concurring opinion explains his agreement, and disagreement with different elements of the majority and dissenting opinions.

The Necessary and Proper Clause does not give Con-gress carte blanche. Although the term “necessary” doesnot mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a powerconferred by the Constitution and the law enacted byCongress. See McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). And it is an obligation of this Court to enforce compliance with that limitation. Id., at 423.

The law in question here satisfies that requirement.This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underly-ing the federal criminal statutes and the challenged civilcommitment provision. Here, there is a substantial link to Congress’ constitutional powers.

From Justice Thomas’s dissent, joined by Justice Scalia:

The Court holds today that Congress has power underthe Necessary and Proper Clause to enact a law authoriz-ing the Federal Government to civilly commit “sexually dangerous person[s]” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. 18 U. S. C. §4248(a). I disagree. The Necessary and ProperClause empowers Congress to enact only those laws that“carr[y] into Execution” one or more of the federal powers enumerated in the Constitution. Art. I, §8, cl. 18. Because §4248 “Execut[es]” no enumerated power, I must respect-fully dissent.

The Court holds today that Congress has power underthe Necessary and Proper Clause to enact a law authoriz-ing the Federal Government to civilly commit “sexually dangerous person[s]” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. 18U. S. C. §4248(a). I disagree. The Necessary and ProperClause empowers Congress to enact only those laws that“carr[y] into Execution” one or more of the federal powers enumerated in the Constitution. Art. I, §8, cl. 18. Because §4248 “Execut[es]” no enumerated power, I must respect-fully dissent.

Justice Thomas goes through a great summary of the history of the Necessary and Proper Clause, from McCulloch to Raich.

Thomas holds that the Commerce clause cannot justify detention of sex offenders.

Indeed, not even the Commerce Clause—the enumerated power this Court has interpretedmost expansively, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)—can justify federal civildetention of sex offenders. Under the Court’s precedents,Congress may not regulate noneconomic activity (such assexual violence) based solely on the effect such activitymay have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of OralArg. 21–22.5

This argument can have huge implications for future challenges to Health Care under the Commerce Clause.

And Thomas rejects the notion that simply because sexual abuse is a grave problem the Feds need to step in.

To be sure, protecting society from violent sexual of-fenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victimpersonally and society generally. See, e.g., Kennedy v. Louisiana, 554 U. S. ___, ___, n. 2, (2008) (ALITO, J., dis-senting) (slip op., at 9, n. 2, 22–23). But the Constitution does not vest in Congress the authority to protect societyfrom every bad act that might befall it.6 New York v. United States, 505 U. S. 144, 157 (1992) (“‘The question is not what power the Federal Government ought to havebut what powers in fact have been given by the people’” (quoting United States v. Butler, 297 U. S. 1, 63 (1936)).

Thomas concludes with an ode to federalism, and the withering Necessary and Proper Clause.

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” Printz, supra, at 923. Regrettably, today’s opinion breathes new life into that Clause, and—the Court’s protestations to the contrarynotwithstanding, see ante, at 18—comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected,” Lopez, 514 U. S., at 584 (THOMAS, J., concur-ring) (citing Gregory, supra, at 457; Wirtz, 392 U. S., at 196; Jones & Laughlin Steel Corp., 301 U. S., at 37). In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grantof authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.” McCulloch, supra, at 423.