As I am giving a presentation later this week about the Adam Walsh Act, I will be posting many posts related to the Act this week. So, think of this post as the first of "Adam Walsh Act Week" here at Sex Crimes.
Comstock is the case out of North Carolina that I have written a couple prior posts about. The defense has filed its reply to the government's response. You can download the new filing here. As I have primarily focused on the Commerce Clause argument (which the government has also made into a Necessary and Proper Clause argument), I will continue to do so. This is from the new brief:
Even assuming arguendo that the government’s position may have been tenable under the courts’ views of federal powers in the 1920's, it certainly does not pass muster in a post-Lopez, post-Morrision world. First, Congress’ claim of necessary and proper powers derives, apparently, on its powers under the Commerce Clause. For reasons discussed at length in respondent’s first motion, those Commerce Clause powers have been extremely curtailed since Lopez and Morrision. Accordingly, any powers deriving from those Commerce Clause powers are likewise curtailed.
In addition, the Lopez Court noted that the federal government cannot “pile inference
upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Lopez, 514 U.S. at 567. The Court further explained that “[t]o do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.” Id. at 567-68 (internal citations omitted). The government engages in the same stacking of inferences about which the Supreme Court warned in Lopez. The government asserts that Congress has the power to criminalize certain conduct. The government then infers that the power to criminalize certain conduct necessarily implies the power to prevent that conduct. The government then infers that the power to prevent certain conduct necessarily implies a wholesale scheme of preventative detention imposed on those deemed likely to commit some act that it has the power to criminalize. This assertion of federal power was never allowable under any era of constitutional jurisprudence, but certainly not in the current era when the courts have reaffirmed the distinction between what it truly national and truly local.
I think the defense has really made a strong argument here and I'll be interested to see how the court rules. It could certainly follow the lead of the court in Madera and find no commerce clause problem, but I could easily see the opposite ruling as well.
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