Kagan, for the government opens with this contention:
To see why, to understand the basis for this statute, it might be helpful to go all the way back to 1945, when what this Court later called "a conspicuously able committee of Federal judges" recommended that Congress pass section 4246, a very similar civil commitment law that has been on the books for some 60 years.
To me, this illustrates exactly what is wrong about the government's position. It is based upon a very different era in Commerce Clause and federal jurisdiction doctrine. The Court may very well return us to that system, but I just find it an odd choice for an opening given the lower court opinions that found Lopez and Morrison proved there was no basis for federal jurisdiction under 4248.
Justice Ginsburg's first question is about the comparison between people found insane and those committed under 4248. That does not bode well for Comstock. If the Court sees those provisions as analogous, then the case is already lost.
In an exchange with Justice Scalia, I think Kagan is arguing for way to much:
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.
The fact that the government has refused to identify an enumerated power throughout the arguments in this case is still strange. It sounds like Kagan is asserting a general police power for the federal government.
Chief Justice Roberts asked what I see as the critical issue for the most likely basis for federal jurisdiction:
CHIEF JUSTICE ROBERTS: Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted? In other words, when the sentence is done?
This was Kagan's reply with an interjection with Justice Scalia:
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.
That sounds like Kagan is dodging and not doing a good job of defending that theory. Saying that the feds have authority for how releases are handled is not the same as saying they have the authority for a new term of detention upon release.
Kagan, in an exchange with Justice Kennedy, conceded that a person on supervised release would not be subject to a 4248-type law because there would be a lack of federal jurisdiction. This strikes me as the compromise line that an opinion in favor of the government could latch onto.
Justice Scalia, who often asks intentionally provocative questions that he doesn't always support, seemed skeptical of the government's theory:
JUSTICE SCALIA: They don't fall through the cracks if the Federal Government notifies the State into which this prisoner is to be released: We are going to release a prisoner; we think he's sexually dangerous; you should take some action to be sure that he doesn't harm society. Because that's a State police function, it's none of our business.
Justice Sotomayor asks a good slippery slope argument about whether a similar statute would allow criminally violent persons to be committed.
And then Justice Scalia asked the question that really goes to the heart of the case. This is the question and answer:
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.
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.
And so the government is arguing that necessary means beneficial? That's crazy talk. I think Kagan is taking liberties with the language of prior cases.
Comstock has to be happy with this statement from Justice Scalia:
JUSTICE SCALIA: I mean, this -- this is a recipe for the Federal Government taking over everything.
Justice Kennedy finally points out that the government keeps avoiding Commerce Clause discussion:
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?
And Kagan gives what I consider to be the shocking explanation of why:
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 Morrison -- 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. And the reason they are most likely is because all of them have done it once before and all of them have been found to have the kind of mental illness that makes it --
I don't know how the second paragraph can ever be consistent with the concession made in the first paragraph about Morrison. It seems completely contradictory.
Justice Stevens points out that the law applies to non-sex offenders and Kagan even says that 20 people currently certified were not imprisoned for sex offenses.