Ilya Shapiro (of the Cato Institute) has an interesting post discussing the upcoming Supreme Court argument in United States v. Comstock. The Cato Institute has also filed a brief in support of the Respondent Comstock. You may read the brief here. From the post:
In
2006, Congress passed the Adam Walsh Child Protection and Safety Act.
One provision of the law authorizes the federal government to civilly
commit anyone in the custody of the Bureau of Prisons whom the attorney
general certifies to be “sexually dangerous.” The effect of such an
action is to continue the certified person’s confinement after the
expiration of his prison term, without proof of a new criminal
violation.
Six days before the scheduled release of Graydon Comstock — who had
been sentenced to 37 months in jail for receiving child pornography —
the attorney general certified Comstock as sexually dangerous. Three
years later, Comstock thus remains confined in a medium security
prison, as do more than 60 other similarly situated men in the Eastern
District of North Carolina alone.
Comstock and several others challenged their confinements as going
beyond Congress’s constitutional authority and won in both the district
and appellate courts. The United States successfully petitioned the
Supreme Court to review the case.
The government’s reliance on the Necessary and
Proper Clause of Article I, Section 8, is misplaced because that clause
grants no independent power but merely “carries into execution” the
powers enumerated elsewhere in that section. The commitment of
prisoners after their terms simply is not one of the enumerated powers.
While the government justifies its actions by invoking its implied
power “to establish a federal penal system” — itself a necessary and
proper auxiliary to certain enumerated powers — civil commitment is
unrelated to creating or maintaining a penal system (let alone any
enumerated power). Nor can the law at issue fall under the Commerce
Clause, because civil commitment involves non-economic intrastate
activity.
I think the government's brief tries to take the Necessary and Proper Clause to places it should not go. However, I still think the government is going to win despite itself as the Court will choose a different rationale (with some Necessary and Proper Clause helping out) and uphold the statute. It is nice to see Cato writing a brief in the case as not many organizations are willing to write on behalf of a sex offender.
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