I blogged about this case before and posted the motion to dismiss. The government has filed its Reply. In my initial post, I focused on the commerce clause claim since I think that will be one of the most interesting issues in Adam Walsh Act cases. To continue that trend, this is part of the government's reply to the commerce clause argument:
Of course, Congressional authority sweeps broader than the Commerce Clause. In
addition to its other enumerated powers, U.S. Const., Art. I, § 8, Congress is constitutionally authorized to “make all Laws which shall be necessary and proper” to execute those enumerated powers. Id., Art. I, § 8, cl. 18. Given the “presumption of constitutionality” of legislative enactments, Respondent’s challenge may prevail only upon “a plain showing that Congress has exceeded its constitutional bounds” under all constitutional provisions, not simply the Commerce Clause as Respondent presses here. Morrison, 529 U.S. at 607. The Necessary and Proper Clause enables Congress to legislate to the extent that the legislation is “necessary and proper” to the exercise of some specific federal authority. Controlling Supreme Court authority confirms that the application of a civil commitment provision like the one here, to a person like the Respondent here, is a constitutionally sound exercise of Congressional authority under the Necessary and Proper Clause.1 Accordingly, the Court need not reach the Commerce Clause
challenge to conclude that Respondent’s motion should be denied. See United States v. Plott, 347 F.3d 873, 877 (10th Cir. 2003) (not reaching Commerce Clause challenges to statute because the court found adequate authority under the Necessary and Proper Clause).
....
Here, the Necessary and Proper Clause authorizes the civil commitment scheme of §
4248. Where a person in the custody of the BOP or the Attorney General is certified as unable to refrain from committing sexually violent acts or molesting children because of a mental illness, abnormality or disorder, Congress possesses the necessary and proper authority to prevent the likely future commission of a federal sex crime by preventing the release of the person into the public. In this instance, Congress elected to preserve its powers to proscribe sexual misconduct by subjecting those incapacitated persons in BOP’s or the Attorney General’s custody to civil commitment. Where the Constitution invests Congress with the power to criminalize, it invests Congress with the power to prevent the commission of those crimes by persons in BOP or Attorney General custody where “necessary and proper” to its authority to regulate persons in its custody and to criminalize the conduct.
Indeed, courts have blessed civil commitment schemes when necessary and proper to
prevent the future commission of federal crimes. In United States v. Perry, the court considered congressional authority to “provide for civil commitment for ‘the safety of the community’” by detaining persons under the Bail Reform Act, 18 U.S.C. § 3142(e) (“BRA”). United States v. Perry, 788 F.2d 100, 108-109 (7th Cir. 1986). The appellant challenged a provision of the BRA creating a presumption for persons charged with one of four drug trafficking offenses or firearm felonies that “no condition or combination of conditions will reasonably assure . . . the safety of the community” and therefore requiring detention of the person before trial. Id. at 109. In conducting its analysis, the court first clarified that it was not presented with the same type of unexhausted federal prosecution issue extant in Greenwood v. United States, 350 U.S. 366 (1956).
I haven't read the Perry case (which is a 7th Circuit opinion), but I think this argument is too broad in its implication. I don't know how you resolve the idea that Congress can do virtually anything to prevent a future federal crime with the holdings in Lopez and Morrison. I think its telling that, as far as I can tell, the prosecutor never attempts to distinguish Lopez and Morrison from the present case. I'm definitely going to keep following this case because I think one of these commerce clause challenges is likely to succeed and things will get very interesting.
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