The first decision on a motion to dismiss by any court concerning a 18 USC 4248(a) civil commitment hearing has been entered in the District of Massachusetts. At only eight pages in length, the opinion isn't long on legal reasoning. Here are some of the highlights:
The precise test to apply to a facial challenge is not clear. In United States v. Salerno, the Supreme Court explained that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” A plurality of the Supreme Court has since clarified that the so-called Salerno test may not always apply. But, this court concludes that, in this case, which does not involve a general regulation on speech, but instead the application of a statutorily defined commitment process to specific classes of individuals, it is appropriate to hold the challenger to the high “no set of circumstances” test defined by Salerno....
Respondents ably draw some distinctions between the facts here and the exercise of Congress’s Necessary and Proper Clause authority permitted by Greenwood, Perry, and Plotts. But this court concludes that the scope of the auxiliary power, as defined in those cases, extends so far as to allow Congress to prevent the release of those lawfully in custody, where it has rationally set up a process for determining that those individuals are likely to commit further acts of sexual violence proscribed under Congress’s Commerce Clause authority....
The title of § 4248, the placement of that provision with the other civil commitment sections, and the statute’s focus on commitment of those who are dangerous by virtue of a mental illness, all demonstrate that the law was intended to be civil, not criminal in nature. Some effects of § 4248 are punitive in nature, such as the involuntary detention of the Respondents. But, in examining the seven factors used to assess punitive effect, the court does not discern an adequate distinction between § 4248 and the law examined in Kansas v. Hendricks, that would support finding “‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Accordingly, the court rejects Respondents’ claims that the statute facially violates a number of constitutional guarantees to those facing criminal charges.
That portion includes the entirety of the commerce clause discussion. Admittedly, a facial challenge on lots of the issues is hard to win (although I'm not sure an as-applied challenge will do much better on some issues). However, it is disappointing to see the court so quickly dismiss a very serious problem with the AWA and its constitutional viability because of Morrison. Hopefully, future courts, even if they uphold the AWA, will be willing to discuss some of the closer issues in much greater detail.
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