Some of you might remember the Comstock case that I've blogged about before. When I last updated the story, the Federal Public Defenders had achieved a major victory in the Eastern District of North Carolina. Obviously, things didn't end there and the case is awaiting a calender date for an appeal before the Fourth Circuit. However, all the briefing is done. The Commerce Clause issue (or what has become the Necessary and Proper Clause issue) is obviously a central issue and here are some of the key portions of the briefed argument. From the Defendant's response:
In its brief, the government does not address the holdings of Lopez and Morrison. Instead, the government relies upon the Necessary and Proper Clause, historical practice, and analogy to 18 U.S.C. § 4246 to justify § 4248. None of these arguments overcome the weight of precedent or the constitutional limits on Congress’ power....
Congress’ asserted powers in relation to federal prisons must derive, not from its status as jailer, but from the underlying enumerated powers themselves. Viewed in this light, the government’s attempt to extrapolate from the power to regulate commerce among the several states to the right to civilly detain any individual in BOP custody who it deems “dangerous” asks the Necessary and Proper Clause to bear more weight than the Supreme Court has held it can support....
The district court observed that the laws at issue in Lopez and Morrison and § 4248 pursue the same goal: expanding federal power to prevent violence which occurs mainly, if not solely, intrastate. (J.A. 259). While each of the three laws uses a different enforcement mechanism to reach its goal: imprisonment (Lopez), civil fine (Morrison), or civil commitment (§ 4248), they share the same constitutional flaw–Congress does not have the necessary and proper authority under the Commerce Clause to encroach upon the states’ police power by regulating noneconomic activity that only has tenuous connections to interstate commerce.
I think this is exactly right. The government's argument bites off more than it can chew. It can't be the case that everyone or everything that enters federal jurisdiction at one moment is controlled by federal authority in perpetuity. Further, I think that part of the government's Necessary and Proper Clause reliance is incoherent. The Necessary and Proper Clause needs to be connected to an enumerated power. Hence, the government must prove that the Commerce Clause applies BEFORE the Necessary and Proper Clause becomes relevant. Nonetheless, here is a portion of the government's reply:
The Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18, gives Congress “the right to legislate on the vast mass of incidental powers which must be involved in the constitution.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420-21 (1819). Accordingly, as the Court explained in M’Culloch, “all means which are appropriate” and “plainly adapted” to effectuate Congress’s powers “are constitutional.” Id. at 417, 421 (noting that the power to “‘establish post-offices and post-roads’” entails authority to “punish those who steal letters”).... The power to establish a criminal code and, concomitantly, a penal system, derives from many constitutional sources, including not only the Commerce Clause but also Congress’s authority to establish post offices and post roads, see M’Culloch, 17 U.S. at 421, the authority to establish laws governing bankruptcies, see United States v. Hall, 98 U.S. 343, 346 (1878), and provisions such as those conferring the power to punish counterfeiting, U.S. Const. art. I, § 8, cl. 6, and the power to punish felonies on high seas and offenses against Law of Nations, id. § 8, cl. 10.2 This is because inherent in Congress’s power to create various institutions is the power to preserve and protect them.
I'm truly baffled by the scope of this argument. Post offices? Really? The government is essentially arguing that it has infinite authority to "establish a criminal code and ... penal system." How can the government possibly reconcile this argument with the decisions in Lopez, Morrison, or any number of other cases? Why didn't the Court uphold Gun-free school zones under the Necessary and Proper Clause? The answer is simple: the Necessary and Proper Clause doesn't apply unless the federal government can show that a statute is necessary to effectuate the powers of Congress. Without the Commerce Clause, the government can't show that the AWA provisions are within the "powers of Congress" and thus, you can't skip to the Necessary and Proper Clause argument. The government has put the metaphorical cart before the horse. Even worse, the government openly mocks the defendant's argument on this point in a brazen manner (noting that the defendant is "unable to refute this basic and dispositive point").
The government seems to have abandoned any claim to Commerce Clause jurisdiction in the reply. It distinguishes Lopez and Morrison by saying that the defendant is already in a federal prison and is therefore subject to federal jurisdiction under the Necessary and Proper Clause. If this were just a prison transfer issue during a prisoner's sentence, the government would be right (because the original sentence would have already been under federal jurisdiction under the Commerce Clause). However, the AWA civil commitment transfer only occurs AFTER the prisoner is to be released. At this time, the prisoner is no longer subject to federal control and there is no independent basis for federal jurisdiction. To use an analogy to another situation, if a federal prisoner is released and commits a local theft a year after release, the feds do not have jurisdiction over the new case by virtue of the prisoner's prior sentence. I'm very interested to see how the Fourth Circuit rules in this case because if it sides with the government, I'm not sure where the scope of the Necessary and Proper Clause will end.
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