4th Circuit Got it Right in Comstock

(In the interest of full disclosure, I did help out in a very minor way in the Comstock appeal, so I'm not a wholly disinterested spectator in this case)

The Fourth Circuit issued a unanimous and very noteworthy AWA opinion today in a case that I have blogged about a few times before. In U.S. v. Comstock, the Fourth Circuit affirmed the district court judgment that 18 U.S.C. 4248 of the Adam Walsh Act was unconstitutional because the federal government lacks the authority to enact the provision. Section 4248 concerns the civil commitment of sex offenders after incarceration. This is from the opinion:

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. We therefore affirm the judgment of the district court.

I have been arguing for quite some time that certain portions of the AWA are unlawful exercises of congressional power under the Commerce Clause so I'm extremely happy to finally see a federal appellate court reach a similar conclusion. I think the case against 4248 is stronger than that against SORNA provisions because there simply was no jurisdictional limitation in the civil commitment section. Given the lack of Congressional findings and jurisdictional statement, Congress was basically thumbing its nose at Morrison (which also concerned federal authority over sexual violence). 

Eugene Volokh has chimed in and he is a little more critical of the opinion. From his post:

At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let's set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that's an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety -- which will likely be a federal crime -- and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.

This was certainly the government's position, but I just don't know how you can reconcile such reasoning with the holding in Morrison. The Necessary and Proper Clause alone can never alone provide a basis for federal jurisdiction. It needs another jurisdictional hook, in this case the Commerce Clause. At the time of civil commitment, the prisoner (or in many cases under 4248, the former prisoner) has no connection to interstate commerce. He or she may have at the time of the original conviction, but that time has long since passed. Volokh argues that prevention of future sex crimes might be sufficient, but that rationale was explicitly rejected in Morrison. Even if you believe these particular persons are of a higher risk than the hypothetical tort defendants under VAWA, that risk seems unrelated to a basis for federal jurisdiction. Volokh's argument similarly is in conflict with Lopez. Why couldn't the Necessary and Proper Clause have provided sufficient basis for preventing guns from being possessed near schools since such possession could well increase the risk of gun violence toward children?

Volokh then takes his argument in a different direction (which was not in the briefing that I remember) that presents more difficulty than his initial claim:

One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won't be imprisoned for the crime -- since he's not criminally guilty -- but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that's right, but how does it fit the panel's decision? After all, the person is not guilty, so Congress can't appeal to its power to punish federal criminals (just as the people in this case can't be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel's reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that's the right answer, since Congress lacks the enumerated power to detain them -- but I'm skeptical that this is so.

I think the initial decision to send someone to a civil facility based upon a finding of insanity is clearly tied to the Commerce Clause in the same way a criminal sentence would be. That jurisdictional hook exists based upon the original crime. I think the tougher issue is the decision to release or not release someone from a civil facility upon completion of their treatment. Such cases seem somewhat analogous to the 4248 provisions. However, I think there is a strong argument for the Necessary and Proper Clause in the insanity case because a decision on further treatment or release simply must be made - it is "necessary." In contrast, the 4248 commitment is a wholly separate procedure that bears no relation to the original conviction (as proven by the fact that the government has attempted to use the procedure for persons not convicted for sex offenses).

Volokh concludes by stating that this case is likely headed to the USSC. I'm not so sure. First, there will almost certainly not be a circuit split on this issue simply because almost all of the cases of this type go through the same district in North Carolina as that is the site of the only appropriate federal facility. (Edit: As noted in the comments, there is at least one other facility so the possibility of a circuit split is certainly present. I think it is much more likely now that the case will go to the USSC). Second, since this provision affects so few people, I'm not sure it is worth USSC time. Ultimately, I think the USSC is likely to take up a SORNA case instead simply because there is a much tougher legal issue (since a jurisdictional limitation exists) and a far larger number of people are affected by the statute (500,000+). Either way, it is about time for the Court to clean up the Commerce Clause mess after Raich, so I hope they look at one of the AWA provisions.

Update: Illya Somin, also at Volokh Conspiracy, has added his thoughts as well. Somin, as exhibited in our previous debates about different provisions of the AWA, takes a very broad view of "economic activity" as defined by Raich. Notably, the government did not defend his position in its briefs in Comstock. In fact, the government banked heavily on the Necessary and Proper Clause argument that was well-captured by Volokh's post. From Somin's post:

Finally, Raich restored the so-called "rational basis" test for judicial review of Commerce Clause cases. In plain English, that means that the government doesn't have to actually prove that Section 4248 regulates "economic activity" or that it is part of a broader regulatory scheme. Rather, the government can win simply by showing that Congress might have had some "rational" reason for believing that one of these two conclusions is correct. And by "rational," the Court means merely that there is some possibility, even if a very remote one, that Congress' putative reasoning might be sound.

Unfortunately, the Comstock decision dismisses Raich in a brief footnote that ignores most of the considerations discussed here. The Fourth Circuit does rely heavily on the Court's two earlier Commerce Clause decisions in United States v. Lopez and United States v. Morrison, but essentially ignores the way in which Raich greatly undercuts those precedents by virtually confining them to their facts. I discuss the impact of Raich on Lopez and Morrison in my article linked above; see also this excellent piece by co-conspirator Jonathan Adler.

I continue to think that Somin overestimates the degree to which courts will adopt such an expansive position as to the definition of "economic activity." Even in cases where courts have upheld other provisions of the AWA (specifically, SORNA), they have most often done so under the 2nd Lopez prong. It isn't clear how rational basis applies in such cases. The government briefing in Comstock was confused as to which prong they felt justified 4248 so the rational basis discussion was not really played out. Hence, the 4th Circuit's dismissal of Raich in a footnote seems appropriate.

Comments

[fedpubdefender]

I think you may be wrong about the USSC. This issue is likely to come before the 1st Cir. relatively soon - before the govt decided to confine these people solely at Butler, they were also going to use Ft. Devens in MA, and a number of 4248 cases are being tried in MA Dist. Ct. At least some of those will end up being appealed, and the congressional authority issue has been raised in all of them.

Also, I think there are additional points to be made about the distinction between NGI (or commitment after incompetency finding) cases and 4248. As you rightly note, these cases typically turn on the nexus between the federal crime and the underlying mental illness (i.e., threatening the president because of delusions that he is siccing the CIA on you) and thus there is a greater fed interest than in the 4248 case (because 4248, as you point out, does not statutorily or in practice require any link between the mental condition of the committee and his propensity to commit specifically fed crimes).

Moreover, in the insanity and incompetency cases, the applicable statutes require ongoing efforts by the AG to place the committee in state facilities, whereas 4248 does not.

[Corey Rayburn Yung]

Thanks for letting me know about the alternate facility. I also hadn't considered the insanity and competency cases in my original post. I have changed my post accordingly.

Thanks for reading!

Corey