"As it Turns Out, There Are Limits on Congress’s Power"

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.

Comments

[Dave]

To be fair The Cato Institute is a libertarian think-tank and will more often than not side with citizens in cases of gross government encroachment.