United States v. Comstock: Some Early Observations

I want to thank Professor Yung for inviting me to share my thoughts here. Today the U.S. Supreme Court handed down an opinion in United States v. Comstock (opinion here) upholding the federal sex offender civil commitment statute (18 U.S.C. § 4248) under the Necessary and Proper Clause. I will have more to say about this decision in the coming days, but I thought I should post some initial observations of the decision.

First, it is not surprising that Justice Breyer authored the majority opinion, since he is known to be the Justice least likely to invalidate federal law. Justices Kennedy and Alito concurred only in the decision. As predicted, Justices Thomas and Scalia dissented.

Second, the majority opinion suggests that there may be future constitutional challenges to Section 4248. Specifically, the majority states:

"We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved."

Finally, I found it interesting that, unlike in Gonzalez v. Raich — where several states argued for state regulation of medical marijuana separate from federal regulation — in Comstock a majority of states argued in favor of federal civil commitment for sexually dangerous persons. Justice Thomas' dissent suggests that the states' motivation might be financial:

Nevertheless, 29 States appear as amici and argue that § 4248 is constitutional. They tell us that they do not object to Congress retaining custody of “sexually dangerous persons” after their criminal sentences expire because the cost of detaining such persons is “expensive” — approximately $64,000 per year — and these States would rather the Federal Government bear this expense. Brief for Kansas et al. 2; ibid. (“[S]ex offender civil commitment programs are expensive to operate”); id., at 4 (“these programs are expensive”); id., at 8 (“[T]here are very practical reasons to prefer a system that includes a federal sex offender civil commitment program . . . . One such reason is the significant cost”).

The cost of civil commitment might be high for states, but does that give the federal government the power to pursue civil commitment in this case? As the dissent points out, "Congress’ power . . . is fixed by the Constitution; it does not expand merely to suit the States’ policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds." Indeed, a "good" policy may nevertheless be unconstitutional.