May 17, 2010

"Very bad news for constitutional federalism."

Says Ilya Somin about today's decision in Comstock...

The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
Though "the statute involved here is somewhat peculiar,"  so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.
To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....
But, "the case has little or no import for the constitutional challenges to the individual health insurance mandate," says Randy Barnett:
Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.
The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...
In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....

10 comments:

Chase said...

I stand by what I said in your earlier post today about this:

This is frankly the scariest fucking decision ever in the history of the Supreme Court, Dred Scott being the only exception.

If you trust 9 people to determine whether or not you can be detained beyond the original sentence of the crime - the job of the geniuses in Congress and legislatures to consider in advance - then they can do it about anything.

This is the day that opens the door to future political detentions in America. Say what you want, but it's only a matter of time before it happens. Seriously - what will restrain future Justices from finding such a need. It began this day.


First Kelo, now this. And, the Obama Admin wants to help by pushing back against Miranda.If the Congress would be made up of men with balls and not cunts and wannabe cunts, this wouldn't be a problem.

Your grandkids will politically suffer depending on which side they are on and the flavor of the day. Bank on it.

"Conservative" Supreme Court? Give us a break!

Sky Lawyer said...
This comment has been removed by the author.
Sky Lawyer said...

I read this blog every single day; I love it. This is my first comment, because I agree 100% with Chase. This Comstock opinion is terrifying.

There was muttering in some conservative circles in 2005 that Bush chose Roberts and Alito because they would be stalwart allies on the question of executive power in national security matters. They have proven to be just that. But the problem is that if you have jurists who are comfortable with "extra-constitutional" power in one arena, they are likely to be seduced by it in other areas. This is particular true where, as in Comstock, you have horrible facts. So I'm not surprised that Roberts and Alito are on board. Disappointed, yes, but not surprised.

At this point it's hard to deny that Thomas and Scalia are the only Justices with any coherent philosophy. You can argue whether that's a good thing or a bad thing, but it's true.

For an entertaining read, check out the spat between Stevens (in his concurrence) and Thomas in the Graham v. Florida case, on the notion of "evolving standards of decency." Thomas basically calls out the majority for pulling stuff out of their backsides. Stevens more or less admits it, and embraces it. I'm not sure Kagan would be any worse.

Between Graham and Comstock it was an historically bad day for the Court.

Seven Machos said...

I guess what I don't understand about this case -- and I have not read the opinion -- is why the challenge is based on federalism when there is all manner of other protections that seem to prevent holding someone after they have served their sentence. Then again, why didn't the judges bring these up sua sponte?

Superdad said...

so what is left - a revival of the doctrine of nullification with a specific limit on its application to situations where the state has determined that the feds have exceeded the enumerated powers?

edutcher said...

Chase said...

...

"Conservative" Supreme Court? Give us a break!

More than a few people have made the observation that Roberts and Alito are big government conservatives who rarely challenge policy. Makes you wonder why Jeremy and Company whine so much - unless any decision less than unanimous makes them feel insecure.

Again, if there's ever a big enough collapse in this country so that things have to be rebuilt from the ground up and people start asking how we got there, I think judicial review will be high on the hit parade.

Eric said...

Again, if there's ever a big enough collapse in this country so that things have to be rebuilt from the ground up and people start asking how we got there, I think judicial review will be high on the hit parade.

I'm sure what they'll end up deciding, if that actually happens, is the federal government didn't have enough power to prevent the collapse. People see the causes they want to see when something bad happens.

The states have become little more than administrative districts, and I don't see much inclination on the part of voters to change that.

Methadras said...

I've read the opinion and I'm trying to understand and distill it down to this. If you are convicted of a federal crime (and according to the opinion, it basically leaves open any federal crime), you can run out your sentence and if warranted based certain criteria (aka violent predilections, threats, whatever) can be held and detained beyond the sentencing structure you were given? How could that be interpreted under The Necessary and Proper Clause? I understand it's just a name, but I'm taking it literally here at this point. Necessary and Proper in this context means that it has to be necessary and it also has to be proper. If none of these condition fit, then it doesn't happen or it is law like this interpreted to become necessary and proper?

The way I read the clause is that "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ..." as being that congress can expand its own powers to make laws as it sees fit regardless of Constitutionality because it would have been deemed Necessary and Proper. I don't like this one bit. If I read Comstock right, in essence the SCOTUS just allowed unlawful detainment after the sentence was carried out. If that's the case, then why bother with the parole process? If states get to determine who is allowed to serve out a sentence beyond what was given, then who determines who gets it and for how long and under what criteria? Furthermore, federal felony convictions are a lifetime scarlet letter. What happens if after you've served your sentence and years later it's determined you are a threat to someone or society and you haven't committed a crime. Can the fed lock you up again? This seems to totally trump double jeopardy. What about federal misdemeanors? I think Lady Justice just fell over on the slippery slope.

Kyle said...

@ Superdad, the answer: the Court only addressed this single issue (whether this falls within an enumerated power), because the lower court only ruled on that issue. The Court reversed and remanded, where on remand the lower court must consider those other issues (e.g. whether this complies with the Double Jeopardy Clause of the Fifth Amendment).

The real problem with federalism and society today is that people don't think of the federal government as limited by enumerated powers, and it's not too surprising that living constitutionalists will "live" those safeguards out of existence.

themightypuck said...

This isn't so much about enumerated powers as it is the test to decide things. The court is sort of tacking on release to incarceration so if incarceration is ok so is some complex release formula. The problem is that to make this so they pretty much seem to be supporting a rational relationship test. This isn't necessarily as scary as it seems since at the end of the day the people are still in charge.