May 17, 2010

The Supreme Court's new federalism decision.

United States v. Comstock, today's Supreme Court case upholding the federal civil-commitment statute, deals only with the question whether Congress has an enumerated power to make a law that authorizes the continued detention of sexual dangerous or mentally ill persons after they have completed serving their federal prison sentences. That is, the case is not about whether there is an individual right to be free of this deprivation of liberty — only whether the federal government can do it.

On this federalism question, the Court relies on the Necessary and Proper Clause of the Constitution. The persons who are detained have, in every case, been convicted of federal crimes. If there was federal power to create those crimes and to impose criminal punishment for them, then why wouldn't it follow that the federal government could do something more to those individuals? Justice Breyer writes for the majority: "the same enumerated power that justifies the creation of a federal criminal statute... justifies civil commitment...."
[T]he statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.
Justice Kennedy writes separately to note that federalism concerns have been adequately tended to: "this is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power." Ditto Alito: "This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underlying the federal criminal statutes and the challenged civil commitment provision. Here, there is a substantial link to Congress’ constitutional powers."

Justice Thomas dissents (joined by Justice Scalia):
Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States....

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” ... Regrettably, today’s opinion breathes new life into that Clause, and... comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected"... In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grant of authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.”


TMink said...

I am with the dissenters on this one. But I fail to see how a state may legally hold a person after they have served their entire sentence.


David said...

Nice post, in which Althouse shows how the cluelessness of MSM reporting on this issue now up on the internet. But you can't trust Althouse. She has no editor.

David said...

Nice post, in which Althouse shows the cluelessness of MSM reporting on this issue now up on the internet. But you can't trust Althouse. She has no editor.

Geoff Matthews said...

I agree with TMink. If you want to retain criminals of any stripe longer, make the punishment greater BEFORE they commit the crime.

edutcher said...

Easy way to keep people the government doesn't like in stir forever.

"Mr. Meade still has sexual feelings at his age, therefore, he's sexually dangerous".

The Stalinists just settled for crazy.

Chase said...

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.

Fucking idiocy.

Hagar said...

I am not sure why the Federal government needs this, but the States surely do - along with some pressure to see that the necessary institutions are responsibly operated, and there's the rub.
However, the present system of "registered sex offenders" - which might be anyone from serial rapists to teenagers caught necking - required to wear "scarlet letters" for life and enforced by the newsmedia is hardly acceptable, besides it does not work.

virgil xenophon said...

Seems to me that logic, the very wording of the Constitution and the history of the debates surrounding its enactment are all on the side of the dissenters.

tim maguire said...

I should hope that somewhere in there is analysis of the implications of the government imposing punishment greater than that meted out by the court at the time of conviction and sentencing.

Normally this sort of behavior is unconstitutional on its face.

miller said...

I await the usual leftists to be posting how this is an outrage and how Bambi! is dead set against this and it's the EVIL conservatives who did this and - oh wait. It's the liberals who are behind this.


Hagar said...

Judging by the newsmedia today, "justice" is taken as a synonym for revenge, but the state is not interested in revenge, not even on your behalf. The state is interested in keeping the peace, so that its citizens can go about their business.

edutcher said...

Chase said...

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

There's always Plessy v. Ferguson, although the court overruled itself on that without an incredibly bloody war having to be fought.

david7134 said...

This sounds like the British system were they say that you are confined until Her Majesty desires otherwise.

Although the decision is aimed at perverts (who really should be eliminated), it can obviously set an unpleasant precedent for other situations. Also, consider that a large number of sexual crimes have been the inverntion of an over eager DA and sociologist who don't know what they are doing.

If you want longer terms, change the law.

Calypso Facto said...

The direct result--the Feds being able to keep you incarcerated as long as they see fit--is scary, but the indirect result of allowing the power of the "necessary and proper" clause to creep outside of the enumerated powers (to essentially anything the Feds want) is TERRIFYING!

miller said...

But this is the change you wanted when you voted for Bambi.

Matt said...

The ruling was 7 to 2.

But it is hardly a 'liberal' court. And when the ruling is 7 to 2 [with a court that is clearly 5 to 4 in favor of conservatives] you can't very well call this a 'liberal' decision.

More importantly, if this referred to jailed terrorists it would be seen as a great ruling by conservatives. [Although, frankly, I think most conservatives ignored this decision].

ABP said...

I was just thinking today, apropos of nothing at the time, that I've never read an opinion by Justice Thomas that I disagreed with. That opinion is unchanged.

Chase said...

Wrong Matt, on both counts.

5 more conservatively philosophical Justices do not make a "Conservative" Court any more than 5 black Justices make it a "Black" Court. It's where the mean of the Courts decisions lie on the continuum of where the public is that determines the reality of the Court's leanings. And today, the aggregate of this Court's last 3 years put's it overall slightly to the left of American public opinion on the matters it has ruled on.

Second, most Americans could care less how terrorists are detained if they are not American citizens and thus outside the purview of the Constitution's protections. So no, there is no hypocrisy here to be found among conservatives. Nice try though.

This precedent, no matter how obscure, will be the basis in the future for another attempt to detain some other class of people - and you can bet it will be the politically unpopular or the political enemies of someone in power.

If the governement can tell you what to buy - something being tested right now with health care - there will nothing it cannot force you to buy.

If the governemt can detain one person for longer than their served sentence, those in power will sure as the sun rises find ways to extend additonal detention to others.

If the government can take your property for purposes other than direct public works and give to someone else for their profit (Kelo) it will find ways to do more of it.

Bush v. Gore states in the very decision itself that it's a one-time only decision. Yet it is being analyzed and quoted already as precedent and will surely find it's way into otherrulings.

It didn't have to be this way. Scalia and Thomas are correct. The other Justices: pussies. If COngress had real men of forsight and character and the balls to do what's right rather than fall all over themselves to be the most (fill-in the blank) anti-crime, anti- immigrant, pro- immigrant, yad, yada, yada.

This politically active for over 35 years conservative is today ashamed of the Supreme Court of the United States of America, and the true beginning point of the end of America's freedoms.

AST said...

Isn't this what "Hard cases make bad law," means?

But, this doesn't really determine whether the Appellees deserve to be kept locked up does it? Just that the government has that power.

I think that most people confronted with this scenario would want the authorities to have the power to keep dangerous people locked up rather than on the street. The issue for them would be "Are they really that dangerous?"

Paul said...

So if the state deems you are a 'continuing threat' for ANY REASON, then they can keep you in jail forever? That's so, so Stalin!

Will this be expanded later to say, drug users? Or Anarchist? Or Republicans/Democrats?

Now I'm a conservative, but this sword cuts only one way, the way the government decides it cuts. And that makes it so dangerous. As Robert Heinlein said, “it’s a poor weapon that can be pointed only one way.”

It was a bad ruling. A very bad ruling.

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