Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

Yesterday I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief. As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.

At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.” The problem is that, while states have what’s called a “police power” to handle this sort of thing — to appropriately deal with with threats to society from the dangerously insane and so forth — the federal government’s powers are limited to those enumerated in the Constitution. And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.

The government, having abandoned its Commerce Clause argument — a big loser in the lower courts — relied at the Supreme Court on the Necessary and Proper Clause. This clause says that Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution [the specific powers listed in Article I, section 8], and all other powers vested by this Constitution in the government of the United States.”

In other words, we have a government of delegated and enumerated, and therefore limited powers. As Ryan Lirette put it in National Review Online last week, ”Congress may not search every corner of our country looking for problems to vanquish. Instead, Congress must be able to justify each law it passes with a specific congressional authorization.”

The solicitor general contends that civilly committing the sexually dangerous is “necessary and proper” to regulating the federal prison system — which itself is not an enumerated power but ancillary to enforcing federal criminal laws that Congress is appropriately empowered to make. At the argument, Solicitor General Kagan further justified the relevant provision as related to “responsibly” releasing federal prisoners.

I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner — for reasons I describe in my recent podcast — and Justice Scalia also wasn’t convinced. Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions. Instead, our system of government — our constitutional rule of law — provides for islands of government involvement in a sea of liberty. It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces. Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan DuBois. Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power — and one would expect (the silent) Justice Thomas to be in that category as well. Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely — including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power — so she could go either way. Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active — seeming to question both sides equally — so it’s hard to predict how the Court will ultimately rule.

CP: Cato's blog

Cato's Legal Arguments Worry U.S. Government

Last month, Cato (joined by Cato senior fellow Randy Barnett) filed a brief in United States v. Comstock, a case regarding the constitutionality of a law authorizing 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.

As I wrote in a previous blog post, “the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers.” Moreover, the government’s reliance on the Necessary and Proper Clause (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 end simply cannot fit into one of the enumerated powers.

While we of course hope that the Supreme Court pays attention to our brief, we know that Solicitor General Elana Kagan, at least, is concerned enough about our arguments to spend several pages of the government’s reply brief addressing them (see pages 5-9).
For more on Comstock, see its case page on SCOTUSwiki, which now has all the briefs and will around the Jan. 12 argument date be populated with argument previews and reviews, as well as links to media coverage.

CP: Cato's blog

Battle of the Ilyas and More on the Chicago Gun Case

Josh Blackman, my coauthor on “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” has inaugurated a series of podcasts devoted to law and liberty. He’s already has an interview with PLF’s Timothy Sandefur (also a Cato adjunct scholar) and the Independence Institute’s David Kopel (also a Cato associate policy analyst). Tim authored Cato’s brief in McDonald v. City of Chicago, the case seeking to extend Second Amendment protections to the states — and about which I blogged yesterday.

Well, now Josh has come up with a bit of a twist on the podcast medium: he invited George Mason law prof Ilya Somin (also a Cato adjunct scholar) and me to engage in a contest based on the trivia challenge Sixth Circuit Judge Danny Boggs issues his clerkship applicants. The winner of this “Battle of the Ilyas” would receive the free and exclusive right to the Ilya name — because apparently it’s too confusing to have two libertarian lawyers named Ilya in the same metropolitan area/professional circle. It was a lot of fun, and while I won’t tell you the outcome here, you can easily find that out and listen to the conference call we had about it.

Finally, after this “Battle of the Ilyas,” Josh asked me to record a podcast about McDonald — which inspired our article — and United States v. Comstock (another important case in which Cato filed a brief, and which I blogged about here). Happy listening!

CP: Cato's blog

As It Turns Out, There Are Limits on Congress's Power

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.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. 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.

As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,” than the government’s unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit’s rejection of this blatant government overreach.

United States v. Comstock will be argued on January 12. You can read Cato’s brief here.

CP: Cato's blog