More Thoughts on the Comstock Case

The recent SCOTUS Eighth Amendment opinion in Graham has largely overshadowed what I view as a more important case - the Comstock opinion that I noted the other day, a case about the federal government's power under the Necessary and Proper Clause.

It's not as dramatic as a matter weighing life sentences for minors.  It's also not nearly as straightforward.  But in the end, the court's decision in Comstock has the potential to permit the exercise of a greater sum of total federal power over individuals than before.

As the dissent points out, the majority opinion rewrites the Necessary and Proper analysis in favor of the federal government and further undermines any pretenses of a limited federal government of enumerated powers.  Because the Necessary and Proper clause, Article I, Section 8, is not an individual grant of power, it cannot be used in isolation - it requires another enumerated power working in conjunction to be activated.

The majority opinion must perform some gymnastics to find that other enumerated basis that would make it necessary and proper for the federal government to continue to detain "sexually dangerous" persons beyond the completion of their sentences.  Unfortunately, the majority permits the federal government to take actions that are too attenuated from a power grant, that do not tie back clearly enough to some second enumerated power.

I was surprised to see Chief Justice Roberts join in Justice Breyer's majority opinion without any clarifying or qualifying concurrence.  Without such a caveat, his joining in the opinion in full should be seen as a revelation about the Chief Justice's commitment to limited government.

Justice Thomas' dissent (joined in large part by Justice Scalia...who seems to have swung onto a different Necessary and Proper trajectory than the one he traced in his Raich concurrence) does a good job of pointing out the sloppiness of the majority's opinion.  Even if the end sought, the protection of society from "sexually violent" persons, seems commonsensical and desirable, it's not necessarily constitutional:

"But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

He also notes that the federalism concerns in play are real.  States failing to play their role in protecting citizens from "sexually violent" persons after their sentences have concluded is not a legitimate excuse for the federal government assuming extra-constitutional power:

"Congress’ power, however, is fixed by the Constitution; 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."

Justice Thomas also highlights the need to maintain the distinction between the limited, enumerated powers of the federal government and the general, police powers of individual states - a distinction crucial to the continued diffusion of the power exercised over individuals:

Regrettably, today’s opinion breathes new life into that Clause, and-the Court’s protestations to the contrary notwithstanding —comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected,” Lopez.  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.” McCulloch.

Justice Alito concurred, but I found his opinion, arguing essentially that the federal government causes a "sexually violent" person to a be threat upon release (which therefore requires continued civil commitment), somewhat unhelpful - a prime example of someone seemingly more concerned with the end result than with whether the statute actually did comport with the constitution and any tradition of limited government.

Justice Kennedy's concurrence was interesting in that it laid out a helpful foundation for a strong dissent...and then briefly capitulated to the same result as the majority at the end (defending it as applying only to a limited and discrete group of people).  In distinguishing his position from that of the majority, he basically says the majority is wrong on the 10th Amendment - it approaches the issue improperly by presuming federal power:

"I had thought it a basic principle that the powers reserved to the States consist of the whole, undefined residuum of power remaining after taking account of powers granted to the National Government. The Constitution delegates limited powers to the National Government and then reserves the remainder for the States (or the people), not the other way around, as the Court’s analysis suggests."

And he goes even further yet - to a position that I would have thought would necessarily compel him to dissent and find the statute involved unconstitutional:

"The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowing from the federal system are of no import when defining the limits of the National Government’s power, as it proceeds by first asking whether the power is within the National Government’s reach, and if so it discards federalism concerns entirely. These remarks explain why the Court ignores important limitations stemming from federalism principles."

He gets to the same result as the majority, but disagrees with its reasoning.  That's a standard concurrence.  And it's very helpful cautionary language tied to first principles.  But it seems to me the fundamental nature of his concerns with the majority reasoning are such that they would normally induce a justice to dissent.

Overall, the majority opinion's reasoning is unfortunate, as is its result.  It's perhaps preferable for a "sexually violent" person to remain civilly committed beyond his sentence if he constitutes a true threat to society.  But it's not necessarily in alignment with our form of government.  And the Court has now opened the door for the federal government to detain someone beyond the duration of a sentence - and permits the states to abdicate their roles relative to the person post-sentence upon release (whether they decide to continue to commit the individual or not).