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“Broad authority” under Necessary and Proper Clause allows federal civil commitment of sexually dangerous individuals

Below, Eric Hansford of Stanford Law School recaps yesterday’s opinion in United States v. Comstock.  Earlier coverage of the case is available here.  Check the Comstock (08-1224) SCOTUSwiki page for additional updates.

Yesterday the Court issued its decision in United States v. Comstock.  At issue in the case was whether Congress exceeded its power when it enacted 18 U.S.C. § 4248, which authorizes federal district courts to order the civil commitment of sexually dangerous federal prisoners even after they have served their criminal sentences.  By a vote of seven to two, the Court – in an opinion by Justice Breyer – held that Congress had the power under the Necessary and Proper Clause to pass Section 4248.  Chief Justice Roberts and Justices Stevens, Ginsburg, and Sotomayor joined Justice Breyer’s opinion, while Justices Kennedy and Alito filed separate opinions concurring in the judgment.  Justice Thomas filed a dissenting opinion that Justice Scalia joined in part.

Section 4248 allows individuals in the custody of the Bureau of Prisons to be civilly committed after they would otherwise be released if: 1) they have engaged (or attempted to engage) in sexually violent conduct or child molestation, 2) they suffer from a serious mental illness, and 3) they would have “serious difficulty” refraining from sexually violent conduct or child molestation if released.  If, after a hearing, a federal district court finds by clear and convincing evidence that all of these criteria are satisfied, the individual is committed to the custody of the Attorney General, who must make “all reasonable efforts” to get the state in which the individual was tried, or, alternatively, the state in which he is now domiciled, to take him.  But if the Attorney General is unsuccessful, the individual is then committed to a treatment facility, where he will remain until he no longer represents a danger to others or a state assumes responsibility for the treatment.

The respondents in this case are federal prisoners who were about to be released when the government instituted civil commitment proceedings against them under Section 4248.  When the respondents challenged (among other things) the constitutionality of the government’s actions, the district court held (again, among other things) that the statute exceeded Congress’s powers under Article I of the Constitution, and the Fourth Circuit affirmed on this ground.

The Supreme Court granted certiorari, and yesterday it reversed.  In the majority’s view, “five considerations, taken together,” compel the conclusion that Article I’s Necessary and Proper Clause grants Congress authority sufficient to enact Section 4248.  First, the Court emphasized, the Necessary and Proper Clause grants Congress “broad authority,” requiring only that a statute “constitute[] a means that is rationally related” to the implementation of an enumerated power.  This can build on itself: Congress has broad powers to create federal crimes to further various enumerated powers.  Congress can then ensure enforcement of these crimes by imprisoning offenders in federal prisons.  In turn, it can take action to guarantee the safety of those who may be affected by federal imprisonment, including those in surrounding communities.

Second, Congress has long enacted prison-related mental health statutes.  Section 4248 parallels the older Section 4246, which authorizes the postdetention civil commitment of federal prisoners who are deemed mentally ill and dangerous.  Third, because the federal government is a custodian of its prisoners, the Government has “sound reasons” (and perhaps a duty) to protect the public from the dangers created by an individual’s release from federal custody.  Fourth, Section 4248 properly accommodates state interests: because the Attorney General is required to encourage states to take custody of the individual, the statute does not invade or limit state sovereignty – an argument supported by twenty-nine states, who filed an amicus brief urging the Court to uphold the statute.  Nor does the statute violate the Tenth Amendment because authority that falls under the Necessary and Proper Clause is not “reserved to the States.”  Fifth and finally, Section 4248 is narrow, applying only to a small fraction of prisoners.  And the connection between Section 4248 and an enumerated power is not too attenuated; as numerous past cases show, Congress’s Necessary and Proper Clause authority reaches beyond powers one step removed from an enumerated power.  The majority also emphasized that it was not deciding claims of other constitutional defects, including a Due Process Clause violation that the District Court identified, which could potentially be raised again on remand.

Justice Kennedy concurred in the judgment.  In a separate opinion, he emphasized that the Necessary and Proper Clause has limits, and he sought to distance himself from what he regarded as some of the Court’s broadest language.  In particular, he underscored that the “rational relationship” test at issue here is much more demanding than the “rational basis” test used in due process cases.

Justice Alito also concurred in the judgment.  In his view, there is a “substantial link” between Section 4248 and Congress’s enumerated powers, thereby rendering the statute a necessary and proper means of implementing federal criminal law statutes authorized by Congress’s other enumerated powers.

On the other hand, Justice Thomas’s dissent asserted that Section 4248 cannot satisfy the Necessary and Proper Clause because it does not execute any enumerated power.  Thomas also criticized the majority’s “novel” five-factor test: not only is the test unsupported by either the text of the Clause or the Court’s precedent, he contends, but it also provides little guidance on how to apply it.  Finally, the Constitution places limits on Congress’s power; the fact that states may support a particular statute – as twenty-nine do here – cannot render constitutional a statute that exceeds Congress’s enumerated powers.