Friday, January 9, 2009
The Fourth Circuit yesterday ruled in U.S. v. Comstock that Congress lacked authority under the Commerce Clause to enact 18 USC sec. 4248, which authorizes the federal government to place in indefinite civil commitment "sexually dangerous" persons even after they've completed their entire prison sentence. The AG need only certify that a person in federal custody is "sexually dangerous"; this is enough to trigger an automatic stay of release well past their prison term for those in the case.
Many thanks to Corey Yung of the Sex Crimes Blog for the tip.
1. The government's apparent lack of Commerce Clause support for 4248 is stunning in light of Lopez, Morrison, and even Raich. It's not that they needed much. But there's just nothing. There is apparently no record linking sexual dangerousness to interstate commerce; there's no jurisdictional element; and sexual dangerousness is clearly not economic (at least under Morrison). The government doesn't seem to have done much to present the court even with any conceivable link to commerce. And this isn't a part of a broader regulatory scheme, at least not in the Raich sense. (It appears the government didn't seriously press this anyway.) Even if Raich eased the government's burden from Lopez and Morrison--and pulled back to rational basis review--the government's lack of commercial link here is still, well, stunning. It looks like either the government is testing the very outer limits of its Commerce Clause authority (but that's belied by the government's lack of serious argument on Raich); the government doesn't care about 4248; or somebody forgot to tell Congress about Lopez and Morrison.
2. The government's reliance on the Necessary and Proper Clause is equally stunning, and bewildering. Judge Motz (her emphasis):
Yet the Government attempts to defend the validity of sec. 4248 largely by direct reliance on the Necessary and Proper Clause. But that provision, by itself, creates no constitutional power . . . .
What is less understandable is the Government's heavy reliance on the Necessary and Proper Clause, standing alone, as a source of congressional power. Of course, as the Government contends at length, the Necessary and Proper Clause reaches broadly, but it does so only to effectuate powers specifically enumerated in the Constitution. Ordinarily, this would end our discussion of the [Clause]. But because the Government's defense of sec. 4248 relies almost exclusively on that Clause, we briefly address each of its specific arguments on this point.
Here's the upshot of the government's argument, as stated by Judge Motz (again, her emphasis):
Were we to accept the Government's logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential conducted violated federal law.