Tuesday, January 12, 2010
The Supreme Court on Tuesday heard oral arguments in U.S. v. Comstock, the case testing Congress's power under the Necessary and Proper Clause to authorize indefinite civil commitment of "sexually dangerous" persons beyond their prison term. We've reviewed the case here, here, and here; the Fourth Circuit's opinion (holding that Congress lacks authority) is here; the Eighth Circuit opinion in U.S. v. Tom (holding that Congress has authority) is here.
The case involves Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 ("4248"), which authorizes the federal government to detain a federal prisoner designated as "sexually dangerous" beyond his or her prison term, potentially indefinitely. (One of the respondents in the case received such designation on the day he was due for release.)
The government maintained throughout the litigation that Congress has authority based on the Necessary and Proper Clause alone--that such detention is "necessary and proper" to run the federal criminal justice system. The government thus sees post-sentence civil commitment as part and parcel of its role as custodian of federal prisoners.
Respondents consistently argued that the Necessary and Proper Clause can only support one of Congress's enumerated Article I powers--and not a program that is authorized by one of those powers. Respondents see post-sentence civil commitment as an entirely new exercise of power, divorced from the original prison sentence and the government's role as custodian, and no enumerated power (even with the help of the Necessary and Proper Clause) supports such commitment.
The core issue--and the focus of oral arguments on Tuesday--is the scope of the Necessary and Proper Clause.
Solicitor General Kagan sets out the government's position in this exchange with Chief Justice Roberts and Justice Scalia:
Chief Justice Roberts: Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted? In other words, when the sentence is done?
General Kagan: Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way --
Justice Scalia: But you said no. I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying on.
General Kagan: I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.
Transcript at 7-8. Here's another exchange between Kagan and Scalia on the same point:
Justice Scalia: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the constitution.
Now why is this necessary for the execution of any Federal power? . . . Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment.
General Kagan: The Court has always said, Justice Scalia, that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal--in that criminal justice system, are not released irresponsibly.
Transcript at 13-14.
Kagan argued that Congress adopted 4248 to solve a "transitional" problem: States's refusals or inabilities to accept or deal with sexually dangerous federal prisoners coming to the end of their federal sentences. She relied upon two other long-standing federal statutes authorizing federal civil commitment--one for mentally ill federal prisoners and one for mentally ill acquities--both of which were designed to solve similar transitional problems.
Kagan argued that the federal government would surely have the power to detain federal prisoners who contracted a disease (tuberculosis, in her hypothetical) while in federal prison beyond their prison sentence. She argued that the government probably had a similar power to detain ex-military in a similar situation. Both are based upon the government's special relationship with the detainees. (See also Transcript pp. 22-23, exchange with Justice Sotomayor.)
Justices Scalia and Sotomayor seemed to search for an independent congressional authority, or special relationship, to support post-term civil detention, recognizing that the Necessary and Proper Clause traditionally complements enumerated powers, not federal programs that themselves are supported by enumerated powers. Scalia added a federalism concern: At one point, he questioned whether the government's position was a "recipe" for the federal government taking over everything; at another point, he raised the Tenth Amendment as a limitation on congressional authority over this area of traditional state concern. Sotomayor added a civil liberties concern, asking whether the government could articulate any limits on its power to detain. (Kagan answered that due process limited the government.)
Alan Dubois, for the respondents, argued that civil detention beyond the original prison term exceeded congressional authority largely for the reasons articulated by Justice Scalia in the quotes above. Dubois argued that civil detention beyond the original term was a new act--not an extension of the government's power to run a criminal justice system--and therefore required independent Article I power. The Necessary and Proper Clause--which acts only in conjunction with another enumerated power and alone doesn't authorize anything--was simply not up to the task.
Dubois distinguished the government's other civil commitment powers as directly related to its power to run a criminal justice system (and therefore directly supported by an enumerated power). And he denied that the government would have power to quarantine or detain ex-prisoners who acquired a disease while in federal custody.
Dubois faced a line of questioning from Justice Breyer about the federal government's power to create mental health hospitals and, therefore, its authority to detain mentally ill individuals. Justice Scalia supported Dubois by distinguished between Congress's power to fund and create such hospitals (which might be perfectly acceptable under the Spending Clause) and its lack of power to detain mentally ill individuals.
Dubois spent a good deal of time answering questions about alternatives to this bill--other ways that Congress might have achieved its goals. For example, Dubois at several points argued that Congress would have had power to authorize prison terms or sanctions at the time of sentencing, but not after a prisoner had been released. Here's an exchange with Justice Sotomayor:
Justice Sotomayor: Could--what would happen if Congress said, as part of a sentence, a judge could incorporate a civil commitment finding and say: You are going to serve X amount in jail, and Y amount, and then we are going to civilly commit you indefinitely, because as of today, I am finding you a sexual predator subject to a mental illness.
Would that be constitutional, and if not, why not?
Mr. Dubois: Well, that would not be constitutional, Justice Sotomayor, because of the indefinite nature of the commitment. You can envision a system--and we had that type of system in the '50s, '60s, and '70s--of indetermine [sic] sentencing, where--
Justice Sotomayor: No, I--let's assume it incorporates all the protections of--this statute, subject to periodic review.
Mr. Dubois: So if we have an indeterminate-type sentence where you--you get a sentence of ten years and you are periodically reviewed to see if you are safe to be released, of course that is constitutional.
Justice Sotomayor: So it's constitutional because it's part of the sentence?
Mr. Dubois: That's exactly right, Your Honor. It's a part of the sentence. It's part of the punishment for the crime which brought you into custody.
Transcript at 46-47.
Dubois similarly agreed with Justice Scalia that Congress might have achieved its goals through its spending power--that Congress could have funded state efforts to civilly commit sexually dangerous ex-prisoners. Justice Stevens sounded frustrated with these lines and repeatedly brought the argument back to thisbill, helping Dubois move from formalistic positions on the way the bill was written to his core argument on the Necessary and Proper Clause.
Chief Justice Roberts brought a helpful big-picture, practical perspective to the arguments, illustrated by this exchange:
Mr. Dubois: Any time the Federal government is going to release these--a person they believe to be violent or dangerous, they are required to warn the Attorney General of the State within a certain period of time before their release.
At that point, I do believe it becomes a problem of the State polity. If the State governor is going to be cavalier about that type of release, then I think the answer for that lies in the voters of that State, to say, no, we want you to take this problem seriously and --
Chief Justice Roberts: Well, he's not going to be cavalier. He's not going to have--he's going to say, don't do it. This is a dangerous person, the Federal government, don't release him.
Mr. Dubois: And he's--
Chief Justice Roberts: And you want the Federal government to be in the position to say, well, we have to.
Mr. Dubois: Exactly. The Federal government has to, and at that point, the State must make the hard political decision. Do we want to take this person on, spend the money necessary--
Chief Justice Roberts: Well, it may be the Federal government's hard political position. They are the person holding them, and the Attorney General is saying, don't release him, and then the Federal government is going to make the decision, well, we have to.
Mr. Dubois: And so, in that sense, it is no decision at all because the Constitution requires that they be released.
Transcript at 39-41.
In all, the arguments seemed to set the stage for a ruling on the scope and breadth of the Necessary and Proper Clause--the argument that the government consistently put front and center, throughout the litigation. Because the Court so rarely (if ever) rules on the precise contours of this clause alone, this could be a quite significant case on congressional authority.