Wednesday, December 8, 2010
Garrick B. Pursley (The University of Toledo College of Law) has posted Penal Deference and Other Oddities in United States V. Comstock (Duke Journal of Constitutional Law & Public Policy, Vol. 6, No. 1, 2010) on SSRN. Here is the abstract:
In upholding a federal statute authorizing civil commitment of "sexually dangerous" former federal prisoners, the Supreme Court in United States v. Comstock concluded that the Constitution’s Necessary and Proper Clause permits Congress to exercise implied powers that are inferred from other implied powers and dismissed the long-lingering view that Congress’s only implied powers are those directly derivable from enumerated powers. The Necessary and Proper Clause is rarely invoked, the Court has not previously embraced the narrower construction, and the trend for nearly a century has been to construe Congress’s Article I powers expansively. Thus, although Comstock has significant implications for the scope of national power, the Court’s conclusion is not terribly surprising and its implications are fairly clear. The surprising aspect of Comstock is its reasoning. In this brief essay, I discuss three oddities in the Comstock majority opinion: a permutation on conventional accounts of constitutional "dialogue" between Congress and the courts; a foray into the relationship between tort duties and the proper scope of constitutional power; and deference to the Executive’s interpretation of the statute that seems contrary to settled rules of deference and statutory construction. The implications of these analytical twists for constitutional theory and practice are less clear, but potentially significant. Comstock’s full impact, therefore, may be more complex and difficult to predict than it at first appears.