Necessary and Proper to Extend Civil Committment for Sex Offenders: Comstock Opinion Analysis

In a 7-2  opinion, the Court this morning decided United States v. Comstock, argued in January (our discussion here).  The Court reversed the Fourth Circuit and upheld the constitutionality of a Congressional statute, 18 U. S. C. § 4248, allowing the order of civil commitment for a federal prisoner who is a sex offender, even if the commitment continues beyond the date the inmate otherwise would be released.

The question presented was whether the statute was within Congressional power under the Necessary and Proper Clause, Art. I, § 8, cl. 18. 

McCulloch v. Maryland's famous 1819 formulation was of course invoked:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

In a well-structured opinion, written by Justice Breyer (pictured right) the Court provided five bases for its opinion, which "taken together" justified the Court's conclusion:

1. The Necessary and Proper Clause grants Congress broad powers;
2. This type of legislation is a long-standing Congressional practice: "the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades."
3. The statute is merely an extension to persons already in federal custody  ("If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).
4. Congress properly accounted for state interests and there is no Tenth Amendment issue.
5. The statute has a narrow scope, and although relying on the necessary & proper clause, the "links" to an "enumerated Article I power are not too attenuated." 

As to the fifth reason, Breyer does not cite a specific enumerated power to which the necessary and proper clause "links."  This lack provides much of the substance of Thomas' lengthy dissenting opinion:

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders.  Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

Thomas also takes issue with the majority's dismissal of any Tenth Amendment problem, arguing that the federal statute "closely resembles the involuntary civil-commitment laws that States have enacted under their parens patriae and general police powers. " 

Breyer's opinion for the Court bracketed any due process concerns, citing Kansas v. Hendricks, 521 U. S. 346 (1997).  However, there is an obvious connection between the Court's narrow reading of due process in Hendricks and the expansive reading of the Necessary and Proper Clause in Comstock. Indeed, the Court seems keen to uphold laws regulating so-called  "sex offenders."

RR