The Mighty Sweeping Clause and Expansive Federal Power

The Supreme Court's 7-2 ruling yesterday in U.S. v. Comstock, upholding the government's ability to order "sexually dangerous persons" detained beyond their federal prison term, is a significant statement on the power of the federal government.  The case has important ramifications for other public debates and cases on the scope of federal authority and federalism--particularly on the individual health insurance mandate and health care reform's alleged violation of state sovereignty under the Tenth Amendment.

There are four aspects of the Comstock ruling that ought to catch our attention:

1.  The Scope of the Sweeping Clause.  The five-member majority (Justice Breyer, who wrote for the Court, Chief Justice Roberts, and Justices Stevens, Ginsburg, and Sotomayor) validated the broad and sweeping authority of the Necessary and Proper Clause, reviving the expansive language given to that Clause in McCulloch v. Maryland and citing to that case throughout the ruling.  (This itself is notable.  According to a Westlaw search, the Court has "examined" or "discussed" McCulloch in only nine other cases in the last 20 years.  The Comstock Court, in contrast, uses that case aggressively.)  The Court adopted an extremely deferential version of the McCulloch test for the Necessary and Proper Clause, writing that "Congress could have reasonably concluded . . ." in support of the Act.  And the Court ruled that the Clause could support a federal Act toward the end of another federal program that itself was predicated on an enumerated power in Article I, Section 8--that an Act under the Necessary and Proper Clause can be more than once removed from an enumerated power.

The upshot of the majority ruling is that the Necessary and Proper Clause can support broad federal action beyond the enumerated powers in Article I, Section 8, as long as the ultimate end (and not merely the immediate end) is one of those enumerated powers.  And moreover, as discussed below, it's up to Congress, not the Court, to decide the limits of this power.

Justices Kennedy and Alito would have read a narrower Necessary and Proper Clause, but they nevertheless joined the Court in its conclusion that the Clause supported this legislation.

2.  Deference to Congress.  The five-member majority read the Necessary and Proper Clause as giving Congress, not the Court, the power to determine the scope of its authority.  The Court deferred to Congress using something like Williamson v. Lee Optical rational basis review, writing that "Congress could have reasonably concluded . . ." in support of the legislation. 

This is the kind of deference we haven't seen in the Court's recent Commerce Clause jurisprudence (with the possible exception of Gonzales v. Raich).  And here it's notable that Justice Breyer wrote for the Court: Justice Breyer also wrote the lengthy and detailed dissents in U.S. v. Lopez and U.S. v. Morrison showing how the legislative evidence supported a rational basis for finding that the regulated activities in those cases substantially affected interstate commerce--why the Court should have deferred to Congress in those cases.  Comstock is something of a vindication of the Breyer position as applied to the Necessary and Proper Clause.

3.  A "Living" Constitution, Expanding Powers.  The five-member majority was unconcerned that detaining federal prisoners as "sexually dangerous persons" was an idea unanticipated by the Framers.  The Court quoted New York v. U.S. and McCulloch in writing that "the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role," and that ours is "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." 

4.  No Infringement upon State Sovereignty.  The five-member majority reaffirmed the Tenth Amendment as a truism, writing that "[v]irtually by definition, [powers in Article I, including the Necessary and Proper Clause] are not powers that the Constitution 'reserved to the States,'" and that nothing in the Act intruded into the powers of the states.

Taken together, these aspects of the Comstock ruling reflect broad (and expanding) federal authority, with little concern for federal infringement upon so-called "states' rights."  As the cases challenging health care reform move through the lower courts, we'll see how this plays out.  But it's hard to imagine how, with this new 7-2 ruling, this Court wouldn't also uphold health care reform (including the health insurance mandate).

SDS