United States, Petitioner v. Graydon Earl Comstock, Jr., et al

United States, Petitioner v. Graydon Earl Comstock, Jr., et al
(Decided May 17, 2010)

Justice Bryer delivered the opinion of the Court --

A federal civil-commitment statute (18 U. S. C. §4248) authorizes the Department of Justice to detain a mentally ill, sexually federal prisoner beyond the date the prisoner would otherwise be released. authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released.

We have previously examined similar statutes enacted under state law to determine whether they violate the Due Process Clause. But this case presents a different question. Here we ask whether the Federal Government has the authority under Article I of the Constitution to enact this federal civil-commitment program or whether its doing so falls beyond the reach of a government “of enumerated powers.”

We...

[...the majority of the Court: Justices Bryer, Roberts, Stevens, Ginsburg, Kennedy, Sotomayor, and Alito...]

...conclude that the Constitution grants Congress the authority to enact §4248 as “necessary and proper for carrying into Execution” the powers “vested by the Constitution in the Government of the United States” [in] Article 1, Section 8, Clause 18.

TO REFRESH...

Article 1, Section 8, Clause 18 of the U.S. Constitution reads:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

So... what are these foregoing Powers granted via the preceding 17 other Clauses of Article 1, Section, 8...

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Nope... nothing about sexual predators or indeed any type of criminal...

Clause 2: To borrow money on the credit of the United States;

Nope...

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Nope...

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Nope...

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Nope...

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Nope... nothing about sexual predators; does deal with counterfeiting... but nothing about sexual predators or other "non-counterfeiting" criminals...

Clause 7: To establish Post Offices and Post Roads;

Nope...

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Nope...

Clause 9: To constitute Tribunals inferior to the supreme Court;

Nope...

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

Nope... nothing about sexual predators or indeed any type of criminal other than... er... pirates and others who commit felonies upon the high seas or commit offenses against the laws of nations...

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Nope...

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Nope...

Clause 13: To provide and maintain a Navy;

Nope...

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Nope...

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Nope...

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Nope...

Cause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Nope...

Questions...??? Comments...??? Anything I seem to be missing...???

Interestingly enough, within the Syllabus (digest) of the ruling the Court itself notes...

Thus, although the Constitution nowhere grants Congress express power to create federal crimes beyond those specifically enumerated, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, or to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, Congress possesses broad authority to do each of those things under the Clause.

Hmm...

While I've read and reread the above several times... while I "understand" what the Court Majority is claiming... try as I might I can't find any foundation whatsoever for the claim from my reading and rereading of the Constitution; certainly not via the "authority" cited, Article 1, Section 8, Clause 18. (et al)

Now reality being what it is I no more expect anyone reading this post...

[By the way... congratulations if you've managed to get this far!]

...to read the actual Decision in its entirety than I do expect you to care whether the Constitution of the United States is being faithfully executed or not; I understand that boat has long since sailed.

That said...

If by chance any reader stumbling upon this post happens to... er... give a damn... about the Rule of Law under what our Founders intended to be a federal Republic... I urge you to read Justice Thomas' dissent - joined in by Justice Scalia in all but Part 3-A-1-B.

Yeah... admittedly it'll probably take you 20 minutes to get through the 23 pages of Justice Thomas' dissent... but in my not so humble opinion... it's worth your time.

Cutting to the chase... Justice Thomas notes:

As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. In our system, the Federal Government’s powers are enumerated, and hence limited. Thus, Congress has no power to act unless the Constitution authorizes it to do so.

The Necessary and Proper Clause empowers Congress to enact only those laws that “carry into Execution” one or more of the federal powers enumerated in the Constitution.

§4248 “Executes” no enumerated power...

The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority; the Clause plainly requires a showing that every federal statute “carries into Execution” one or more of the Federal Government’s enumerated powers.

[N]o matter how “necessary” or “proper” an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than “carrying into Execution” one or more of the Federal Government’s enumerated powers.

[O]ur precedents uniformly have maintained that the Necessary and Proper Clause is not an independent fount of congressional authority, but rather “a caveat that Congress possesses all the means necessary to carry out the specifically granted "foregoing" powers of [Article 1,] §8 and all other Powers vested by this Constitution.

No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.

The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernible.

This Court...consistently has recognized that the power to care for the mentally ill and, where necessary, the power “to protect the community from the dangerous tendencies of some” mentally ill persons, are among the numerous powers that remain with the States. As a consequence, we have held that States may “take measures to restrict the freedom of the dangerously mentally ill” - including those who are sexually dangerous - provided that such commitments satisfy due process and other constitutional requirements.

In other words, what Justice Thomas is pointing out is that even in terms of pragmatism alone, the States already have all the powers required to deal with sexual predators legally deemed an ongoing "threat to society." (As an addendum to the strictly Constitutional question, there is clearly no "necessity" for Congress to act, to usurp the States' authority.) -- Blog host's commentary.

[T]he Court cites the Second Restatement of Torts for the proposition that the Federal Government has a “custodial interest” in its prisoner and thus a broad "constitutional power to act in order to protect nearby (and other) communities” from the dangers they may pose. That citation is puzzling because federal authority derives from the Constitution, not the Common Law. (In any event, nothing in the Restatement suggests that a Common Law custodian has the powers that Congress seeks here. While the Restatement provides that a custodian has a duty to take reasonable steps to ensure that a person in his care does not cause “bodily harm to others,” that duty terminates once the legal basis for custody expires[.] Once the Federal Government’s criminal jurisdiction over a prisoner ends, so does any “special relationship” between the Government and the former prisoner.)

The fact that the Federal Government has the authority to imprison a person for the purpose of punishing him for a federal crime - sex-related or otherwise - does not provide the Government with the additional power to exercise indefinite civil control over that person.

Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States.

In closing, Justice Thomas cautioned...

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.”

Regrettably, today’s opinion breathes new life into that Clause, and - the Court’s protestations to the contrary not withstanding - comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that we always have rejected.

In so doing, the Court endorses the precise abuse of power Article I is designed to prevent - the use of a limited grant of authority as a “pretext . . . for the accomplishment of objects not entrusted to the government.”

And with that Justice Thomas concluded his dissent.

To his and Justice Scalia's dissents... I hereby add my own.