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The Comstock Case, Gonzales v. Raich, and the Limits of Federal Power:

I agree with Eugene that United States v. Comstock, today's Fourth Circuit decision invalidating a federal statute allowing indefinite civil commitment of "sexually dangerous" persons who have finished serving their sentences for federal crimes, might end up in the Supreme Court. In my view, the court of appeals was right to conclude that this statute exceeds Congress' power under the Commerce Clause of Article I of the Constitution.

But Comstock probably isn't consistent with the Supreme Court's 2005 decision in Gonzales v. Raich, which held that the commerce power was broad enough to justify a federal ban on the use of medical marijuana, even in a case where the marijuana had no connection whatsoever to any commercial transaction. In my view, Raich's reasoning is easily broad enough to encompass the statute challenged in Comstock.

I discussed Raich's licensing of virtually unlimited federal power under the Commerce Clause in this article. Raich amounts to a virtually unlimited reading of the Commerce Clause in three ways (each examined more fully in the article):

First, Raich reiterates earlier decisions holding that the Commerce Clause gives Congress the power to regulate any "economic" activity, and then goes beyond them by defining "economic activity" to including anything that involves the "production, consumption, or distribution" of commodities. A person's decision on where to live surely involves at least the consumption and distribution of commodities such as housing, fuel, electricity, and food. For example, I could not continue to live in my current apartment without "consuming" electricity and gas there, which are surely commodities. By civilly confining certain "sexually dangerous" offenders who have served their sentences, 18 U.S.C. 4248, regulates their decision on where to reside and thereby also controls their consumption and distribution of various commodities.

Second, Raich expands Congress' ability regulate even "noneconomic" activity by claiming that such regulation is part of a "broader regulatory scheme" targeting something that is economic. In a brief footnote, the Fourth Circuit claims that Section 4248 isn't part of any such scheme. However, as Eugene points out in his post, Section 4248 can easily be considered an extension of the various regulatory schemes enforced by the statutes which these offenders had violated in the first place. To the extent that continued civil incarceration helps prevent future violations of these laws through either deterrence or incapacitation, it is surely part of a common regulatory scheme with them.

The Comstock opinion implicitly tries to address this point this by noting that the possible future crimes of "sexually dangerous" prisoners may only violate state rather than federal law. But it is important to remember that Raich does not require that Congress specifically intended a connection between the various parts of a regulatory scheme; nor does it require any proof that the regulation of "noneconomic" activity is actually needed to make the scheme work. To the contrary, the Court specifically emphasized that such proof is unnecessary so long as Congress had even a minimal basis for concluding that there is a connection between the two. Congress also is not required to ensure that there is anything approaching a close fit between the regulation of "noneconomic" activity and the federal interest it is supposed to promote. Thus, the fact that Section 4248 is broader than necessary is immaterial so far as Raich is concerned.

Finally, Raich restored the so-called "rational basis" test for judicial review of Commerce Clause cases. In plain English, that means that the government doesn't have to actually prove that Section 4248 regulates "economic activity" or that it is part of a broader regulatory scheme. Rather, the government can win simply by showing that Congress might have had some "rational" reason for believing that one of these two conclusions is correct. And by "rational," the Court means merely that there is some possibility, even if a very remote one, that Congress' putative reasoning might be sound.

Unfortunately, the Comstock decision dismisses Raich in a brief footnote that ignores most of the considerations discussed here. The Fourth Circuit does rely heavily on the Court's two earlier Commerce Clause decisions in United States v. Lopez and United States v. Morrison, but essentially ignores the way in which Raich greatly undercuts those precedents by virtually confining them to their facts. I discuss the impact of Raich on Lopez and Morrison in my article linked above; see also this excellent piece by co-conspirator Jonathan Adler.

If Comstock goes to the Supreme Court, the justices will of course be free to overrule Raich or (more likely) cut back on some of its expansive reasoning in order create wiggle room for a decision upholding the Fourth Circuit ruling. I very much hope that that happens. But I am not optimistic. Raich was a 6-3 decision, and two of the three justices in the minority (O'Connor and Rehnquist) have since been replaced. Thus, the Raich majority remains intact. The four most liberal justices have consistently voted against every effort to restrict federal Commerce Clause authority and will likely do so in this case as well. And it's difficult to believe that they won't pick up at least one conservative vote, perhaps from one the two conservatives who voted with the majority in Raich (Scalia and Kennedy). I think it's also possible that they could get Chief Justice John Roberts' vote, as he may be less committed to federalism than his predecessor. Distaste for sex offenders could also influence the votes of any conservative justices who may be on the fence. There is a chance that the five conservative justices will see this as an opportunity to reassert the principle that there are still some limits to federal power and stick together. But I don't think that is the most likely outcome.

UPDATE: Lawprof Corey Yung defends the Fourth Circuit decision and criticizes Eugene's post and (briefly) mine. In response to me, Yung points out that the government didn't make the specific arguments I describe here in its brief, and therefore suggests that the court was justified in relegating Raich to a footnote. It may well be that the government failed to emphasize Raich as much as it should have. However, as the Comstock opinion notes, the government certainly did argue that Section 4248 was justified by the Commerce Clause. Given that fact, the court should have thoroughly examined the Supreme Court's most recent and most sweeping Commerce Clause decision - even if the government's brief didn't use Raich as effectively as it could.

J. Aldridge:
So today there would no longer be no need for an constitutional amendment to say, prohibit alcohol? :-)

Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other.

--James Monroe

Anyone interested in the best details of the power to regulate commerce should look here.
1.8.2009 8:43pm
Justin (mail):
I can very much see a fractured opinion, with some on the court voting to overturn Kansas v. Hendricks and others voting on the Commerce Clause issue, invalidating the law but providing no useful precedent outside the case.

I also think Somin reads Raich far too broadly - the better argument for reversal is that the 4 liberals will attempt to overturn Morrison and at least one of the new conservative will go along due to their expansive view of executive authority. But the liberal position on Morrison comes in conflict with its position on Hendricks, so even that argument isn't solid.
1.8.2009 8:58pm
man from mars:
The argument of your second paragraph seems to be this:

1. Raich allows Congressional regulation of noneconomic activity when that regulation is part of a broader regulatory scheme that regulates economic activity;

2. Section 4248 is part of a broader regulatory scheme with economic effects; therefore

3. Raich permits Section 4248.

The error you are making here is that Raich is only concerned with regulatory schemes whose direct purpose is to regulate core interstate economic activity. Thus, in Raich, the main purpose of the regulatory scheme at issue, at least nominally, was to regulate interstate commerce in drugs.

Here, however, the regulatory scheme of which Section 4248 is a part is one whose primary purpose non-economic, namely to prevent crimes. Congress has some power to due this because this non-economic activity affects interstate commerce, but its power is no plenary.

This is why the panel found Comstock to be governed by Lopez and Morrison, where the primary purpose of the regulatory scheme was not covered under the inherent powers of the Commerce Clause. Comstock is not like Raich because, even though the activities being regulated were non-economic like Raich, the core purpose of the regulatory scheme itself is non-economic, unlike in Raich and Wickard.

Two comments: by "economic" above I mean in shorthand "interstate economic commerce" that is part of the [i]inherent[/i] power of the Commerce Clause and thus over which Congress' power, as in Gibbons, is "plenary." Congress can use the Necessary and Proper clause to augment that plenary power to get at non-economic activity, as it did in Wickard and in Raich, but in Raich the court clarified that this is only because the non-economic activity is part of larger regulatory scheme whose core purpose is economic.

So, the panel was correct, in my view, to rely on Lopez and Morrison rather than on Raich and Wickard.
1.8.2009 9:07pm
Ilya Somin:
The error you are making here is that Raich is only concerned with regulatory schemes whose direct purpose is to regulate core interstate economic activity. Thus, in Raich, the main purpose of the regulatory scheme at issue, at least nominally, was to regulate interstate commerce in drugs.

Here, however, the regulatory scheme of which Section 4248 is a part is one whose primary purpose non-economic, namely to prevent crimes. Congress has some power to due this because this non-economic activity affects interstate commerce, but its power is no plenary.


Raich nowhere distinguishes between "core" interstate economic activity and "noncore." Obviously, the real purpose of the statute at issue in Raich was to suppress the use of drugs. To the extent that it also had a nominal purpose to "regulate interstate commerce," similar nominal purposes could be conjured up for virtually every other federal criminal statute. For example, statutes criminalizing possession of child pornography could be characterized as regulating the interstate commerce in child porn.
1.8.2009 9:14pm
Tatil:
Calling "imprisonment" just a regulation of housing consumption sounds like quite a stretch.
1.8.2009 9:33pm
methodact:
Too clever by half. The great hoax of Miller v. California was the specter of federalism, the laboratories of democracy, State's Rights, community standards fiat.

Raich even presumed to subvert the right of self defense, as in medical use of marijuana, the very right to life. The giant legal scam was that the People vote on marijauna decriminalization. If it had been defeated, (hey, the federal government spent money illegally to influence those campaigns, too), then the hue and cry is, "Look, the People have spoken, marijuana is prohibited, the system works."

Since the medical use passed by popular will, they pull the Supremacy Clause, schtick. Hey, no real commerce involved, they just abstract commerce in, one size fits all. This is all outcome-oriented judicial legerdomain, ala Dred Scott.

But why make it easy for them?
1.8.2009 10:38pm
Hutz:
But all of recent examples of non-economic conduct validly regulated under the Commerce Clause at least involve something that could, potentially, become an object of interstate commerce. Marijuana and child pornography are objects. They could be bought or sold across state lines.

Neither a sex crime nor a sex criminal (thank you, 13th Amendment) is a thing that could even potentially make its way into interstate commerce or become an object of an economic transaction.
1.8.2009 11:04pm
Kirk:
mfm:
Congress has some power to due [sic] this because this non-economic activity affects interstate commerce
Apparently on Mars they don't have any true copies of the US Constitution available for persusal, but only the bogus edition (in wide circulation here on earth too, it must be admitted) in which the spurious phrase, "or anything affecting commerce or claimed to affect commerce" has been added to Art I Sec 8.
1.8.2009 11:08pm
man from mars:

Apparently on Mars they don't have any true copies of the US Constitution available for persusal, but only the bogus edition (in wide circulation here on earth too, it must be admitted) in which the spurious phrase, "or anything affecting commerce or claimed to affect commerce" has been added to Art I Sec 8.

The "affect" power comes, not from the Commerce Clause, but from the Necessary and Proper Clause. There is a long discussion of this in each of the O'Connor, Scalia, and Thomas opinions in Raich (some in concurrence, some in dissent).

That is why in my original post I differentiated between "inherent" Commerce Clause powers and those that can only be reached via the Necessary and Proper Clause.
1.8.2009 11:49pm
J. Aldridge:
^^^ The Necessary and Proper Clause has no bearing on the subject because there is nothing necessary or proper with regulating commerce outside of duties and imposts on trade goods with other countries. As far as among the states, the entire constitution makes it plain as day as to what to regulate commerce means.

Madison wasn't kidding when he said the power to regulate commerce among the states was was a "negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government."
1.9.2009 12:04am
Kirk:
What J. Aldridge said.

That reading of Necessary and Proper swallows up all the restrictions on federal government power, just like the too-expansive reading of the Commerce Clause does.

Can we at least agree that, given the fact that we have writings like the Federalist Papers and other contemporary stuff, that the writers of the Constitution did, in fact, intend to restrict the Federal Government from having certain powers???
1.9.2009 12:18am
ReaderY:
Raich is easily distinguishable. Raich involve the production of a commodity, and containing language specifically distinguishing the private growing of marijuana from the domestic sexual violence statute that it found unconstitional in Morrison. Morrison is thus still good law. I think the 4th Circuit is quite correct to note that this case much more closely resembles Morrison than Raich. No commodity, or other "economic activity" is involved here. And more importantly, Congress never even went through any motions of intending economic regulation or connecting the provision to any such regulation. It acted as if it could enact regulatory statutes motivated solely the general welfare, which of course it lacks the power to do.
1.9.2009 2:58am
ReaderY:
Raich is easily distinguishable. Raich involved the production of a commodity, and contained language endorsing Morrison an specifically distinguishing the private growing of marijuana from the domestic sexual violence statute that found unconstitional. Morrison is thus still good law. I think the 4th Circuit is quite correct to regard this case as more closely resembling Morrison than Raich. No commodity, or other "economic activity," is involved here. And more importantly, Congress never even went through any motions, hollow or otherwise, of intending to connect the provision to any economic regulation or economic purpose. It acted as if it had the power to enact regulatory statutes motivated solely out of concern for the general welfare, It has no such power. As the 4th Circuit noted, if the Federal government has an interest in the welfare, it is welcome to use its spending power.
1.9.2009 3:03am
Gilbert (mail):
Raich held that private activity parallel to a clearly established interstate market could implicate that market by providing an alternative. There is no similar established interstate market here because abuse/violence, as a general matter, does not constitute a market (US v. Morrison)(violence against women act fails commerce clause).

People hate the Riach reasoning so much that they fail to fully engage its reasoning. Its the same problem with due process analysis when people reduce it to 'strict-in-name-fatal-in-fact.' I think that is what is going on with this post.
1.9.2009 7:39am
man from mars:
Kirk writes:

Can we at least agree that, given the fact that we have writings like the Federalist Papers and other contemporary stuff, that the writers of the Constitution did, in fact, intend to restrict the Federal Government from having certain powers?

Yes, but current Supreme Court jurisprudence obviates most of that intention. So long as the Federal government obeys certain formal restrictions, its power is unlimited, either via the Necessary and Proper Clause or via the Spending Power. Anywhere there is a "rational basis test" as a check on government power as well, this is equivalent to no check.

The Government could easily get where it wants to go in Comstock by, for example, using the spending power - for example, refusing all federal funds to States that do not enact specific civil commitment proceedings. Comstock was decided as it was only because the Government did not carefully think through the commerce clause implications in drafting the statute, but that could easily be remedied.

Now, you might say this is a bad thing - but it is not so clear. The world is far more interconnected and networked than it was in the Founders' time. Travel between states is routine. Thus, almost any activity plausibly affects interstate commerce, and it is not surprising the commerce clause scope is so broad. All of us daily rely on the internet for example, which is inherently a channel of interstate commerce - so in that sense all activities are interstate.

As to the spending power, because of the interconnected nature of society, the federal government has a much greater interest in uniformity among the states than it had had at the time of the founders. The world is just too brittle and fragile for bromides like "states are laboratories" and "individual choice" to have real force. The danger of a failed experiment is far greater than in Madison's time.

Remember, even Lopez and Morrison had almost no real effect. After Lopez, the government just added a few lines about the firearms having to have some connection with interstate commerce, the substance of the law was unchanged.

Thus, although I agree with you that the Founders intended some jurisdictional limits on federal power, the politics and technology of our interconnected world have removed any such limits as a matter of practice.
1.9.2009 10:53am
Anon23:
Ilya sayeth:

A person's decision on where to live surely involves at least the consumption and distribution of commodities such as housing, fuel, electricity, and food. For example, I could not continue to live in my current apartment without "consuming" electricity and gas there, which are surely commodities. By civilly confining certain "sexually dangerous" offenders who have served their sentences, 18 U.S.C. 4248, regulates their decision on where to reside and thereby also controls their consumption and distribution of various commodities.


If I understand your position correctly, you seem to be arguing that biological necessities such as eating and sleeping are sufficient to subject the populace to a general police power held by Congress.

Wow. That's a pretty wide net you're casting.
1.9.2009 11:03am
methodact:
Raich is illustrative of why the US Supreme Court chooses the cases it hears with such care. The justices at the time were full of remonstrances of being unhappy having to vote as they did. With so much federal law propped up like a house of cards depending on the narrow clauses already stretched far beyond their elasticity, to vote otherwise would change the entire landscape of federal government. Raich was such bad law that it clearly shows the cracks developing in the expansive top-down centralized government the system has become, that the founders had so carefully balanced otherwise. Even the 14th Amendment is implicated.

Hanging the instant case on Raich would be a colossal risk.

The circular arguments all based on compound error grow ever more egregious where the police state takes art, vilifies it and equates it to terrorism then hides its Total Information Awareness program by renaming to Terrorism Information Awareness program. Add in the collection of such invasions of privacy as government digitizing all personal medical records and Real ID and a clearer picture appears of where it all leads.

On account of the vilified art of so-called "CP" we get reactionaries like New York State Attorney General Andrew M. Cuomo shaking down ISPs for hundreds of thousands of dollars and using color of law to try and kill Usenet, all in the name of combating the vilified art, otherwise known as "CP". The compound bad law becomes viral.

Whatever the sourse of their power to continue to prohibit this vilified art, as far as I am concerned, it surely will not be like so much laches.
1.9.2009 11:46am
Frater Plotter:
Once the law professes belief in the existence of a practice called "civil confinement", substantively identical to imprisonment but somehow mystically different, the law is no longer operating in the sphere of ordinary reality. This is state-worship; it is Newspeak.

"Confinement" of "dangerous" persons is imprisonment. That's what "imprisonment" means.

Freedom is the freedom to say 2 + 2 = 4.
1.9.2009 12:27pm
Thales (mail) (www):
Perhaps the Court could entertain a new due process, Eighth Amendment or other Bill of Rights challenge to such statutes (i.e overrule Kansas v. Hendricks), sidestepping the commerce clause issues. I have long thought that these statutes are both cruel and disproportionate, as well as completely paranoid.
1.9.2009 2:28pm
Steve2:

Finally, Raich restored the so-called "rational basis" test for judicial review of Commerce Clause cases. In plain English, that means that the government doesn't have to actually prove that Section 4248 regulates "economic activity" or that it is part of a broader regulatory scheme. Rather, the government can win simply by showing that Congress might have had some "rational" reason for believing that one of these two conclusions is correct. And by "rational," the Court means merely that there is some possibility, even if a very remote one, that Congress' putative reasoning might be sound.


You know, changing that to an "actual basis" test, where the parts I bolded were reversed, would solve one very sweeping flaw in the U.S. legal system. By all means, let it be by the preponderance of the evidence, but make the government always give evidence proving both 1)that X is Congress's reason, and 2)that X is valid, and American law and jurisprudence would gain so much legitimacy overnight.
1.9.2009 3:06pm
man from mars:


You know, changing that to an "actual basis" test, where the parts I bolded were reversed, would solve one very sweeping flaw in the U.S. legal system.


From the government's standpoint, though, it's not a flaw, it's a feature.
1.10.2009 12:48am

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