Supreme Court Stays Comstock:

Earlier this year, in United States v. Comstock, the U.S. Court of Appeals for the Fourth Circuit held that portions of the Adam Walsh Child Protection and Safety Act, enacted in 2006, exceeded the scope of Congress commerce clause power. Specifically, the court held that the commerce power could not be used to civilly commit a "sexually dangerous person" in federal prison once that individual has completed his entire priison sentence. Eugene and Ilya blogged on the decision here.

Yesterday, SCOTUSBlog reports, Chief Justice Roberts stayed the implementation of the Fourth Circuit's holding — delaying the release of the sex offenders who had challenged the law — pending consideration of the government's petition for certiorari. Like Eugene, I expect this case will go up. If so, it will be a critically important case, as it could determine whether any limits of the scope of federal power remain after Gonzales v. Raich.

it would take a real expansion of the reach of raich to uphold this law, which, on any plausible reading, has nothing to do with economic activity.
4.4.2009 1:19pm
Cornellian (mail):
it would take a real expansion of the reach of raich to uphold this law, which, on any plausible reading, has nothing to do with economic activity.

Neither did Raich, which did not involve any buying or selling.
4.4.2009 2:30pm
Well, at least Raich involved possession of something that can be bought and sold.
4.4.2009 2:45pm
please, cornellian...perhaps i should have said "intrastate, non-commercial activity that is part of a class of economic activities and which, although having no or a de minimis effect on the regulation of that class of activities taken alone may, when all of the instances of it are aggregated, have such a substantial effect." but that would have been a bit much, don't you think, since i'm quite certain you understood me?

i guess it's conceivable that the sct uses raich to find, for example, that the civil commitment of allegedly sexually dangerous people in BOP custody is "necessary and proper" to either 1) prevent the violation of federal sex crime statutes; or 2) prevent the violation of that subset of federal sex crime statutes which (peripherally) regulate economic activities (e.g., arguably, child porn). but the govt didn't make argument #2 below, and the link between civil commitment - preventing violation of federal statutes - necessary and proper clause is pretty thin under either theory.
4.4.2009 4:18pm
Michael Ejercito (mail) (www):
Could not the precedent set by Korematsu justify civil commitment of sexually dangerous persons?
4.4.2009 6:16pm
Edmund Unneland (mail):
Sometimes, the captions on cases are priceless; "Comstock," indeed. I guess the given name is not Anthony, that would be even better.
4.4.2009 8:41pm
J. Aldridge:
The historical meaning and application of regulating commerce was void of police powers. Police powers is a later fictional invention of the court which congress swallows line, hook and sinker.
4.4.2009 8:49pm
Sex can be bought and sold.

In general, essentially anything in social life can potentially be bought and sold, from friendships to opinions to judgeships to legislation, and certainly sex. Everything and anything in life can, so far as objective evidence and empiricism is concerned, be made into a commodity. Whether it should be or it is moral for it to be is beside the point.

One of the difficulties with Raich is that the only thing it exempts from the commerce clause are the things the Justices think ought not to be treated as commodities. Thus, it is only the Justices' current personal views of morality -- of how things ought to be -- that lets anything at all escape federal regulation
4.4.2009 10:09pm
Gabriel McCall (mail):

The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

Boy, that Hamilton guy sure was a chump.
4.6.2009 11:46am
semi-regular reader:
Does the commerce justification have to be related to the underlying crimes that led to the offenders' classifications, or can the interstate aspects of the post-conviction registration programs give the link? Could the feds notice that all states have programs labelling and tracking offenrers, so there's an interest in harmonizing those standards, so that the states can track the offenders who move into their states? That helps the states manage the interstate movements by offenders. One could even posit a sort-of benefit to the offenders, in that without harmonization, states might err by labelling all incoming low-level offenders with higher, more restrictive labels. So national labelling helps them to move, and although they are stuck without being able to lose the baggage, they at least don't get an upgrade.

Besides, if offenders move, they will eat a famer's output in a different state, or something like that.
4.6.2009 5:17pm

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