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New Federal Power Case, Likely Heading to the Supreme Court:

In United States v. Comstock, a unanimous panel of the Fourth Circuit (consisting of a Clinton appointee, a George W. Bush appointee, and a senior district court judge appointed by Reagan) held unconstitutional 18 U.S.C. § 4248, which "authorizes the federal government to civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons -- even after that person has completed his entire prison sentence." The panel held that Congress's enumerated powers do not reach this far, because Congress lacks a general police power aimed at protecting the public at large from crime.

Here's an excerpt, though it focuses on only part of the government's argument:

Federal commitment of "sexually dangerous persons" may well be -- like the suppression of guns in schools or the redress of gender-motivated violence -- a sound proposal as a matter of social policy. But policy justifications do not create congressional authority....

The Government ... contends that § 4248 constitutes a necessary and proper exercise of its power to prevent "sex-related crimes." But the federal government simply has no power to broadly regulate all sex-related crimes, as § 4248 purports to do.

Consistent with Congress’s limited powers, federal statutes regulating sex crimes are limited in number and breadth, specifically requiring a connection to interstate commerce or limiting their scope to the territorial jurisdiction of the United States. In contrast, § 4248 targets "sexual dangerousness" generally, without any requirement that this undefined danger relate to conduct that the federal government may constitutionally regulate. Because most crimes of sexual violence violate state and not federal law, many commitments under § 4248 would prevent conduct prohibited only by state law. Section 4248 thus sweeps far too broadly to be a valid effort to prevent federal criminal activity....

At its core, the Government’s argument attempts to "pile inference upon inference" so as to "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Were we to accept the Government’s logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential conduct violated federal law. This argument would convert the federal government’s limited power to criminalize narrow forms of sexual violence into the general power to regulate all sexual violence, including acts which violate no criminal statute. Congressional power does not reach so far.

Here are some tentative thoughts, which might well change as I think about the matter more.

1. On the merits: I sympathize with the panel's concerns. The Constitution clearly provides that Congress shall have only the limited powers that it grants -- not including a general power to prevent crime -- and it seems to me that courts should enforce those constitutional constraints as much as they enforce others. To be sure, there are enough precedents authorizing very broad assertions of Congressional power that I doubt that courts ever will return to the original understanding. But some policing of the outer boundaries of Congressional power is proper, as Lopez, Morrison, and City of Boerne v. Flores make clear.

At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let's set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that's an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety -- which will likely be a federal crime -- and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.

One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won't be imprisoned for the crime -- since he's not criminally guilty -- but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that's right, but how does it fit the panel's decision?

After all, the person is not guilty, so Congress can't appeal to its power to punish federal criminals (just as the people in this case can't be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel's reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that's the right answer, since Congress lacks the enumerated power to detain them -- but I'm skeptical that this is so.

Alternatively, perhaps Congress can detain these not-guilty-for-reason-of-insanity people, as part of whatever federal power justified their criminal trial in the first place. If someone insanely commits a federal crime, Congress should be able to lock him up to prevent him from committing more such federal crimes in the future. But why wouldn't this equally be so for the people adjudged sexually violent predators? (I should stress again that this is a separate question from the broader Due Process Clause question of whether any government, state or federal, may civilly lock people up because of their future dangerousness, after their criminal term has expired.) In any case, that's why I'm tentatively skeptical about the panel's reasoning.

2. On the future of this case: The panel reports that this is the first federal court of appeals decision passing on the constitutionality of the statute. There's thus no circuit split of the sort that would normally signal a likely decision by the Supreme Court to hear the case. But there is a federal statute being struck down, and that sort of interbranch split -- the legislature thought the statute was constitutional, the executive is defending the statute as constitutional, but the judiciary is saying it's unconstitutional -- will often lead to a Supreme Court hearing even without an inter-circuit split.

So if the Fourth Circuit doesn't rehear the case en banc -- and en banc seems unlikely, given the general presumption against en banc and the mixed political makeup of the unanimous panel -- and if the Obama Administration asks the Supreme Court to hear the case, I predict the Supreme Court will indeed agree to hear the case.

Thanks to How Appealing for the pointer.

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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.

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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.

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Supreme Court Agrees To Hear Comstock Federal Power Case:

I blogged about the case in January, as did Ilya. Having had a (rare) success predicting the grant of certiorari, I now predict that the Supreme Court will reverse the Fourth Circuit decision, chiefly for the reasons I mentioned in my initial post.

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