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.