In a disappointing move, the Supreme Court has upheld a federal law that allows the feds to keep locked away criminals deemed “sexually dangerous” after those convicts’ prison term is over. This case saw Chief Justice Roberts move to the left of moderate Justice Kennedy, and could be a troubling sign of things to come.
In U.S. v. Comstock, the Supreme Court considered a challenge to the federal civil-commitment statute. If a person is in federal prison, and the government finds evidence that the person is dangerous in a sexual manner, then when the criminal’s prison time is over, the statute empowers the federal government to keep them locked up if no state will claim jurisdiction over him.
On May 17, the Supreme Court handed down its decision in Comstock. Despite the skepticism that most justices expressed during oral argument, the Court upheld the federal statute. By a 7-2 vote, the Court held that the federal government has the power to keep such people locked up under the Constitution’s Necessary and Proper Clause.
Justice Anthony Kennedy expressed misgivings about how quickly federal power could spiral out of control by allowing Congress to pass whatever laws are “necessary and proper,” refusing to join the majority opinion and saying that the majority was sanctioning federal power that was overly broad and sweeping.
Justice Sam Alito concurred in upholding the law, but rejected the majority’s expansive reading of the Necessary and Proper Clause. Alito said he would uphold it only because when someone is in federal prison due to committing a federal crime, the feds retain enough power over the situation not to have to release someone if no state will take them. Alito emphasized that, “this is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power.”
All of these, however, represent an expansion of federal power to confine people without any constitutional provision to the federal government being triggered. That’s why Justice Clarence Thomas dissented from this alarming expansion, joined by Justice Antonin Scalia.
The federal government has no police power to enforce laws for public safety, health or morality. It only has the specific powers delegated to it by the Constitution. None of those powers allows the feds to do this.
As Thomas explained, “To be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”
The concern here is that the federal government is already exercising vast powers over people’s lives, in areas that the Founders never permitted. U.S. v. Comstock was a missed opportunity to restore some limits on those powers.
What’s most troubling about this decision, however, is that Chief Justice John Roberts sided with the liberal justices, embracing this broad reading of the Necessary and Proper Clause. It was a surprising move for Roberts, who is generally considered conservative but who is developing a pattern of moderate decisions.
This opinion, written by Justice Stephen Breyer, was far enough to the left that moderate Justice Kennedy couldn’t join it. When you’re to the left of Kennedy on federal power, the word “conservative” hardly leaps to mind.
The Comstock decision does not bode well for some of the lawsuits underway challenging parts of the Obama agenda, an agenda based on a concept of runaway federal power.