Academic

Commerce Clause and Civil Commitment of Sex Offenders

By Calvin Massey

   The United States Supreme Court today granted certiorari in United States v. Comstock, 08-1224, in which the question presented is whether Congress had constitutional authority to enact 18 USC 4248.  That section purports to give the federal government power to detain in "civil commitment" sexually dangerous persons for an indefinite period, even after their sentences have been served.   The Fourth Circuit ruled that the commerce clause did not provide sufficient authority for this provision.  

   For the commerce power to authorize section 4248 it must be shown that the activity regulated (detention of sexually dangerous persons) has a substantial effect on interstate commerce.  In its petition for certiorari the government argues that 4248 is a valid exercise of congressional authority to enact laws that are necessary and proper to implementation of federal power to enact criminal laws that are necessary and proper to implement enumerated federal powers.  This is similar to the bootstrap -- or "means affecting means" -- argument that constituted an alternative basis for upholding the Fair Labor Standards Act in Darby. In Darby the Court said that the wage and hour rules were an appropriate means of ensuring implementation of the means Congress had chosen to regulate interstate commerce -- prohibition of interstate shipments of goods not manufactured in compliance with FLSA's wage and hour rules.  In prior posts on the Volokh Conspiracy Eugene Volokh has argued that if Congress can ban possession of child pornography as an appropriate means of implementing its ban on interstate commerce in child porn, it must have similar power to detain people likely to commit sex crimes.  Ilya Somin made similar arguments, focusing a bit more on the alleged inconsistency between the Fourth Circuit's opinion and the Court's decision in Gonzales v. Raich.  The argument, which is echoed by the government's cert petition, is that civil commitment is part of a broader valid regulatory scheme (criminal sanctions for sex crimes) and thus comes within the commerce power.  I think the flaw in this argument is that the valid regulatory scheme comes to an end when criminal punishment is completed.  Civil commitment needs a separate justification.  I think this is equally true of continuing commitment of people found to be not guilty by reason of insanity.  But what will the Court think?  I suspect that the revulsion toward sex offenders, coupled with the left's eagerness to uphold federal power at every opportunity, is likely to produce an opinion reversing the Fourth Circuit and reaffirming either or both of Darby's bootstrap rationale or Raich's "broad regulatory scheme" rationale.  Of course, there is the independent questionof whether such civil commitment violates due process.  

Full post as published by The Faculty Lounge on June 22, 2009 (boomark / email).