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Oral Argument in U.S. v. Comstock Has Echos of M'Culloch v. Maryland

By Eric L. Lipman

Last Tuesday, the Supreme Court of the United States heard oral argument in the case of U.S. v. Graydon Earl Comstock, Jr. In Comstock, the court considers whether Congress has the authority to enact a statute providing for the indefinite civil commitment of "sexually dangerous persons? who are in the custody of the Bureau of Prisons, but whose federal prison sentence is at an end. Is civil commitment of dangerous persons an enumerated power of Congress ? and if so, which power?

This kind of dispute is as old as our federal system. In 1816, resolving the challenge to Congress? power to charter a Bank of the United States, Chief Justice John Marshall announced the legal standard and defined the field of combat for so many future struggles; including this one. As Marshall famously wrote in M'Culloch v. Maryland:

[S]hould congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

Thus, whether it was a federally-chartered Bank in 1816, or a treatment facility for dangerous persons today, the central question is the connection between an enumerated federal power and the means that Congress has chosen to exercise that power.

As Tuesday?s oral argument revealed, indefinite treatment of dangerous persons without regard to an underlying prison sentence, is, at best, at the outer periphery of Congress? Article I powers. Indeed, Solicitor General Elena Kagan had great difficulty in identifying which enumerated power Congress was exercising when enacting the commitment statute. Consider these exchanges with a skeptical Justice Antonin Scalia:

JUSTICE SCALIA: What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?

GENERAL KAGAN: I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public.

....

JUSTICE SCALIA: .... I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.

GENERAL KAGAN: I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.

The other important echo from 1816 was Justice Stevens? frequent reminder that it was not the province of the Supreme Court to inquire into the utility of the underlying statute ? this, he asserted, the Court was obliged to assume ? only the authority for the treatment program. The reminders sought to refocus his colleagues from a discussion of federal policy to one of federal power.

And as much as the United States? position seemed to be taking on water during Tuesday?s argument, the patient-detainees also had their challenges. Assistant Federal Public Defender G. Alan DuBois had considerable difficulty in addressing whether Congress had the power to detain (and quarantine) prisoners with infectious diseases at the end of their prison sentences. Was not, Justices Breyer and Stevens wondered aloud, detaining a sexually dangerous person in federal custody analogous to quarantining a federal prisoner with drug-resistant and highly-contagious tuberculosis? Was the federal sovereign incapable of meeting such a threat?

The entire transcript from last Tuesday?s argument, which really is worth reading and thinking about, is accessible here.

Full post as published by Within the Scope on January 18, 2010 (boomark / email).