Legal Commentary

Comstock and National Security Detentions

By Ilya Somin

Co-blogger Ken Anderson asks:

Here?s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?

These issues were not discussed in the briefs of the parties, the oral arguments, or any of the amicus briefs I have seen (though I haven?t read all of the latter). Even if Comstock wins, I don?t think the decision will have much impact on national security detentions. The Comstock litigation only addresses Congress? power to confine people using its powers under the Commerce Clause and the Necessary and Proper Clause. The detention of terrorists and other enemy combatants is authorized by some combination of Congress? power to declare war, its power to ?raise and support Armies? (which presumably includes those personnel responsible for holding enemy prisoners); its power to establish laws for the ?government and regulation? of the armed forces (including procedures for detaining enemy combatants), and its power to ?define and punish? offenses under the ?law of nations? (which includes the power to punish enemy combatants who have committed war crimes). Some detentions might also be authorized by the president?s power as commander-in-chief, though in my view such detentions are subject to congressional regulation.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).