United States v. Comstock: Argument Preview

By Anna Christensen
on Jan 12, 2010 at 8:35 am

The following is an argument preview of United States v. Comstock (08-1224), oral arguments for which will be heard this morning at 10 a.m.

Background

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government (in 18 U.S.C. § 4248) authority to seek civil commitment of “sexually dangerous person[s]” already held in its custody.   That authority in turns allows the government to seek to have individuals who are either completing federal prison sentences or incompetent to stand trial remain in federal custody indefinitely as a result of their “sexually dangerous” status.

To secure the continued detention of an individual completing his sentence, the government must demonstrate that by clear and convincing evidence that the individual “is a sexually dangerous person”; if the United States can make this showing, the individual is committed to the custody of the Attorney General, who must then “make all reasonable efforts to cause” the state in which the individual resides or was tried “to assume . . . responsibility” for his custody and care.

When four of the respondents in this case were completing terms in federal prison, the federal government initiated civil-commitment proceedings against them.  (A fifth respondent was in federal custody because he had been found mentally incompetent to stand trial).  The individuals moved to dismiss the proceedings on the grounds that Section 4248 exceeded Congress’s powers under the Commerce Clause, that the “clear and convincing” requirement did not meet due process standards, and that the Section violated the Fifth, Sixth, and Eighth Amendments of the U.S. Constitution.  A federal district court agreed and granted the motion to dismiss.  On appeal, the Fourth Circuit affirmed, holding that Section 4248 exceeded Congress’s enumerated powers.  The United States filed a petition for rehearing en banc, which was denied.

Certiorari

The United States petitioned for certiorari in which it emphasized that even if there was not a  circuit split on the proper interpretation of Section 4248, the Supreme Court has nonetheless frequently granted cert. when a court of appeals declares an act of Congress to be unconstitutional.  The government attributed the lack of a circuit split to the fact that a large number of sex offenders in federal custody are held at a facility in North Carolina, which leads to the majority of civil-commitment proceedings – and challenges to them – taking place within the Fourth Circuit.

The Court granted the petition in June 2009; in so doing, it declined Comstock’s suggestion (raised in his brief in opposition) that it also address whether Section 4248 comports with due process.

Merits

In its brief on the merits, the United States begins by observing that it “bears the burden” of proving that a person is sexually dangerous before detaining him.  A person found to be “sexually dangerous,” it continues, can challenge his detention at any time; further, his detention remains under federal control only if the state in which he lives or was tried refuses to assume responsibility for his custody.

The government then turns to the Necessary and Proper Clause, which in its view authorizes Section 4248 as an “appropriate” and “not prohibited” means by which to pursue a “legitimate” constitutional end.  Pointing to the “decades of law” dealing with the civil commitment system, the government contends that civil commitment authority has long been considered “properly incident” to the exercise of federal powers, and that the legitimacy of the government’s custodial role in the detention of “sexually dangerous” persons is well-established.  Moreover, although the system’s original framework was intended to address the detention of other individuals in whom the federal government had a “special interest” – such as members of the military – this framework serves, according to the government, the same ends as Section 4248.  And because Section 4248 deals with the custody of individuals already held in federal custody, its application does not represent an intrusion on the rights of states.

Turning next to the lower court’s determination that Section 4248 is inconsistent with the Supreme Court’s rulings in United States v. Morrison and United States v. Lopez, the government contends that, unlike the statutes addressed by those cases, Section 4248 includes a “jurisdictional element” which ensures that all affected cases implicate federal interests.  Because it is limited to individuals already “in the custody of the Bureau of Prisons” or “committed to the custody of the Attorney General,” the statute applies only to cases in which a legitimate federal interest exists.  Furthermore, because Section 4248 allows states to assume responsibility for federal prisoners domiciled and tried there, it “pays due respect” to federalism.

Finally, the government criticizes the lower court’s decision to dismiss the proceedings against one respondent without explaining why Section 4248 was unconstitutional as applied to individuals who, like him, had been found incompetent to stand trial.  Although the lower court conceded that civil commitment of such individuals would lie within the federal government’s authority if pursued under another statute, the government complains, it did not articulate why the same would not be true of civil commitment pursued under Section 4248.

In his brief on the merits, respondent Graydon Comstock emphasizes that the Necessary and Proper Clause is merely a “caveat” allowing Congress to carry out powers already enumerated in the Constitution, rather than a “standalone basis for federal legislation.”  The authority to enact criminal laws and to operate a prison system is a “necessary and proper means of carrying out specific enumerated powers” – rather than being itself an enumerated power – and a further exercise of power for the purpose of carrying out that authority cannot therefore be “necessary and proper.”  Because no enumerated power directly supports Section 4248, the section cannot be said to be necessary and proper for the purposes of enacting such powers.

Responding to the government’s contentions that Section 4248 is “necessary and proper” because of the “connections,” “interests,” and “special relationships” between the federal government and the individuals affected by the provision, Comstock argues that the Necessary and Proper Clause requires a statute to be justifiable in relation to an enumerated power, not to the regulated individual.  Indeed, he observes, the “special relationship” between a detainee and the federal government can be applied to many citizens: according to the government’s reasoning, employees, recipients of federal benefits, and numerous others can be seen as subject to the type of general police powers authorized by Section 4248.  Likewise, he contends, the government’s asserted “interest” in preventing crime does not justify the custodial authority which Section 4248 sanctions.

Comstock also notes that the government declined to defend Section 4248 under the Commerce Clause, speculating that such a defense would be baseless because most sexually violent conduct represents a violation of state law.  In Morrison, the Court rejected the notion that Congress can regulate noneconomic violence by invoking the Commerce Clause, and the lower court’s comparison between that case and his was an accurate one.   Moreover, Morrison identifies the suppression of violent crime as a core state power; by transferring that power to the federal government, Section 4248 interferes with state sovereignty.

Comstock also contends that the history of civil commitment actually reflects a federal reluctance to interfere with the power of the states.  Congress and the Executive Branch have repeatedly been reluctant to allow the federal government to play more than a limited role in civil commitment, in particular allowing the federal government to retain commitment custody only of insane individuals enlisted in the army and navy or living in the District of Columbia.