A necessary and proper dissent in Comstock


Author: Daniel Himebaugh

Earlier this week, the Supreme Court issued its opinion in United States v. Comstock, upholding a law that authorizes the federal government to civilly commit sexually dangerous persons beyond the date it lawfully could hold them on a criminal conviction.  The basis of the Court's decision: The Necessary and Proper Clause, which empowers Congress to enact laws that "carry into execution" the federal powers enumerated in the Constitution.  While this case might seem like a no-brainer–(who would oppose keeping sexual predators off the streets?)–it's not.  Comstock is a reminder that constitutionalism requires a healthy amount of judicial fortitude.

I refer specifically to Justice Thomas's dissenting opinion, in which he and Justice Scalia conclude that the federal government did not have the authority to enact the civil commitment law because the law does not execute any enumerated federal power.  The dissenters rely on Chief Justice Marshall's cornerstone summary of the Necessary and Proper Clause from McCulloch v. Maryland, which long ago established the judicial "test" for determining whether a federal law promulgated under implied federal power is constitutional:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

This boils down to a two-part inquiry.  First, the law must be directed toward a legitimate end, which McCulloch defines as one within the scope of the Constitution.  Second, there must be a necessary and proper fit between the means (the federal law) and the end (the enumerated power) it is designed to serve.  Following McCulloch, the means selected are "necessary" if they are "appropriate" and "plainly adapted" to the exercise of an enumerated power.  And the means are "proper" if they are not otherwise "prohibited" by the Constitution and not inconsistent with its "letter and spirit."  This is the test the Court must apply.

At the core of this test is the recognition that the Necessary and Proper Clause is not an independent source of federal authority.  Thus, a law that is not directed toward the enumerated powers fails the first prong and must not be enforced, no matter how attractive the law is as a matter of public policy.

This is how Thomas and Scalia would have decided the case.  As they write, "No enumerated power in Article I, Section 8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or other branches of the Federal Government with such a power."  In fact, the dissenters point out that the government was unable to identify any specific enumerated power as a constitutional predicate for the law.  This failure to tie the law to a constitutional source of authority should have been determinative under the McCulloch test, but it was not.  We should wonder why.

The dissenters hazard a guess: "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."  This echoes what the Court has proclaimed from time to time; the Court deals in the powers that the government has actually been given, not the powers it ought to have.  Such powers are not for the federal government to exercise, but are reserved, of course, to the states and the people generally.

I think the dissenters got this one right, and I hope that the whole Court is willing to embrace their brand of constitutionalism going forward.  For as long as the federal government seeks to expand its regulatory influence (think Obamacare), the Court will be asked to determine how far is too far for federal intervention.  These fundamental questions must be addressed by resorting to the Constitution, not public policy.