Congress

Putting a Stop to Congressional Overreach

It's time for the Supreme Court to enforce the Necessary and Proper Clause

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In early September, Fox News host Andrew Napolitano asked Rep. James Clyburn (D-S.C.), the third-ranking Democrat in the House of Representatives, precisely what part of the Constitution authorized Congress to enact health care legislation. "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do," Clyburn replied. "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

It was a rare flash of honesty from an elected official, revealing not only Clyburn's ignorance of the Constitution but his overt hostility to the document's system of checks and balances. And Clyburn is hardly alone. In legislation dealing with everything from crime to education, Congress routinely oversteps its constitutional bounds. As Napolitano later remarked, Clyburn seems "to have conveniently forgotten that the federal government has only specific enumerated powers."

Later this term, the U.S. Supreme Court will have a great opportunity to remind Clyburn and his colleagues of those limits when it hears oral arguments in the case of U.S. v. Comstock. At issue is the Adam Walsh Child Protection and Safety Act of 2006, which empowers federal officials to order the indefinite civil commitment of "sexually dangerous" persons who have finished serving a federal sentence, or who are currently in the custody of the attorney general because they were found mentally incompetent to stand trial. In other words, the government isn't willing to let these people back on the streets.

In its brief to the Supreme Court, the government argues that Congress possesses this authority under the Constitution's Necessary and Proper Clause, which grants Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

Yet as the text itself clearly specifies, any law passed under the Necessary and Proper Clause must also be tied to a specifically enumerated constitutional power, either one of the "foregoing powers" listed in Article I, Sec. 8, or one of the "other powers vested by this Constitution." As James Madison told the Virginia ratifying convention, the Necessary and Proper Clause "only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause."

So where among the "foregoing Powers, and all other Powers vested by this Constitution" did Congress happen to find an explicitly enumerated power to indefinitely detain "sexually dangerous" prisoners?

The answer is: Nowhere. The Constitution provides no such authority. Indeed, as a superb friend of the court brief filed in the case by Georgetown law professor Randy Barnett makes clear, "However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons….The Necessary and Proper Clause is not an independent source of Congressional power."

Nor may Congress rely on the Commerce Clause—another favored source for sweeping federal power. Under that clause, which the government has briefly raised as a justification in the case, Congress possesses the authority "to regulate commerce…among the several states," a power the Supreme Court has controversially extended to cover intrastate commerce as well as commerce "among the states." Most recently, in Gonzales v. Raich (2005), the Court permitted the federal government to regulate the local cultivation of medical marijuana in California on the extremely dubious grounds that such cultivation also affected the nationwide market.

Yet the law at issue in Comstock fails to meet even the Court's notoriously generous Raich interpretation—something the Barnett brief is careful to explain. As Justice Antonin Scalia held in his Raich concurrence, "Congress may regulate noneconomic intrastate activities only where the failure to do so 'could…undercut' its regulation of interstate commerce." Since overturning the law in Comstock would in no way undercut any legitimate federal regulation of commercial activity, neither Raich nor the Commerce Clause apply.

Which brings us back to Rep. Clyburn and his colleagues. With so many members of Congress either unwilling or unable to abide by the clear limitations imposed by the plain text of the Constitution, the time has come for the Supreme Court to rein them in. Enforcing the Necessary and Proper Clause is a great way to start.

Damon W. Root is an associate editor at Reason magazine.

NEXT: Hasan Had a Carry Permit (and Other Irrelevancies)

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  1. I predict a 5-4 SCOTUS decision.

    Dunno which side will prevail.

    1. The government’s side.

      1. The Chinese have learned English from his speeches and celebrated the way he rolls up his sleeves. Now President Barack Obama is finally coming, and he’s being greeted with “Oba Mao” T-shirts.

        One Beijing shop owner wanted to see what Obama could do for sales. Liu Mingjie created “Oba Mao” T-shirts, with the president wearing the uniform of the Red Guards, who caused chaos during the Cultural Revolution in the 1960s.

        http://www.sfgate.com/cgi-bin/…..&tsp=1

  2. Constitution? We don’t need no stinkin’ constitution.

  3. With so many members of Congress either unwilling or unable to abide by the clear limitations imposed by the plain text of the Constitution, the time has come for the Supreme Court to rein them in. Enforcing the Necessary and Proper Clause is a great way to start.

    Look! A Unicorn!

  4. Thanks for the heads-up and the link to Barnett’s brief. I hope the Court does the right thing.

  5. If even just half the people in this country had half a brain, any decision but to find this act unconstitutional would trigger a revolution.

    Of course, the politicians know this – and that they are quite safe.

    1. If even just half the people in this country had half a brain

      Yeah well, you know what I say about that.

  6. The biggest problem with this case is that it would mean sex offenders are not controlled by the authorities. People hate sex offenders and want them controlled forever, despite their actual sentences. This could go the wrong way because of whom it is being argued, not because it doesn’t have great merit on the whole.

    1. Which is why I fail to see anything wrong with this law. I mean like the government is supposed to protect us and all.

      1. Joanita?

      2. Protect us from what? I see no mention, nor any advocacy, of this particular type of law in any of the founding documents. I do believe that the Founding Fathers expected us to protect ourselves for the most part, and that the “government” should largely stay out of the way.

        In fact, indefinite detention, after a person has served his/her proscribed sentence, might just fall under the protection granted by the Eighth Amendment.

        1. I agree. That guy in St. Paul that stabbed and killed the 17-year-old who what robbing him didn’t wait for the frederal government to protect him. Because if he had, the wrong person would likely be dead now.

      3. In case you legitimately don’t get it:

        They could sentence the sex offenders to life in prison, problem solved. But they aren’t doing that. They are sentencing them to less than life, be it 3 or 5 or 20 years or whatever, and then once their sentences are up just keeping them locked up, monitored, or in some “treatment” facility somewhere. If they can incarcerate beyond the sentence, they can do anything to anyone at any time using this clause.

        1. This is no different than the internment of the Japanese-Americans in the 1940’s.

          See Korematsu for details.

          1. Yes it is.

            The Japanese-Americans were interned while habeus-corpus was suspended during time of war. This is specifically constitutional (wrong, but constitutional). These people are being interned for reasons having nothing to do with war and while habeus-corpus is in effect. That makes it worse!

    2. There is absolutely nothing wrong or illegal or unconstitutional about a State enacting the same legislation. Why do people insist on looking to the federal government to right every wrong, fix every ill, resolve every inconsistency, etc. The federal government was never envisioned by our founding fathers as being the correct venue for that kind of activity.

      “Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

      How much more clarity is necessary?

      If the States bypass their responsibility to their citizens, they do so at their peril. Or, if the citizens don’t do anything about it, then they don’t have to do anything. If you want your corner of the world protected, contact your local State Legislator and quit whining about how bad it is that the federal government isn’t fixing the problem.

  7. “How about [you] show me where in the Constitution it prohibits the federal government from doing this?”

    How about I show you where in the Constitution it allows congresscreatures to be impeached?

    1. HA!

  8. I can’t wrap my brain around it. These shitheads all swear to protect and uphold the constitution, and they actively defy it. Isn’t that actual, real crime?!? And now one of them admits ON RECORD that much of what congress passes as law is in open defiance of the constitution. That is a confession to a crime!!! And he KNOWS there won’t be any consequences for what he said. I don’t think it was a slip up, I think he was gloating. Like Conyers scoffing at the silly little people who expect him to read these bills before he signs them. Maybe fuckin Beck and all his melodrama is right

    1. Beck is right. His melodrama, not so much.

      1. Sometimes it takes melodrama to get attention to the wrongdoings of our government.

  9. It just shows how ignorant our elected officials are and how ignorant we have allowed the public to become through inadaquate education. The one document that IS the law of the land and is meant to protect every one of us, is being destroyed and ignored more and more. We cannot allow this to continue. We must all speak up and fight back! There are LEGAL ways to protect the people from predators–we do NOT need illegal ones. That said, if you do not understand the law of the land, do some research and do some reading. You might be surprised how you might come to appreciate our founding fathers.

  10. Obviously, there are supposed to be checks and balances, aren’t there. What happened?

    I should ask Clyburn that.

  11. I wonder what percentage of Clyburn’s constituents would be deeply offended by his comments.

  12. Yo, fuck James Clyburn

    1. Yea and verily, Tom. Clyburn should be smote about the head and shoulders.

  13. Other than a writ of attainder, the loss of civil rights upon death or an act of treason, this argument is specious.
    The First Amendment spells out the policy for determining the separation of the government from interference with the civil liberties of the people.
    In effect, Congress is prohibited from making any law that interferes with the thoughts, beliefs, and ideas of the people and any expression in speech, print, assembly, or petition of redress, no matter how stupid, malicious, insane, ludicrous, or rational and reasonable they may be.
    This was accepted after the powers of the government department were established because the new government knew that it could not govern a democracy any other way.
    The purpose of the powers given to the government are established in the preamble, to defend the nation, establish justice for each and every one of the people, insure domestic tranquility, in case the mob attempt to coerce the government to provide perks and privilege to special groups of citizens, and to promote the general welfare.
    Here we come to the responsibilities of government.
    Other than peace and safety, what is the general welfare? It is the promotion of health, education, and the use of resources to the benefit of all citizens.
    The capitalism which began with the inception of the nation and established the myth that the business of America was business has finally exposed itself as the cyclic death throes of an Empire. The use of foreign labor and resources, the use of private armies, the increase of an elite class of property owners, and the influence of that class upon government is no different from the Roman or British empires, with the same results.
    We do not need less government. We need to keep the government from the promotion of private groups and private values and to promote justice, only justice in any law.

  14. The flurry of states affirming the 10th Amendment speaks to this issue over the past year. While SCOTUS effectively repealed personal property rights within the last 10 years in favour of local government and corporatist money interests, there is no reason why the tide cannot be turned in this case.

    For all our Liberty, we should petition, write, act, pray, or otherwise demonstrate the necessity to turn back the encroachment of the Federal government into areas which originally motivated the states of Virginia and New York to add secession clauses to their “approval” of the Constitution.

    Without the proper and continuous trimming, government always will come to resemble the Hydra, a poisonous entity with the seductive song of the siren but an effect so pernicious as to rob individuals of their perspective as it removes their Liberty while they watch.

  15. Once the government has assumed a power, it will not give it up without revolution. I hate to say it, and I don’t the time is yet upon us, but that is the reason we’ve got the 2nd Amendment…

  16. “…what is the general welfare? It is the promotion of health, education, and the use of resources to the benefit of all citizens.”

    Promotion, Morton… not provision.

  17. the time has come for the Supreme Court to rein them in. Enforcing the Necessary and Proper Clause is a great way to start.

    umm.. Yeah. Let us know how that works out.

    1. I’m with you…

  18. I went to Rep. Clyburn’s website and clicked on the “Contact” link. Get a load of this:

    “Contact Us

    We encourage you to contact Representative James E. Clyburn. Mr. Clyburn is happy to respond to messages from his 6th District Constituents.

    Please enter your zip code so we can verify that you are a constituent of the 6thCongressional District.”

    If you enter a zip code outside of his district, you get this:

    “Your zip code indicates that you are outside of the 6th District of South Carolina.

    Regrettably, I am unable to reply to any email from constituents outside of the 6th District of South Carolina.

    Click Here to return to my home page.”

    God forbid he hears from anyone outside his district. Arrogant prick.

    1. But he’ll gladly take a campaign contribution from outside his district.

      http://www.opensecrets.org/pol…..=2010#cont

  19. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke

  20. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on.

  21. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

  22. the time has come for the Supreme Court to rein them in. Enforcing the Necessary and Proper Clause is a great way to start.

    umm.. Yeah. Let us know how that works out.

  23. In my opinion,the government’s side will prevail

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