Pre-Crime Detention Based on Enumerated (Yet Curiously Unspecified) Powers


Today the U.S. Supreme Court upheld a federal law that allows indefinite civil commitment of federal prisoners who have completed their sentences but are deemed "sexually dangerous." The Court, which in 1997 rejected a challenge to a similar Kansas law based on the Double Jeopardy, Due Process, and Ex Post Facto Clauses, did not deal with the usual constitutional objections in this case. Instead it addressed the question of whether the federal government, as opposed to the states, is authorized to detain people based on sex crimes they might commit in the future. The seven-justice majority concluded that it is, finding that civil commitment of "sexually dangerous" prisoners is a "necessary and proper" means of "carrying into execution" the federal government's enumerated powers. Yet the majority opinion by Justice Stephen Breyer never identifies the powers that provide the authority for this law. The omission is telling, especially since all nine justices agree that the Necessary and Proper Clause does not give Congress any independent powers.

Instead of citing specific powers, Breyer says the civil commitment law is justified by whatever enumerated powers underlie the federal criminal statutes that sexually dangerous prisoners are convicted of violating. Three of the five prisoners in this case, for example, were convicted of possessing child pornography, which Congress banned based on its authority to "regulate commerce…among the several states." Other cases might involve people whose crimes were treated as federal offenses because of a case-specific connection to interstate commerce, such as a bias-motivated assault committed with a baseball bat manufactured in another state. (I kid you not.) As Breyer notes, "the Constitution…nowhere speaks explicitly about the creation of federal crimes beyond those related to 'counterfeiting,' 'treason,' or 'Piracies and Felonies committed on the high Seas' or 'against the Law of Nations.'" But that has not stopped Congress from criminalizing a wide range of offenses (including many already addressed by state laws), based on thin or nonexistent constitutional pretexts.

Rather than questioning the constitutional basis for the criminal statues on which the civil commitment law relies, dissenting Justice Clarence Thomas (joined by Antonin Scalia) argues that the law "is aimed at protecting society from acts of sexual violence, not toward 'carrying into Execution' any enumerated power or powers of the Federal Government." Even if we assume the validity of the criminal statutes, civil commitment of "sexually dangerous" prisoners is not necessary to carry them out. The criminal statute has been fully executed at the point where someone convicted of violating it completes the sentence it prescribes, which is precisely when civil commitment takes effect. "The statute," Thomas notes, "therefore authorizes federal custody over a person at a time when the Government would lack jurisdiction to detain him for violating a criminal law that executes an enumerated power."

As further evidence that the authority to commit a "sexually dangerous" prisoner after he finishes his term does not flow from the authority to criminalize his offense, Thomas notes that the offense need not be a sex crime. One-fifth of the cases have involved prisoners who were not convicted of a federal offense involving sexual violence. Someone serving time for mail fraud or tax evasion could be be treated as a "sexually dangerous" prisoner if the government presents "clear and convincing evidence" of a tendency to commit sex crimes, which need not include a criminal conviction. Furthermore, Thomas writes, "the definition of a 'sexually dangerous person'…does not require the court to find that the person is likely to violate a law executing an enumerated power in the future." In other words, the law is only tenuously related to federal criminal statutes, which themselves may be only tenuously related to an enumerated power.

"No enumerated power…expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons," Thomas writes, "nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power….The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it." He warns that the majority's opinion, which requires no more than a "rational" connection between a federal law and the enumerated power to which it is allegedly related (and which in this case is not even cited), "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"

The decision is here. Previous coverage of the case here and here.

NEXT: Judicial Restraint or Constitutional Abdication?

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  1. This seems as bad, or even worse, than the decision the supremes handed down in Raich.

    Fucking assholes, every one of them.

    1. Fucking assholes, every one of them.

      Ummm, did you notice it was a 7-2 decision, with Justice Thomas ripping into the majority's opinion, and Scalia joining the dissent?

  2. As bad as Raich was, this is far, far worse.

    1. After reading a bit more detail, maybe it isnt as bad as I thought, depending on your views on committing the insane.

      1. "depending on your views on committing the insane."

        That is the problem. Who defines what insane is? The state. Could the state define certain political views as insane? Why not. They do in North Korea and Cuba. We are headed in that direction. Cas Sunstein says defines "anti-government" as disagreeing with the government's policies. Why not also call it insane?

        1. Anyone who disagrees with me on anything is insane.


    1. Yes, we should civilly commit the children since they are born and till they die! That way they will never be in danger from anyone, or posing a danger to anyone!

  4. I won't take back all the mean things I've said about Scalia and Thomas, but I will take them out to dinner at the Ritz. We don't burn witches any more, but, thanks to the "liberals" on the Supreme Court, we do subject them to indefinite civil detention.

    1. I'd say this case is an excellent example of why libertarians should prefer Republican Presidents to Democrat ones. At least with an (R), there's a chance we get justices who at least sometimes understand how the Constitution limits federal power.


        1. I dunno, Epi, I think he's right. Doesn't change anything for me, because I still won't vote and the Rs will still appoint someone whose a rabid statist asshole. But at least there's a chance.

          1. Basically what he's saying is that even a stopped clock is right twice a day, so vote for the stopped clock. Which makes no sense, unless you realize it's just more TEAM RED TEAM BLUE bullshit; and I am so fucking sick of the TEAM RED morons trying to convince us to vote for them.

            1. Sorry, I'm not a "Team Red moron." I'm a registered Libertarian who often votes that way. However, unlike many of the purist, dorm-room idealists around here, I live in the real world, where, regardless of my preferences, Libertarians almost never get elected to any office, much less the presidency. In recognition of that, it's entirely rational to prefer it when an (R) gets to nominate justices.

              1. yes. yes. the problem is there are not enough votes for us; the solution is to not vote for us. are you an economist?

                1. It's called tactical voting. If my first choice is going to get 2% of the vote, and the two big parties are at 49-49, doesn't it make sense for me to vote for the lesser evil? Sure, you can say "if everyone did that...", but I think I'm just acknowledging reality. It doesn't advance libertarian goals re the Supreme Court to elect Democrats to the Presidency, and unfortunately, voting Libertarian for President often helps elect Democrats. I wish it wasn't true, but that's just the way it is.

            2. Which makes no sense, unless you realize it's just more TEAM RED TEAM BLUE bullshit;

              Yes, I'm really tired of all your TEAM RED TEAM BLUE bullshit, where you always lump people together into categories, Episarch. Why do you always treat all people in one Team exactly the same?

              It's stupid to say that people should prefer "all Republicans" or "all Democrats." It's also stupid to pretend that all are equally evil.

            3. Episiarch is sooo obsesssed with TEAM RED TEAM BLUE bullshit that he can't tell the difference between Alito and Roberts and Scalia and Thomas.

              You really need to get over your obsession with viewing people as groups.

      2. I get better odds in Vegas.

      3. Gag, Gaaagh, (Hurl)

        Man you made me lose my lunch.


  5. Justice Thomas is clearly the only Justice left that remains constant in his defense of constitutional principles. You may not agree with his political philosophies, but his decisions start and end with "is this constitutional or not?".

    It's fascinating to read this NYT's article comparing the race issues of Justice Sotomayor and Justice Thomas during their careers, and how it shaped their judicial philosophy. Justice Thomas clearly resents the idea that his race should be used as a crutch/excuse or an advantage in an affirmative action type way, whereas Sotomayor embraces these ideas of affirmative action to correct years of racial disparity.

    It explains a lot about why Justice Thomas comes to the conclusions he does. He is aware that our Constitution is all that is needed to maintain the rights of every individual, regardless of race or ethnicity (or even age), instead of using it to attempt to redress historical grievances.

    1. It was a 7-2 decision, with Scalia joining Thomas.

      1. Yes, but Scalia isnt that consistent. Like on Raich.

      2. I understand that Scalia agreed with Thomas, but even he fails to remain consistent in other decisions in terms of constitutionality. Thomas starts and ends with that question, which is why he rarely asks questions in opening arguments. He knows what his job is -Constitutional or not?- and goes from there.

    2. I have to give Thomas his due on this one.

      If you want it to carry a longer sentence, make it so.

  6. Well, OF COURSE Thomas voted against it. He'd have to go to jail!




  7. I'm confused why they just don't lengthen the sentences (at the time of trial of course) for these people. THAT is when you should determine how long they will rot. By definition once they have served their time, they should be released.

    1. +This. Of course our prisons are overcrowded, and all, know.

      1. And if drug legalization begins to take effect, you'll need many replacements to keep the prison business going strong. Sure smells like that to me.

  8. Yet the majority opinion by Justice Stephen Breyer never identifies the powers that provide the authority for this law. The omission is telling, especially since all nine justices agree that the Necessary and Proper Clause does not give Congress any independent powers.

    Breyer must be speaking of the "new professionalism" of US Attorneys to not bring frivolous motions to detain indefintely.

    I'm sure they can be trusted with this new and virtually unlimited power that can be used to crush inconvenient political enemies.

  9. Life without parole for looking at pictures?

    That sounds reasonable.

    1. In their defense, I think they include reading stories too.

    2. No, it's not "Life without parole".

      It's 2-5 years, followed by indefinite detention based upon a claim supported by a suspicious lack of evidence on the part of the government.

      But. It would be difficult for me to rule in favor of child molesters. I think they should be hanged immediately upon conviction, but hey, I'm a barbarian like that.

      1. Right, since there are never any wrongful convictions based on faulty eyewitnesses, biased juries, coached child testimony, planted memories, or anything like that.

        When did looking at pictures or reading stories become child molestation, btw?

        1. Not to mention, there's a lot of data that suggests that "child molestation" isn't necessarily harmful, especially if the child liked it at the time.

          In fact, one study which looked at five types of child abuse found that the worst type of child abuse combined physical and emotional abuse with physical and emotional neglect - but add to this mix sexual "abuse" and harmfulness fell to 8th place, suggesting that sexual "abuse" is actually a mitigating factor for other types of abuse. Naturally, the authors of that study did not dwell on the fact or even deign to notice this result, but it is not surprising given that "sexual abuse" can vary from violent rape to playing snugglebunnies, according to the law. (In this study, "sexual abuse" behaved curiously different from the other four types of abuse).

          Of course, there's also the Rind Report and plenty of other data - but that is all ignored as politically inconvenient.

  10. "The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

    Man, I was so glad to see this statement. It is one I have uttered in nearly the same form many times. How many people are unable to grasp this simple concept? Seems like way too many. But a very unpopular concept these days. I mean, what else is big gubmint for, if not to make sure nothing icky ever happens to me and ensure I have a nice, happy life?

    1. Whereas this supreme court decision may well be the touchstone for the coming civil unrest and possibly war, I daresay that big gubmint has catrastrophically failed in this regard.

  11. Since most people with computers and internet connections cannot be sure there isn't kiddy prawn somewhere on their hard drive, I think people should be very, very concerned by this.

    1. And how long before someone wants to expand it to "hate crimes"?

      1. Since recidivism is their concern, some sort of re-education would be necessary. The convict would then have to prove, in some fashion, that he truly DID love Big Brother.

      2. terrorist risk anyone?

    2. There is no juvenile shrimp on my hard drive.

      1. Sorry, that should have read "kitty pr0n". Got any of that?

  12. I know slippery slope arguments are only marginally valid in legal proceedings, but did any of the majority justices pause to think where this might lead, enumerated powers aside?

    Seriously, this is maybe two steps (and a little technology) removed from "Minority Report."

    It's a tough question what to do with sexual predators who are unable to control their impulses. But they have constitutional rights, too. And the "cure" in this case appears to be worse than the disease.

  13. This was one of the con law questions on the final for the course constitutional law at University of Wisconsin-Law School.

    Not that I agree with this opinion, but it is consistent with the court's thinking since Raich to use the commerce clause for this type of non-economic regulation (incarceration, etc.,).

    That is to say that this isnt judicial activism on its face.

  14. Why does this only cover sexual crimes? Why not cover violent crimes? Drug crimes? Anti-American crimes? Aren't all of these things just as dangerous to society as sexual crimes?

    1. Those crimes are not alleged to be symptoms of diseases. And the case in question doesn't cover only sexual crimes, but also other characteristics which make a prisoner too dangerous to release. The prisoner might have acquired such tendencies (not necessarily criminal ones) during incarceration for completely unrelated crimes.

  15. This is a scary ruling. Only Scalia and Thomas know anything about our Constitutional rights. What ever happened to "If you do the crime, you do the time"? Now its, if you do the crime, you do the time FOREVER.
    I thought Alito and Roberts were smart. But I see they are IDIOTS too, along with the other liberals on the bench.

    1. No, now it seems to be "you do the time even if you haven't yet done the crime."

    2. It fell in with the interpretation of copyright law "for a limited time" meaning "forever less a day".

  16. this country can't go bankrupt soon enough.

  17. "President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act"

    Good too know that we have laws named for a child who died because his mother couldn't be bothered to keep track of him, and decided that the toy department in Sears was an adequate babysitter.

    1. Am I the only one to presume that Adam Walsh was actually sexually tortured and killed by John Walsh, and all his actions since then have been to try to deflect the blame? It's the only explanation that makes sense to me.

  18. Won't this also be a victory for GWB re Gitmo indefinite detentions? So if Abdulah is convicted and jailed for 10 years, when the time is up this basically gives the gov't all the authority they need to detain forever.

    1. Not necessarily. Though if the government could argue that Abdullah is potentially sexually dangerous, then sure. Though depending on how he treats his wife, I suppose they could make that case.

  19. Kagan is obviously sexually dangerous...just look at her ugly mug!

  20. Please think, it doesn't hurt THAT bad.

    This is just the state's power to hold a crazy person in an insane asylum if they are a danger to themselves or others.

    This power has been used for centuries.

    The 'sexually dangerous' part simply clarifies one of the dangers an insane person may pose that justifies civil commitment. Lots of schizophrenics, etc. are civilly confined, often effectively for life. Those making 'not guilty by reason of insanity' pleas get committed and usually are incarcerated far longer than the theoretical prison sentence they might have faced.

    The real issue is whether these guys get meaningful due process to have some hope of being let go if they are able t control themselves, or if it is like the Social Security or Veteran's Administration review boards on disability that always turn them down and are found to have acted without any basis in fact or law 75% of the time.

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