The Necessary and Improper Clause?

by Beverly Mann
crossposted with The Annarborist

The Necessary and Improper Clause?

“Is it possible that most of us haven’t noticed that the Supreme Court has just handed Congress broad authority to detain people merely because they show signs of future dangerousness?”
—Dahlia Lithwick, “Detention Slip: The Obama administration wants to hold terrorists. Did SCOTUS just give them a green light?” in Slate

The opinion Lithwick is discussing there is United States v. Comstock, a majority opinion by Justice Breyer, issued May 17. As Breyer explains at the outset, a federal civil-commitment statute, 18 U.S.C. § 4248, authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. And, although it would seem that the obvious constitutional issue would be whether this violates constitutional due process guarantees, the Court already decided that issue, it turns out, in two cases, Kansas v. Hendricks, a 1997 opinion that interpreted the Fourteenth Amendment’s due process clause in relation to a Kansas statute that allowed the state to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released, and Kansas v. Crane, a 2002 opinion that interpreted, well, Kansas v. Hendricks.

More about the two Kansas opinions later. For now, it is necessary and proper only to explain that Hendricks held that the Kansas statute did not violate the right to due process, and that Crane held that that statute did violate the right to due process clause because it did not contain a provision requiring the state to prove a volitional impairment as well as an emotional or personality disorder; without proof of volitional impairment, there was no indication that the person posed a continued danger—a prerequisite due-process justification for involuntary civil commitment. And that, since the federal statute does contain such a provision, and in any event since the Court was not asked in Comstock to decide the due process issue, the Court declined to address the constitutionality of the federal statute under due process jurisprudence and instead addressed it only under the Constitution’s Necessary and Proper Clause.

The lower federal court had held the statute unconstitutional solely on the ground that none of the Constitution’s “enumerated powers” accorded to the federal government enumerated the power to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released, and that the Constitution’s Necessary and Proper Clause was insufficiently broad to authorize this particular federal legislation. The Necessary and Proper Clause, Article I, section 8, clause 18, which grants Congress the authority to enact legislation as “necessary and proper for carrying into Execution” the powers “vested by” the “Constitution in the Government of the United States”—a.k.a., the “enumerated powers.” So Breyer’s opinion in Comstock decides only whether under the Necessary and Proper Clause, Congress has the authority to enact legislation authorizing the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released.

Seven of the justices—all but Thomas and Scalia—think it does, but only five of them, Breyer, Roberts, Stevens, Ginsburg and Sotomayor, think the Clause is so broad and elastic that Comstock is causing some commentators, Lithwick and many others, to worry that the Court might have just handed Congress broad authority to detain people merely because they show signs of future dangerousness. A justification that, as Lithwick notes in her article, would authorize the permanent detention of anyone held without trial as an “enemy combatant.” But while I understand the reason for that concern, I don’t really share it.

Instead, count me among those who, like (as Lithwick mentions) Los Angeles Times Supreme Court correspondent David Savage, view Comstock not as really about the “enemy combatant” issue but instead about an even higher-profile political issue: whether the Necessary and Proper Clause gives Congress the authority to enact legislation such as new federal health-insurance legislation, and not about “enemy combatant” detainees, And such as the imminent financial-sector-reform legislation. And such as the perhaps-eventual climate-change legislation. I think that, for all the justices except Roberts, Comstock was really about neo-federalism.

Neo-federalism is the conservative legal philosophy that holds (among other things) that the federal government’s two-pronged powers—the right to legislate and the right to require that state and local governments not infringe upon the constitutional rights of individuals—are limited to the constitutional rights and to legislation that comport with the conservative Republican political and ideological agenda of that party’s business, law-and-order, and culture-wars supporters, circa 1985.

Under this legal theory, the Constitution bars, for example, state or municipal legislation that circumscribes gun sales and gun possession. But the Constitution does not require states or municipalities to comply with constitutional rights that are not quite so popular among some faction of the Republican base.

Breyer, Stevens, Ginsberg and (I suspect) Sotomayor, like most liberals who have a law degree, loathe neo-federalism. And for these justices, Comstock was almost entirely about establishing precedent that will be invoked later to defeat neo-federalist arguments and uphold the health-insurance law and the other domestic-agenda legislation that are current subjects of such hot political and ideological debate. For these justices, Comstock was not a proxy for rulings on the rights of “enemy combatant” detainees. Or for the rights of criminal defendants generally.

But, as Lithwick and others note, that would not prevent the Court from using the opinion to hold in a later case that Congress broad authority to detain people—designated “enemy combatants” or anyone else—merely because they show signs of future dangerousness, if Comstock does hold, by dint of some very strange analysis (such as it is) in that opinion, that Congress has this carte blanche authority.

But I don’t think it does.

Lithwick and many other commentators focus on the section of the opinion in which Breyer justifies his view of the Necessary and Proper Clause as broad enough to permit the statute at issue if that statute does not violate some other constitutional provision. Congress, Breyer says, has the authority to create prisons, to ensure the safety of prisoners, and to provide mental-health care to prisoners. He then pronounces the power to hold someone beyond his sentence reasonably related to those other functions if the purpose is to protect the public.

“If,” Breyer says, “a federal prisoner is infected with a communicable disease that threatens others, surely it would be ‘necessary and proper’ for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others.” And if such confinement is “necessary and proper,” then how could it not also be ‘necessary and proper’ to confine an individual whose mental illness threatens others to the same degree, he asks. Rhetorically.

He then says the statute at issue is “reasonably adapted” to Congress’ power to act as a responsible federal custodian—“a power that rests, in turn, upon federal criminal statutes that legitimately seek to implement constitutionally enumerated authority.” Joseph Heller couldn’t have phrased it better. The statements are a series of non sequiturs and tautologies. The conflation of punitive authority with public health authority is nonsensical. The former authority cannot logically justify the latter authority, and the punitive custodial authority does not naturally morph into a public health authority once the punitive custodial authority has, by law, ended.

Breyer appears, upon first impression, to have adopted current Solicitor General and Supreme Court nominee Elena Kagan’s argument to the Court—at least in part. Kagan herself presented the oral argument in Comstock, and, as Lithwick mentions, Orin Kerr, of Volockh Conspiracy, has described her argument to the Court in Comstock as shockingly broad. Kerr is spot-on in that assessment. He said Kagan argued “that the Constitution gives the federal government the general power ‘to run a responsible criminal justice system,’ and that anything Congress plausibly thought a part of running a ‘responsible criminal justice system’ was within the scope of federal power.”

Coming from a United States solicitor general and a Supreme Court nominee, that indeed is shocking. But, the loopy analogies aside, I don’t think Breyer’s Comstock opinion actually holds this. We are not like the old Soviet Union; our Constitution has been thought to bar the criminal justice system from incarcerating people in prisons, for “mental illness,” or even for mental illness, absent the commission of a crime, due process, and a definitive prison sentence.

Or at least were not, and I don’t think Comstock changes that.

True, Comstock does appear to conflate the criminal justice system and the public health system by saying that the proper constitutional authority under the Necessary and Proper Clause to prevent a deadly epidemic of a contagious disease is the criminal justice authority—or, to borrow from Kagan, the general power ‘to run a responsible criminal justice system. But the public-health authority, which does allow governments, state and now federal, to force civil commitments of mentally ill people who are dangerous to themselves or others, and to detain someone who has a disease that is both deadly and highly communicable by the person’s mere presence—but only under very specific, very high standards of both procedural and substantive due process. Substantive due process is a longstanding constitutional doctrine that limits the types of infringements upon individual freedoms that the government can legislate. (Roe v. Wade is the most famous substantive-due-process case.)

For Roberts and Alito, interpreting constitutional and statutory provisions is always easy, because it entails a mechanical formula: every provision of the Constitution, every statute, every government action, is interpreted in accordance with 1980s Republican political ideology, and always serves the interests of some faction of the Republican base. So, for example, the police powers of the federal government and of state and local governments never violate the Constitution unless the right at issue is a favorite of the political right. The law-and-order right likes the federal statute at issue in Comstock.

So for Roberts and Alito both, the statute at issue in Comstock is constitutional. And for both of these justices, the Necessary and Proper Clause does not authorize the new health-insurance statute, at least not all of it, Roberts’ agreement with Breyer’s entire opinion notwithstanding. Thomas and Scalia surely will side with them there, but their jurisprudence is at least more complicated, if only on a fair-weather basis.

And in Comstock, the weather was fair. Thomas nails it when he says in his dissent, “The fact that the federal government has the authority to imprison a person for the purpose of punishing him for a federal crime—sex-related or otherwise—does not provide the government with the additional power to exercise indefinite civil control over that person.” What, pray tell, does authority to build and maintain prisons, and the authority (and obligation) to provide medical treatment to ill inmates, and to isolate the general inmate population from an inmate who has a serious contagious disease, have to do with whether the federal government has the legal authority under the Necessary and Proper Clause to enact any legislation it wishes to incarcerate anyone beyond his or her sentence?

Kagan’s jurisprudential philosophy seems to be that any statute enacted by Congress, or any executive-branch administrative agency policy (promulgated “regulations”) is constitutional by sheer virtue of the fact that one of the elected branches of government enacted or promulgated the statute or regulation. But clearly, the current justices do not. Best as I can tell, not even one of them. The current ones, that is.

A broader view of Comstock would effectively nullify huge portions of the Constitution—every right accruing to individuals. Even those that the Right likes. Even Second Amendment rights! It would tacitly reverse Marbury v. Madison, the famous Supreme Court opinion that established the principle of judicial review of the constitutionality of federal statutes.

Again, including those that may infringe upon Second Amendment rights.