Once, when it was fashionable to worry about Congress or the president asserting limitless authority to detain people, we would have been nervous about a Supreme Court decision expanding the authority to do so. But by now we have mainly slept our way though the Obama administration's talk of indefinite detention for Guantanamo detainees, generalized wobbliness on civilian trials for terrorists, embrace of the state secrets doctrine, and recent discussions about "modernizing" the Miranda warning, as well as a host of other Bush-lite war-on-terror powers. 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?
I am talking about the 7-2 decision in Monday's United States v. Comstock, a case that asked whether the federal government has the authority to continue to indefinitely detain a person who has served out his federal prison sentence, or who is deemed incompetent to stand trial, if the government has clear and convincing evidence that he is a "sexually dangerous" person. The high court had already granted state governments this power. But precisely because this is the traditional realm of the states, the 4th Circuit struck down the civil confinement federal statute, finding that it "granted the federal government unprecedented authority over civil commitment—an area long controlled by the states."
But yesterday, writing for a majority that crossed ideological lines, Stephen Breyer said that the government could indeed hold such people, under the Necessary and Proper Clause of the federal Constitution. The opinion (summarized by Adam B at Daily Kos here) listed five reasons supporting congressional authority to enact such legislation. Since Congress can do things like create prisons, ensure the safety of prisoners, and deliver mental-health care to prisoners, writes Breyer, the power to hold someone even after his sentence is served is reasonably related. He reasons that if the confinement of a prisoner infected with, say, a communicable disease is "necessary and proper," then "how could it not be similarly 'necessary and proper' to confine an individual whose mental illness threatens others to the same degree?" In a strong dissent, Justice Clarence Thomas said that "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."
Sharp-eyed commentators have already observed that the decision in Comstock may go a long way toward shoring up Congress' constitutional power to enact sweeping health care reform. As David Savage noted yesterday in the Los Angeles Times, the "Supreme Court set a potential blueprint Monday for upholding the recently enacted healthcare law and its mandate that all Americans have insurance, saying Congress has a 'broad authority' to pass laws that are 'rationally related' to its constitutional aims." Professor Randy Barnett disagrees. But the more worrisome question is whether this very expansive view of federal crime-fighting authority would carry over to terrorism suspects whom the government may want to detain without trial.
The bloggers at the Volokh Conspiracy first sounded the alarm. Even before the ruling, they questioned Solicitor General Elena Kagan's broad federal power analysis in arguing this case and whether her arguments could have implications for national-security detentions. Orin Kerr wrote: "Indeed, her argument struck me as sort of shockingly broad: She 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." Eugene Volokh, looking closely at the decision Monday, concluded that "the brief resurrection of the enumerated powers doctrine, under which courts would strike down some Congressional actions as going beyond the constitutionally granted powers … may be largely over."
The result in Comstock also highlights the deep differences among the four traditionally conservative justices on questions of federal power and the differences between Roberts and Alito and the conservative justices they replaced. As my friend Rodger Citron suggested after Comstock was argued, "both Roberts and Alito served in the federal government and … they may be inclined to be pragmatic with respect to the need, in limited situations, for the exercise of federal power and authority." (Compare Roberts and Alito's view of federal authority to that of Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor).