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Michael C. Dorf

The Supreme Court's Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the Constitutionality of the Individual Mandate to Buy Health Insurance?


Wednesday, May 19, 2010

On Monday, in United States v. Comstock, the U.S. Supreme Court upheld the power of the federal government to confine mentally ill, sexually dangerous prisoners beyond the expiration of their criminal sentences. Interesting in its own right, the case also provides a window into the thinking of the various Justices on core questions of federalism.

Comstock could thus become an important precedent if and when the Court is asked to rule on the individual mandate to purchase health insurance that was recently adopted as part of the federal health care reform law. Meanwhile, with tea-party activists having organized their movement around the principle of limited government–including, especially, opposition to the individual mandate–questions about Comstock could also play an important role in the upcoming confirmation hearing for Supreme Court nominee Elena Kagan.

The Constitutional Challenge to the Government's Confinement Power

Under a program first adopted in the late 1940s and most recently modified by a 2006 federal law, some prisoners who are otherwise eligible to be released because they have served their sentences may be held–potentially indefinitely–as "sexually dangerous" upon two conditions: First, clear and convincing proof must be presented to a court that, by virtue of a mental disease or defect, the prisoner would have serious difficulty refraining from sexually violent conduct or child molestation if released. Second, it must be the case that neither the state in which the prisoner is confined nor the state in which he was tried (if that is a different state) is willing to accept custody over him.

The Comstock case was a challenge to the 2006 law. Comstock and the four other prisoners involved in the case raised a variety of constitutional objections to the law. Notably, however, the Court did not address what many readers may regard as the core question the law presents: Can any government hold someone as "sexually violent" even after he has completed his sentence for the crime that led to his conviction?

Although the Court majority said that it was not expressing a view on the rights questions, it did include a citation of a 1997 decision, Kansas v. Hendricks, that speaks to those questions. In Hendricks, the Court upheld a Kansas law that authorized the state to hold a "sexually violent predator" following a civil commitment hearing, even when the same evidence that resulted in civil commitment was also the basis for a criminal conviction for which the prisoner had served his sentence. The Hendricks Court said that given the preventive purpose of civil commitment, there was no inconsistency between a completed criminal sentence and continuing confinement.

In this week's decision, the Comstock Court did not revisit Hendricks or evaluate the arguments that have been advanced for distinguishing the Kansas law from the federal law. Instead, the Justices resolved a single issue: Did Congress have the affirmative power to enact the 2006 law? Or, in constitutional-lawyer-speak, does the federal law fall within the "enumerated powers" of Congress?

By a vote of 7-2, the Court said yes. Writing for a five-Justice majority, Justice Stephen Breyer penned the opinion that upheld the law. Significantly, Chief Justice John Roberts joined Breyer's opinion in full. Although disagreeing with some of the more sweeping language in the majority opinion, Justices Anthony Kennedy and Samuel Alito each wrote a separate opinion agreeing with the result. Only Justices Clarence Thomas and Antonin Scalia dissented.

The Federalism Challenge, and the Majority's Response

The Supreme Court's precedents recognize that, with proper procedural safeguards, the states have the power to civilly commit people who are mentally ill and dangerous–whether the danger they pose is to self or others, and whether that danger is of a sexual nature or otherwise. However, under the federal Constitution, states have reserved powers that are not granted to the federal government. For the federal government to act, it must have been granted the affirmative authority to do so by the Constitution. Yet nowhere does the Constitution expressly grant Congress the power over civil commitment.

To be sure, the Court has long recognized that Congress enjoys broad implied powers. Thus, to give the leading example, drawn from the 1819 case of McCulloch v. Maryland, Congress has no express power to charter a bank, but that power can nonetheless be inferred from the express powers Congress does have–including powers to regulate interstate commerce, lay and collect taxes, and spend for the general welfare. Modern cases sustaining congressional power to regulate in areas not expressly described in the Constitution typically cite McCulloch for the proposition that Congress must be given broad leeway to choose the means to effectuate the ends that are marked out in the constitutional text.

All nine Justices agreed with that proposition in Comstock. So too, there was no disputing that Congress has the power to imprison people for crimes committed in violation of valid federal laws, even though, as the majority noted, the Constitution only expressly authorizes criminal punishment for a handful of offenses (such as counterfeiting and treason). The power to enact a law in the first place implies the power to establish a system of criminal justice to punish offenders.

However, the prisoners argued that their case was different. The 2006 law only comes into play after a prisoner has completed his sentence for violating some underlying federal law. Moreover, as Justice Thomas noted in dissent, a prisoner can be categorized as sexually violent–and thus subject to further confinement–even though his original crime had nothing to do with sexual violence. How then, he asked, can Congress be said to derive its power to continue such a prisoner's confinement from the criminal law he long ago violated?

The majority answered that the power to confine prisoners carries with it the power to take account of safety issues in considering whether and how to release them. Justice Breyer gave the following analogy: "If a federal prisoner is infected with a communicable disease that threatens others, surely . . . the Federal Government [could] 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," even absent the risk of an interstate epidemic that would bring federal custody within the scope of the Commerce Clause.

What Does Comstock Imply About the Individual Mandate?

In a column last year, I argued that an individual mandate to purchase health insurance–which was then under consideration, and now has been enacted–should survive a constitutional challenge because it falls within either Congress's power to tax or its power to regulate interstate commerce. The Comstock decision further confirms that the Court would find the individual mandate valid under the Commerce power. To see why, it is worth comparing and contrasting Comstock with two other Commerce Clause decisions: the 1995 decision in United States v. Lopez and the 2005 decision in Gonzales v. Raich.

In Lopez, the Supreme Court invalidated the federal Gun Free School Zones Act, which had been defended on the ground that guns near schools affect interstate commerce. That's not enough, Chief Justice Rehnquist said in writing for the majority, because in a complex economy, literally everything affects interstate commerce. Where the effect on interstate commerce is mediated by one inference after another, Rehnquist concluded, Congress may not regulate non-economic activity (such as simple possession of a gun).

Then, ten years later, the Court upheld the application of the federal Controlled Substances Act to marijuana that was locally grown for local consumption. Consistent with the Lopez framework, Justice Stevens wrote for the majority that marijuana cultivation is "economic activity." But beyond that, the majority noted that regulation of marijuana that is cultivated purely intrastate was regarded by Congress as essential to the regulation of the larger interstate market. As Justice Scalia explained in a separate opinion concurring in the result, "the regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself ‘substantially affect' interstate commerce."

That proposition appears to be accepted by eight members of the Supreme Court, excepting only Justice Thomas, who, in previous cases has expressed a willingness to abandon much of the modern Commerce Clause jurisprudence. Justice Scalia generally accepts the modern doctrine, but nonetheless joined Justice Thomas in dissent in Comstock because he thought that the federal civil commitment of sexually dangerous ex-felons simply was not in any way essential to their prior criminal confinement. However, Scalia–and, as importantly, the seven Justices in the majority–were fully comfortable with federal power extending to areas that are not independently regulable, so long as regulation in those areas is reasonably related to regulation that is within the scope of congressional power.

Applying that principle to the individual mandate to purchase health insurance is straightforward. The federal law forbids health insurers from refusing or dropping coverage based on pre-existing conditions. That prohibition is undoubtedly a regulation of "economic activity" as required by Lopez. But the prohibition by itself would create an incentive for uninsured healthy people to game the system: They could take their chances without health insurance unless and until they got sick; at that point, they could buy health insurance without fear of being turned down for a pre-existing condition; and as a result, the system would not function, because a pool composed exclusively of sick people would not produce sufficient premiums to cover the cost of their medical treatment. Thus, Congress had a reasonable basis for including the individual mandate in the health care legislation as a means of effectuating the prohibition on refusing or dropping coverage for pre-existing conditions.

Implications for the Upcoming Confirmation Hearing

Notwithstanding the foregoing analysis, it is possible that five Justices could vote to invalidate the individual mandate to purchase health insurance. In my view, doing so would be very difficult to square with the rulings in Raich and Comstock, but predicting how the Supreme Court will rule on any issue is an inexact science at best.

Meanwhile, it would not be surprising if Elena Kagan were to refer to Comstock in her upcoming confirmation hearing. Seeking to build support among their base, one or more Republican Senators who voted against the health care reform bill could press Kagan on whether she thinks the individual mandate is constitutional.

Following the pattern of other recent nominees, Kagan can be expected to decline to answer questions about an issue that could come before the Court. At that point, Senators might follow up with questions about her more general views about the Commerce Clause. Kagan could try to dodge those questions too, by contending that she cannot speculate about generalities absent a concrete case. Yet that would be precisely the "pincer movement" she decried when employed by then-Judge Ruth Bader Ginsburg seventeen years ago.

A more effective tactic for Kagan might be simply to recite her understanding of the precedents as they exist. Citing Comstock–and the fact that its result was endorsed by such friends of federalism as Chief Justice Roberts and Justices Kennedy and Alito–Kagan could say that congressional power under the Commerce Clause remains quite broad in scope. And, she might add, if a Senator thinks any particular matter should be left to state regulation, he has at his disposal a more powerful tool than grilling a Supreme Court nominee: He can simply vote against its federalization.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at

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