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Rodger Citron

United States v. Comstock: Will the Supreme Court Uphold the Federal Government's Power to Commit Sex Offenders, or Invoke Principles of Federalism?


Monday, February 8, 2010

Currently pending before the Supreme Court is an important case, United States of America v. Comstock, that will test whether Chief Justice Roberts and the Court's conservative majority are willing to extend the protections of federalism even to sex offenders. My initial impressions of the oral argument, held in January, suggest that the answer is no. But, of course, the nature of the oral argument is never a guarantee of the outcome of a case.

Comstock involves a challenge to a federal statute, 18 U.S.C. §4248, that authorizes the civil commitment of "sexually dangerous" persons by the federal government. The United States Court of Appeals for the Fourth Circuit invalidated the statute, stating that the law "grant[s] the federal government unprecedented authority over civil commitment – an area long controlled by the states."

In this column, I will focus on what impressions can be drawn from the oral argument in Comstock. Based upon my review of the argument transcript (as well as the briefs submitted to the Court), it seems likely that the Supreme Court will reverse the Fourth Circuit and uphold the statute as constitutional.

Such a reversal would tell us a great deal about how the current Court views the doctrine of federalism, in particular as it relates to the scope of the Necessary and Proper Clause in Article I of the Constitution. Furthermore, it is quite possible that a reversal would reveal that Chief Justice John Roberts and Justice Samuel Alito have less deferential views of states' rights than their predecessors, Chief Justice William Rehnquist and Justice Sandra Day O'Connor.

The Statute at Issue

Congress enacted Section 4248 in 2006, as part of the Adam Walsh Child Protection and Safety Act. Section 4248 specifically provides that the federal government may seek, in a civil proceeding, the commitment of any "sexually dangerous person" who is already in its custody – a description that ordinarily would cover any individual who has been convicted and imprisoned for violating a federal criminal law.
Under the Act, a "sexually dangerous person" is someone who "has engaged or attempted to engage in sexually violent conduct or child molestation" and who suffers from a severe mental illness that would cause the person to "have serious difficulty in refraining from sexually violent conduct or child molestation if released."

Significantly, Section 4248 authorizes the civil commitment of any "sexually dangerous" person in the custody of the federal Bureau of Prisons – even, upon the appropriate showing, permitting the civil commitment of such a person after he (or she) has completed serving the entire prison sentence flowing from his (or her) criminal conviction.

Section 4248 provides for a number of steps in the civil commitment process, including the requirement that the federal government must establish before the United States District Court by clear and convincing evidence that the person is sexually dangerous, in order to comply with the Constitution's Due Process clause.

The Federalism Issue the Statute Raises

Civil commitment of sex offenders is not novel; many, if not all, states have adopted statutes specifically authorizing civil commitment of sex offenders. The Supreme Court upheld the constitutionality of such procedures more than a decade ago in Kansas v. Hendricks and Kansas v. Crane. What is controversial about Section 4248, however, is that it authorizes the federal government to perform a task that generally has been performed only by the states.

Hence, the constitutional challenge before the Court is based upon federalism grounds – more precisely, whether Congress has the authority to enact a federal civil commitment law. That challenge has two parts. The first is based upon the Commerce Clause, set out in Article I of the Constitution, and the Supreme Court's decisions in United States v. Lopez and United States v. Morrison, in which the Court invalidated federal statutes for lacking a sufficient connection to interstate commerce. Section 4248 has been similarly challenged as an attempt by the federal government to regulate activity that is not sufficiently closely related to interstate commerce – and therefore is said to be unconstitutional on the ground that it exceeds the federal government's Commerce Clause power.

The second challenge is based upon the Necessary and Proper Clause, also set out in Article I. This challenge is based upon the understanding that the clause does not, alone, give Congress any power; rather, the clause can be invoked only, as the Fourth Circuit stated, "to effectuate powers specifically enumerated in the Constitution." Section 4248 is argued to be unconstitutional because the federal government's civil commitment authority, as set out in Section 4248, is not part of any of the Congressional powers that are specifically enumerated in the Constitution.

Comstock Before the Supreme Court: Highlights of the Oral Argument

In 2009, the Fourth Circuit agreed with the federalism arguments that have been made against Section 4248. Subsequently, two federal circuit courts of appeals – the Eighth and then the First – have rejected those arguments. This circuit split emerged while the federal government's petition for certiorari in Comstock was pending, and the Supreme Court granted the petition. The oral argument in January – at which Solicitor General Elena Kagan argued for the federal government – focused on the Necessary and Proper Clause.

During oral argument, the sharpest challenge to the federal government's claimed power came from Justice Antonin Scalia. He contended that the federal government's authority to detain a sex offender ended once that person's federal criminal sentence ended. Essentially, in Justice Scalia's view, the Necessary and Proper Clause may not reach any further than the length of the criminal sentence. It seems clear from the argument, then, that Justice Scalia is certain to vote to affirm the Fourth Circuit and invalidate the law. (Given his similar views on federalism, Justice Clarence Thomas is likely to vote with Justice Scalia, though – as has been the case since February 2006, according to Dahlia Lithwick of – Justice Thomas did not say a word during oral argument.)

Solicitor General Kagan's response to Justice Scalia's questions emphasized that Section 4248 was meant to apply in transitional situations – as when the sex offender is scheduled for release from federal prison, yet is still dangerous, and no state is prepared to initiate its own civil commitment proceeding against the offender. The authority for federal civil confinement was based upon, in her words, the federal government's "responsibility to ensure that release of the people it has in its custody is done responsibly."

The members of the Court's liberal bloc – Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer – seemed to have been strongly persuaded by this argument. Notably, after Solicitor General Kagan analogized the situation presented by a case involving Section 4248 to a situation where "a very contagious form of resistant tuberculosis had become prevalent in the prison system and states were not able to deal with that" and Congress gave the federal government "appropriate quarantining authority," Justice Stevens pressed that analogy vigorously during the respondent's oral argument. It seems virtually certain that these three Justices will vote to reverse the Fourth Circuit and sustain the law.

Justice Sonia Sotomayor, who replaced Justice David Souter, is generally expected to vote with the liberal bloc, although it has been noted that she may be more deferential to the government on criminal matters than the members of that bloc are, given her experience as a prosecutor. Justice Sotomayor asked a number of questions of both attorneys during the oral argument in Comstock; in my view, based on those questions, there is no reason to believe that she won't vote with the liberal bloc in Comstock.

What about Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy? Chief Justice Roberts asked a few questions, more of Solicitor General Kagan than her adversary, and I interpreted those questions as being skeptical of the federal government's claims. Still, the Chief Justice did not seem offended by the possibility that the Necessary and Proper Clause would authorize civil commitment after the end of the sex offender's criminal sentence. Justice Alito, on the other hand, seemed more receptive to the federal government's arguments on this point.

It is worth noting that prior to their appointments as judges to the federal courts of appeals, both Roberts and Alito served in the federal government – Roberts, in the Solicitor General's office; and Alito, in the U.S. Attorney's Office in New Jersey, the Criminal Division of the Justice Department, and the Solicitor General's office. Although Roberts and Alito certainly are ideologically conservative, they may be inclined to be pragmatic with respect to the need, in limited situations, for the exercise of federal power and authority. If they do vote to reverse the Fourth Circuit and sustain Section 4248 (and my guess is that at least Justice Alito will do so), then it would indicate their endorsement of a somewhat more flexible approach to federalism issues than that taken by their predecessors, Chief Justice Rehnquist and Justice O'Connor.

Finally, as to the occasionally surprising Justice Anthony Kennedy, he asked questions of both sides but seemed receptive to the tuberculosis analogy discussed above. I would expect him to vote with the liberal bloc, albeit perhaps on more narrow grounds. My final predicted tally, then, is that the Court will vote 6-3 or 7-2 – with the only question whether Chief Justice John Roberts will join Justices Scalia and Thomas in dissent – to reverse the Fourth Circuit and uphold Section 4248.

We'll know for certain soon enough.

Rodger Citron is an Associate Professor of Law at Touro Law Center on Long Island and a FindLaw guest columnist.

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