Las Monday the Supreme Court in United States v. Comstock, held that Congress has the power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution to enact 18 U.S.C. § 4248.

Section 4248 authorizes court-ordered civil commitment by the federal government of two categories of “sexually dangerous” persons: (1) “sexually dangerous” persons who are already in custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

Justice Thomas in dissent makes a strong case that this civil commitment statute exceeds Congress’ powers inasmuch as it does not carry into execution any enumerated power. Thomas agrees the government may pass criminal laws to prohibit conduct that interferes with enumerated powers, establish prisons for those who engage in that conduct, and set rules for the care and treatment of prisoners awaiting trial or serving a criminal sentence. He gives the example of the postal clause and how it is necessary and proper to pass laws to protect the mails and to house defendants in federal prisons when they steal mail.

However, he denies a general police power where the government can keep an inmate in custody long after the inmate’s sentence has expired on the grounds that the inmate is sexually dangerous and might commit further crimes.

This, according to Thomas, cannot be traced back to an enumerated power. He urges that the commitment issue should be left to the state jurisdiction in which the defendant will be released. The opinions are worth a read.

cross-posted from the Independent Institute

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