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

Williams Watkins
Latest posts by Williams Watkins (see all)

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.