Supreme Court deals blow to federalism

Freedom New Mexico

Seven Supreme Court justices on Monday cut one of the few remaining strings tying the exercise of congressional power to its constitutional enumeration.

In a 7-2 decision in United States v. Comstock, the court upheld the Adam Walsh Child Protection and Safety Act of 2006, which empowers federal officials to order the indefinite civil commitment of “sexually dangerous” persons who have completed their federal prison sentences. The majority ruled that Congress had the authority under the Constitution’s Necessary and Proper Clause, which grants it the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.”

Like the Commerce Clause, the Necessary and Proper Clause over the years has been stretched thinner than a blob of Silly Putty on the Sunday comics, and produced similar distortions.

The Necessary and Proper Clause comes at the end of Article I, Section 8, and its key word is “foregoing.” That refers to the previously enumerated powers granted Congress. The list is long, but specific. Unfortunately, it often has been ignored by Congress and the courts, who are transfixed by the idea that anything lawmakers deem “necessary and proper” is fair game.

James Madison said the clause “only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause.” Well, Madison has been dead a long time, and such quaint sentiments have been buried with him.

The majority of justices in Comstock accepted the federal government’s argument that the 2006 law was “necessary and proper” to operating the federal prison system. That’s not an enumerated power, but is itself a “necessary and proper” execution of Congress’ constitutional authority to enforce federal criminal laws. That’s reasonable elasticity.

Comstock stretches it to the breaking point. Keeping people in jail beyond their sentences is not a function of maintaining a court system, nor does their release interfere with the execution of enumerated powers. This is legislating via six degrees of constitutional separation. And the court has provided room for a seventh or more.

Justice Samuel Alito reluctantly concurred with the majority, but expressed concern about the “ambiguity of the standard” the court applied to the Necessary and Proper Clause. Nevertheless, Alito believed that because it is in the public’s interest to detain sexual deviants, Congress is authorized to act.

In his dissent, Justice Clarence Thomas (joined by Justice Antonin Scalia) properly responds, “the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” He correctly points out that “the power to care for the mentally ill and … to protect the community from some mentally ill persons, are among the numerous powers that remain with the States.”

If sexual offenders are not to be trusted upon release from prison, then the solution is for states to impose lifelong sentences for those crimes. Comstock usurps that power from the states and federalizes a criminal punishment without appropriate constitutional authorization. That sets a precedent for Congress to further extend its already fearsome reach into extraconstitutional territory.