Reposting Randy. Professor Barnett does not allow comments on Volokh, so comment here!

As loyal followers of the Volokh Conspiracy know, Professor Barnett does not enable comments, as he explained in this post. While disabling comments eliminates the supply, it surely does not eliminate the demand. The market always finds a way to equilibrium.

Thus, whenever Professor Barnett adds a post to Volokh, I will repost it here, and enable comments. I shall call it, “Reposting Randy.”

The first installment of  “Reposting Randy” is Professor Barnett’s post  Limits on the Necessary & Proper Clause?

On January 12th, the Supreme Court will hear argument on a case that promises to find a limit to the power of Congress “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, or in any department or officer thereof.” In this blog post, Cato’s Ilya Shapiro explains:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato and I have filed this amicus brief explaining that the the power to make laws that “shall be necessary and proper” must be linked to an emumerated power, which this law is not. As Ilya puts it:

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.This seems elementary given the text (see above), but it would be a small step towards Restoring the Lost Constitution (now just $13.93!) for the Supreme Court to so rule. The case also provides an opportunity for the Court to inch away from its decision in Raich.

Opine away!

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11 Responses to “Reposting Randy. Professor Barnett does not allow comments on Volokh, so comment here!”

  1. troll_dc2 Says:

    Why does the Court have to discuss the necessary and proper clause when it can simply say that Congress has no power to authorize the civil commitment of anyone? It can apply the Thirteenth Amendment to strike down the offending part of the Adam Walsh law and avoid the commerce issue. (I grant that it would have to word its decision carefully so as not to rule inadvertently on the question of whether the President has the authority under the war power to keep certain people who presently are in Guantanamo in prision indefinitely even if they are not brought to trial.) I submit that a broad Thirteenth Amendment ruling would obviate the need to rule on other constitutional issues.

    Could Congress authorize indefinite detention pursuant to its criminal-law powers? Yes. But there would be a trial under a statute that would spell out standards, and the punishment would be determined by a judge and not by the Attorney General.

    • Josh Blackman Says:

      I hadn’t thought of the 13th amendment in this issue. I’m not sure what the case law says about civil commitment and “involuntary servitude” under the 13th.

      But, what exactly are Congress’s “criminal-law powers”? They are not to be found in the Constitution.

  2. troll_dc2 Says:

    They are based on the idea that elements of the crime actually or presumably involve interstate commerce.

    • Josh Blackman Says:

      That is the key question of Comstock. Whether detaining someone actually involves interstate commerce. Barnett thinks no. Raich would say yes.

  3. troll_dc2 Says:

    My approach would avoid having to answer this question. The only problem with it, as I mentioned above, concerns the 8implications for Guantanamo.

    • Josh Blackman Says:

      In light of the question presented, it is very unlikely they would touch the 13th amendment, and even more unlikely that they would consider anything about Guantamo, especially with Kiyemba v. Obama on the docket.

      It irks me though that in order to defend the doctrine of enumerated powers, I need to get behind pedophiles and potheads.

  4. troll_dc2 Says:

    Does that make you want to reconsider your support for the doctrine of enumerated powers?

    • Josh Blackman Says:

      Nope. My philosophy often helps people I do not particularly like, mainly protections for criminals and prisoners.

  5. troll_dc2 Says:

    Can Comstock be affirmed without calling Raich into question? Yes. Raich interpreted the Commerce Clause, but that clause would seem to have no application here, I would think.

    • Josh Blackman Says:

      Absolutely not. This case cannot exist without the Commerce Clause, and the Supreme Court will need to at least mention Raich to uphold this law.

  6. troll_dc2 Says:

    We could argue some more, but maybe it would be better to see what the Supremes decide to do. My suspicion is that they will try to avoid the ideological issues as much as possible.


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