Detention Slip - The Obama administration wants to hold terrorists. Did SCOTUS just give them a green light? By Dahlia Lithwick

jurisprudence
Detention Slip - The Obama administration wants to hold terrorists. Did SCOTUS just give them a green light? By Dahlia Lithwick
Posted Tuesday, May 18, 2010, at 6:29 PM ET
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Once, when it was fashionable to worry about Congress or the president asserting limitless authority to detain people, we would have been nervous about a Supreme Court decision expanding the authority to do so. But by now we have mainly slept our way though the Obama administration's talk of indefinite detention for Guantanamo detainees, generalized wobbliness on civilian trials for terrorists, embrace of the state secrets doctrine, and recent discussions about "modernizing" the Miranda warning, as well as a host of other Bush-lite war-on-terror powers. Is it possible that most of us haven't noticed that the Supreme Court has just handed Congress broad authority to detain people merely because they show signs of future dangerousness?

I am talking about the 7-2 decision in Monday's United States v. Comstock, a case that asked whether the federal government has the authority to continue to indefinitely detain a person who has served out his federal prison sentence, or who is deemed incompetent to stand trial, if the government has clear and convincing evidence that he is a "sexually dangerous" person. The high court had already granted state governments this power. But precisely because this is the traditional realm of the states, the 4th Circuit struck down the civil confinement federal statute, finding that it "granted the federal government unprecedented authority over civil commitment—an area long controlled by the states."

But yesterday, writing for a majority that crossed ideological lines, Stephen Breyer said that the government could indeed hold such people, under the Necessary and Proper Clause of the federal Constitution. The opinion (summarized by Adam B at Daily Kos here) listed five reasons supporting congressional authority to enact such legislation. Since Congress can do things like create prisons, ensure the safety of prisoners, and deliver mental-health care to prisoners, writes Breyer, the power to hold someone even after his sentence is served is reasonably related. He reasons that if the confinement of a prisoner infected with, say, a communicable disease is "necessary and proper," then "how could it not be similarly 'necessary and proper' to confine an individual whose mental illness threatens others to the same degree?" In a strong dissent, Justice Clarence Thomas said that "to be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. … But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

Sharp-eyed commentators have already observed that the decision in Comstock may go a long way toward shoring up Congress' constitutional power to enact sweeping health care reform. As David Savage noted yesterday in the Los Angeles Times, the "Supreme Court set a potential blueprint Monday for upholding the recently enacted healthcare law and its mandate that all Americans have insurance, saying Congress has a 'broad authority' to pass laws that are 'rationally related' to its constitutional aims." Professor Randy Barnett disagrees. But the more worrisome question is whether this very expansive view of federal crime-fighting authority would carry over to terrorism suspects whom the government may want to detain without trial.

The bloggers at the Volokh Conspiracy first sounded the alarm. Even before the ruling, they questioned Solicitor General Elena Kagan's broad federal power analysis in arguing this case and whether her arguments could have implications for national-security detentions. Orin Kerr wrote: "Indeed, her argument struck me as sort of shockingly broad: She argued that the Constitution gives the federal government the general power 'to run a responsible criminal justice system,' and that anything Congress plausibly thought a part of running a 'responsible criminal justice system' was within the scope of federal power." Eugene Volokh, looking closely at the decision Monday, concluded that "the brief resurrection of the enumerated powers doctrine, under which courts would strike down some Congressional actions as going beyond the constitutionally granted powers … may be largely over."

The result in Comstock also highlights the deep differences among the four traditionally conservative justices on questions of federal power and the differences between Roberts and Alito and the conservative justices they replaced. As my friend Rodger Citron suggested after Comstock was argued, "both Roberts and Alito served in the federal government and … they may be inclined to be pragmatic with respect to the need, in limited situations, for the exercise of federal power and authority." (Compare Roberts and Alito's view of federal authority to that of Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor).

The Economist connected the result in Comstock to the Bush/Obama arguments about indefinitely detaining terrorists for crimes they might commit in the future: The government's power post-Comstock is "similar to the power both the Bush and Obama administrations claim to detain 'enemy combatants' indefinitely because, although there is not enough evidence to convict them in a court of law, we know they will re-join al-Qaeda if we let them go." Marcy Wheeler went further:

I've long said that the most likely candidates for indefinite detention as alleged terrorists are those–like Abu Zubaydah and Mohammed al-Qahtani–whose torture has made them mentally unfit for trial. And in fact, one of the five respondents here was never convicted; like I presume Abu Zubaydah and al-Qahtani might well be, he was deemed mentally unfit to stand trial. So it would not take much to see the argument affirmed today used to justify indefinite detention of Gitmo detainees. Heck, Obama's probably already sent the draft legislation to Lindsey Graham for his approval. …

Wheeler then dryly predicts that "by the time such indefinite detentions were reviewed by SCOTUS, Elena Kagan would be one of the Justices asking the questions."

To be sure, there are big differences between the federal statute at issue in Comstock and a future statute requiring the possible future detention of foreign terrorists. The issue in Comstock was whether the federal government should be intruding on power reserved to the states. Presumably those issues don't come up when you're talking about the president's power to make war or fight back pirate attacks. Also, the sex offenders in Comstock have presumably had trials and served their time. But then, the Obama administration has already started to take the position that detainees may serve out their military sentences and still be confined.

It's always worth remembering, in other words, that last year's thought experiment can be tomorrow's constitutional doctrine. (I'm looking at you, embarrassing Second Amendment.) As Kenneth Anderson argued when the court first agreed to hear Comstock, "any case dealing with forms of administrative detention is worth watching closely to see if it has collateral implications for counterterrorism detentions." Most of the rationales endorsed by the court for holding the sex offenders in Comstock are equally compelling when applied to Khalid Sheikh Mohammed and his friends. Incurable and mentally unstable sex offenders are no more terrifying than incurable and mentally unstable jihadists.

Clarence Thomas thus became the voice of restraint when he wrote in his Comstock dissent that "[t]he fact that the federal government has the authority to imprison a person for the purpose of punishing him for a federal crime—sex-related or otherwise—does not provide the government with the additional power to exercise indefinite civil control over that person." Locking someone up forever may solve a whole host of real-life problems. That doesn't mean it shouldn't give you constitutional heartburn as well.

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Dahlia Lithwick is a Slate senior editor. Follow her on Twitter.

Article URL: http://www.slate.com/id/2254223/


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SCOTUS: Congress Can Lock Up Sexually Dangerous Persons by Adam B

SCOTUS: Congress Can Lock Up Sexually Dangerous Persons by Adam B
Share this on Twitter - SCOTUS: Congress Can Lock Up Sexually Dangerous Persons Mon May 17, 2010 at 09:22:03 AM PDT
What happens when a sex offender completes his criminal sentence but is still deemed too dangerous to be released into society?

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, which among other things gave the federal government the authority to seek civil commitment of "sexually dangerous person[s]" already held in its custody. It allows the government to seek to have individuals who are either completing federal prison sentences or incompetent to stand trial remain in federal custody indefinitely if they can prove through "clear and convincing evidence that this is a "sexually dangerous" person. If the federal government can make that showing, the person is committed to the custody of the Attorney General, who must then "make all reasonable efforts to cause" the state in which the individual resides or was tried "to assume . . . responsibility" for his custody and care. If not, the feds can keep him until either (a) he's no longer deemed dangerous (with or without ongoing treatment) or (b) the state agrees to take custody, with the confined person able to request a psychiatric and judicial review of his case every six months.

[What is a "sexually dangerous person"? Under the statute, it's one "who has engaged or attempted to engage in sexually violent conduct or child molestation," and "who is sexually dangerous to others," the latter further defined as someone who "suffers from a serious mental illness" such that he would "have serious difficulty in refraining from sexually violent conduct or child molestation if released."]

In a 7-2 decision today authored by Justice Breyer, the Supreme Court of the United States held that this statute was a proper exercise of Congressional power under the Necessary and Proper Clause. [The Court assumed for sake of argument that Due Process was satisfied.]

Why? The Court articulated five reasons: first, that the Necessary and Proper Clause grants Congress broad authority to enact federal legislation, or as Chief Justice Marshall wrote in McCullough v. Maryland (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate,which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

Second, that "the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades," going back to the 1855 establishment of St. Elizabeth’s Hospital in the District of Columbia "to provide treatment to 'the insane of the army and navy . . . and of the District of Columbia,'" as well as a subsequent 1857 bill providing for the confinement there of any person within D.C. "who had been charged with a crime and who was 'insane' or later became 'insane during the continuance of his or her sentence in the United States penitentiary.'"

Third, the Court determined that this was a reasonable extension of the existing civil-commitment system already in existence for mentally ill and sexually dangerous persons in federal custody. Fourth, it reasonably accommodated state interests, and fifth, this wasn't too attenuated from an enumerated power of Congress -- that even though the Constitution only explicitly allowed for the creation of federal crimes for counterfeiting, treason and ""Piracies and Felonies committed on the high Seas" or "against the Law of Nations," that nonetheless it still had the power to create federal crimes for any violation of federal law.

Justice Kennedy, concurring, wanted to put some brakes on this notion of Necessary and Proper powers, believing that federalism was a bit undervalued by the majority, making clear that this power should only be used when the states don't want to take responsibility for such persons. Justice Alito, too, though the majority went too far but concurred because of his belief that this statute "is a necessary and proper means of carrying into execution the enumerated powers that support the federal criminal statutes under which the affected prisoners were convicted" because "in a disturbing number of cases, no State was willing to assume the financial burden of providing for the civil commitment of federal prisoners who, if left at large after the completion of their sentences, would present a danger to any communities in which they chose to live or visit."

Justices Thomas and Scalia dissented on the grounds that no enumerated power gave Congress this responsibility, nor was this necessary and proper for carrying out an explicitly enumerated power:

To be sure, protecting society from violent sexual of-fenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it. New York v. United States, 505 U. S. 144, 157 (1992) ("‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people’" (quoting United States v. Butler, 297 U. S. 1, 63 (1936)).

Why is this case a big deal? Because in accepting a broadened scope for the Necessary and Proper Clause in empowering the federal government to address concerns multiple steps removed from the Article I enumerated powers, it allows an energetic Congress to address these issues of key public concern without forcing the weighty constitutional amendment process every time some new issue arises.

Incidentally, Solicitor General Kagan argued this case for the United States in oral argument, the transcript of which is here.

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