Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

Today I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief.  As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.

At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.”  The problem is that, while states have what’s called a “police power” to handle this sort of thing – to appropriately deal with with threats to society from the dangerously insane and so forth – the federal government’s powers are limited to those enumerated in the Constitution.  And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.

The government, having abandoned its Commerce Clause argument – a big loser in the lower courts – relied at the Supreme Court on the Necessary and Proper Clause.  This clause says that Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution [the specific powers listed in Article I, section 8], and all other powers vested by this Constitution in the government of the United States.”

In other words, we have a government of delegated and enumerated, and therefore limited powers.  As Ryan Lirette put it in National Review Online last week,  ”Congress may not search every corner of our country looking for problems to vanquish.  Instead, Congress must be able to justify each law it passes with a specific congressional authorization.”

The solicitor general contends that civilly committing the sexually dangerous is “necessary and proper” to regulating the federal prison system – which itself is not an enumerated power but ancillary to enforcing federal criminal laws that Congress is appropriately empowered to make.  At the argument, solicitor general Kagan further justified the relevant provision as related to “responsibly” releasing federal prisoners.

I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner – for reasons I describe in my recent podcast – and Justice Scalia also wasn’t convinced.  Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions.  Instead, our system of government – our constitutional rule of law – provides for islands of government involvement in a sea of liberty.  It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces.  Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan Dubois.  Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power – and one would expect (the silent) Justice Thomas to be in that category as well.  Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely – including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power – so she could go either way.  Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active – seeming to question both sides equally – so it’s hard to predict how the Court will ultimately rule.