Cato’s Legal Arguments Worry U.S. Government

Last month, Cato (joined by Cato senior fellow Randy Barnett) filed a brief in United States v. Comstock, a case regarding the constitutionality of a law authorizing 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.

As I wrote in a previous blog post, “the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers.” Moreover, the government’s reliance on the Necessary and Proper Clause (Article I, Section 8), “is misplaced because that clause grants no independent power but merely ‘carries into execution’ the powers enumerated elsewhere in that section.” The commitment of prisoners after their terms end simply cannot fit into one of the enumerated powers.

While we of course hope that the Supreme Court pays attention to our brief, we know that Solicitor General Elana Kagan, at least, is concerned enough about our arguments to spend several pages of the government’s reply brief addressing them (see pages 5-9). 

For more on Comstock, see its case page on SCOTUSwiki, which now has all the briefs and will around the Jan. 12 argument date be populated with argument previews and reviews, as well as links to media coverage.