Bench Memos

Commit to States’ Rights

Not many tea-party protesters have heard of Comstock v. United States. But the case, which the Supreme Court will hear on January 12, concerns the very limits on government power that they and others are so intent on restoring. At issue is the constitutionality of a 2006 federal law that allows the government to civilly commit a prisoner after the conclusion of his sentence because he suffers from a mental illness that makes him sexually dangerous.

Now, certainly, those who pose a danger to society because of their sexual proclivities should be committed. The real question, however, is whether the federal government should be running roughshod over the Constitution to civilly commit these individuals when states can adequately handle the problem. In Comstock, a federal court of appeals in Richmond ruled that Congress had no constitutional authority to enact the law. The Supreme Court should uphold this ruling, keeping Congress within its constitutional bounds.

The Constitution establishes that the federal government is one of limited powers. In other words, 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 constitutional authorization. Unfortunately, Congress has no such justification for this civil-commitment scheme.

One argument supporting the civil-commitment law relies on the federal government’s power to regulate interstate commerce. Although most people would not consider the confinement of a sexually dangerous person to be a regulation of commerce, the Supreme Court has allowed Congress to regulate any activity that it believes could substantially affect interstate commerce. For most of the 20th century, contrary to constitutional design, this sleight of hand provided Congress nearly unlimited power.

Recently, however, the Supreme Court has limited the power to regulate in this broad manner. In fact, a decade ago, the Court ruled that Congress could not make local, non-economic sexual violence the subject of interstate-commerce regulation. That precedent should knock out the commerce-power argument.

The government offers another potential justification. It argues that the law is merely an extension of its power to confine federal prisoners in the first place. The problem with this argument is that the commitment of a prisoner is not part of the imprisonment power once he has finished his sentence.

The Supreme Court has stated that the federal government’s power over an individual defendant must end at some point. If that point is not the conclusion of a prisoner’s legal sentence, then when is it? The very reason that the framers made the federal government’s power finite was to protect our fundamental liberties. Permitting Congress endless authority over any person entering its regulatory crosshairs is inconsistent with this structural protection.

The appeals court rightly held that this federal law impinged on the states’ regulatory sphere. Crime, punishment, and the civil confinement of the mentally ill are traditional areas of state regulation. It is certainly good for reelection prospects when Congressmen can go back home and announce that they sponsored a bill that “gets tough on crime.” And budget-strapped states are often eager to pass their responsibilities on to a Congress with seemingly unlimited spending abilities. But federal intervention adds a layer of additional regulation, requires more federal resources, and threatens individual liberties.

The federal government was created to accomplish legislative tasks that could not be handled by the states alone. At the height of federal power, this idea came to be seen as quaint or anachronistic. But we have recently experienced a severe recession, and the federal debt continues to spiral out of control. Given how poorly federal policy has performed in many areas, one wonders whether things might be better if Congress had less on its regulatory plate. The Court should take this opportunity to rebuke Congress’s gluttony by preventing it from meddling in areas that lawfully belong to the states.

– Ryan Lirette, a lawyer, is a research associate at the American Enterprise Institute.