United States v. Comstock (2010)
United States v. Comstock (2010)
561 U.S. 126
Federal law (18 U. S. C. §4248) allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. Under the statute, the government must certify to a federal judge that a prisoner (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of ” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” When such a certification is filed, the statute automatically stays the individual’s release from prison. In this case, the government instituted civil-commitment proceedings against Comstock and four other prisoners. Each prisoner filed a motion to dismiss the civil-commitment proceeding on the ground that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause.
Opinion of the Court: Breyer, Roberts, Stevens, Ginsburg, Sotomayor.
Concurring in the judgment: Kennedy; Alito.
Dissenting opinion: Thomas, Scalia (in part).
JUSTICE BREYER delivered the opinion of the Court.
A federal civil-commitment statute authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. We have previously examined similar statutes enacted under state law to determine whether they violate the Due Process Clause. But here we ask whether the Federal Government has the authority under Article I of the Constitution to enact this federal civil-commitment program or whether its doing so falls beyond the reach of a government of enumerated powers. We conclude that the Constitution grants Congress the authority to enact §4248 as “necessary and proper for carrying into Execution” the powers “vested by” the “Constitution in the Government of the United States.”
II
We base this conclusion on five considerations, taken together.
First, the Necessary and Proper Clause grants Congress broad authority to enact federal legislation. Nearly 200 years ago, this Court stated that the Federal “Government is acknowledged by all to be one of enumerated powers,” McCulloch, which means that “every law enacted by Congress must be based on one or more of” those powers, United States v. Morrison (2000). But, at the same time, “a government, entrusted with such” powers “must also be entrusted with ample means for their execution.” McCulloch. Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.” Chief Justice Marshall emphasized that the word “necessary” does not mean “absolutely necessary.” In language that has come to define the scope of the Necessary and Proper Clause, he wrote: “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.”
We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States (2004). We have also recognized that the Constitution “addresse[s]” the “choice of means” “primarily. . . . . . . to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Burroughs v. United States (1934). Thus, the Constitution, which nowhere speaks explicitly about the creation of federal crimes beyond those related to “counterfeiting,” “treason,” or “Piracies and Felonies committed on the high Seas” or “against the Law of Nations,” Art. I, §8, cls. 6, 10; Art. III, §3, nonetheless grants Congress broad authority to create such crimes. And Congress routinely exercises its authority to enact criminal laws in furtherance of, for example, its enumerated powers to regulate interstate and foreign commerce, to enforce civil rights, to spend funds for the general welfare, to establish federal courts, to establish post offices, to regulate bankruptcy, to regulate naturalization, and so forth.
Similarly, Congress, in order to help ensure the enforcement of federal criminal laws enacted in furtherance of its enumerated powers, “can cause a prison to be erected at any place within the jurisdiction of the United States, and direct that all persons sentenced to imprisonment under the laws of the United States shall be confined there.” Ex parte Karstendick (1876). Moreover, Congress, having established a prison system, can enact laws that seek to ensure that system’s safe and responsible administration by, for example, requiring prisoners to receive medical care and educational training, and can also ensure the safety of the prisoners, prison workers and visitors, and those in surrounding communities by, for example, creating further criminal laws governing entry, exit, and smuggling, and by employing prison guards to ensure discipline and security. Neither Congress’ power to criminalize conduct, nor its power to imprison individuals who engage in that conduct, nor its power to enact laws governing prisons and prisoners, is explicitly mentioned in the Constitution. But Congress nonetheless possesses broad authority to do each of those things in the course of “carrying into Execution” the enumerated powers “vested by” the “Constitution in the Government of the United States.”
Second, 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. We recognize that even a longstanding history of related federal action does not demonstrate a statute’s constitutionality. A history of involvement can nonetheless be “helpful in reviewing the substance of a congressional statutory scheme,” Gonzales [v. Raich]; and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.
Here, Congress has long been involved in the delivery of mental health care to federal prisoners, and has long provided for their civil commitment. In 2006, Congress enacted the particular statute before us. It differs from earlier statutes in that it focuses directly upon persons who, due to a mental illness, are sexually dangerous. Notably, many of these individuals were likely already subject to civil commitment under §4246, which, since 1949, has authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous (whether sexually or otherwise). Aside from its specific focus on sexually dangerous persons, §4248 is similar to the provisions first enacted in 1949. In that respect, it is a modest addition to a longstanding federal statutory framework.
Third, Congress reasonably extended its longstanding civil-commitment system to cover mentally ill and sexually dangerous persons who are already in federal custody, even if doing so detains them beyond the termination of their criminal sentence. For one thing, the Federal Government is the custodian of its prisoners. As federal custodian, it has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose. If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others. And if confinement of such an individual is a “necessary and proper” thing to do, then how could it not be similarly “necessary and proper” to confine an individual whose mental illness threatens others to the same degree?
Moreover, §4248 is “reasonably adapted” to Congress’ power to act as a responsible federal custodian (a power that rests, in turn, upon federal criminal statutes that legitimately seek to implement constitutionally enumerated authority. Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct,” would pose an especially high danger to the public if released. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody, in part because the Federal Government itself severed their claim to “legal residence in any State” by incarcerating them in remote federal prisons. Here Congress’ desire to address the specific challenges identified above, taken together with its responsibilities as a federal custodian, supports the conclusion that §4248 satisfies “review for means-end rationality,” i.e., that it satisfies the Constitution’s insistence that a federal statute represent a rational means for implementing a constitutional grant of legislative authority.
Fourth, the statute properly accounts for state interests. Respondents and the dissent contend that §4248 violates the Tenth Amendment because it “invades the province of state sovereignty” in an area typically left to state control. But the Tenth Amendment’s text is clear: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The powers “delegated to the United States by the Constitution” include those specifically enumerated powers listed in Article I along with the implementation authority granted by the Necessary and Proper Clause. Virtually by definition, these powers are not powers that the Constitution “reserved to the States.” If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.”
Nor does this statute invade state sovereignty or otherwise improperly limit the scope of “powers that remain with the States.” To the contrary, it requires accommodation of state interests: The Attorney General must inform the State in which the federal prisoner “is domiciled or was tried” that he is detaining someone with respect to whom those States may wish to assert their authority, and he must encourage those States to assume custody of the individual. He must also immediately “release” that person “to the appropriate official of ” either State “if such State will assume responsibility.” And either State has the right, at any time, to assert its authority over the individual, which will prompt the individual’s immediate transfer to State custody.
Fifth, the links between §4248 and an enumerated Article I power are not too attenuated. Respondents argue that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step removed from a specifically enumerated power. But this argument is irreconcilable with our precedents. Take Greenwood v. United States (1956) as an example. In that case we upheld the (likely indefinite) civil commitment of a mentally incompetent federal defendant who was accused of robbing a United States Post Office. The underlying enumerated Article I power was the power to “Establish Post Offices and Post Roads.” But, as Chief Justice Marshall recognized in McCulloch, “the power ‘to establish post offices and post roads’ . . . is executed by the single act of making the establishment . . . . [F]rom this has been inferred the power and duty of carrying the mail along the post road, from one post office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post office, or rob the mail.” And, as we have explained, from the implied power to punish we have further inferred both the power to imprison and the federal civil-commitment power.
Our necessary and proper jurisprudence contains multiple examples of similar reasoning. Nor need we fear that our holding today confers on Congress a general “police power, which the Founders denied the National Government and reposed in the States.” As the Solicitor General repeatedly confirmed at oral argument, §4248 is narrow in scope. It has been applied to only a small fraction of federal prisoners. Indeed, the Solicitor General argues that “the Federal Government would not have the power to commit a person who has been released from prison and whose period of supervised release is also completed.” Far from a “general police power,” §4248 is a reasonably adapted and narrowly tailored means of pursuing the Government’s legitimate interest in the responsible administration of its prison system.
To be sure, as we have previously acknowledged, “the Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role.” As Chief Justice Marshall observed nearly 200 years ago, the Necessary and Proper Clause is part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”
The judgment of the Court of Appeals for the Fourth Circuit with respect to Congress’ power to enact this statute is reversed, and the case is remanded for further proceedings consistent with this opinion.
JUSTICE ALITO, concurring in the judgment.
I am concerned about the breadth of the Court’s language, but I am persuaded, on narrow grounds, that it was “necessary and proper” for Congress to enact the statute at issue in this case in order to “carr[y] into Execution” powers specifically conferred on Congress by the Constitution.
Section 4248 was enacted to protect the public from federal prisoners who suffer from “a serious mental illness, abnormality, or disorder” and who, if released, would have “serious difficulty in refraining from sexually violent conduct or child molestation.” Under this law, if neither the State of a prisoner’s domicile nor the State in which the prisoner was tried will assume the responsibility for the prisoner’s “custody, care, and treatment,” the Federal Government is authorized to undertake that responsibility. The statute recognizes that, in many cases, no State will assume the heavy financial burden of civilly committing a dangerous federal prisoner who, as a result of lengthy federal incarceration, no longer has any substantial ties to any State.
I entirely agree with the dissent that “[t]he Necessary and Proper Clause empowers Congress to enact only those laws that ‘carr[y] into Execution’ one or more of the federal powers enumerated in the Constitution,” but §4248 satisfies that requirement because it 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. The Necessary and Proper Clause provides the constitutional authority for most federal criminal statutes. In other words, most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system.
The only additional question presented here is whether, in order to carry into execution the enumerated powers on which the federal criminal laws rest, it is also necessary and proper for Congress to protect the public from dangers created by the federal criminal justice and prison systems. In my view, the answer to that question is “yes.” Just as it is necessary and proper for Congress to provide for the apprehension of escaped federal prisoners, it is necessary and proper for Congress to provide for the civil commitment of dangerous federal prisoners who would otherwise escape civil commitment as a result of federal imprisonment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins in all but Part III-A-1-b, dissenting.
The Court holds today that Congress has power under the Necessary and Proper Clause to enact a law authorizing the Federal Government to civilly commit “sexually dangerous persons” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. I disagree. The Necessary and Proper Clause empowers Congress to enact only those laws that “carr[y] into Execution” one or more of the federal powers enumerated in the Constitution. Because §4248 “Execut[es]” no enumerated power, I must respectfully dissent.
Congress has no power to act unless the Constitution authorizes it to do so. The Constitution plainly sets forth the “few and defined” powers that Congress may exercise. Article I “vest[s]” in Congress “all legislative Powers herein granted,” and carefully enumerates those powers in §8. The Necessary and Proper Clause, authorizes Congress “[t]o 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.” Federal legislation is a valid exercise of Congress’ authority under the Clause if it satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the Constitution”—that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.
McCulloch accords Congress a certain amount of discretion in assessing means-end fit under this second inquiry. However, unless the end itself is “legitimate,” the fit between means and end is irrelevant. This limitation was of utmost importance to the Framers. During the State ratification debates, Anti-Federalists expressed concern that the Necessary and Proper Clause would give Congress virtually unlimited power. Federalist supporters of the Constitution swiftly refuted that charge, explaining that the Clause did not grant Congress any free-standing authority, but instead made explicit what was already implicit in the grant of each enumerated power. McCulloch firmly established this understanding in our constitutional jurisprudence. Since then, our precedents uniformly have maintained that the Necessary and Proper Clause is not an independent fount of congressional authority, but rather “a caveat that Congress possesses all the means necessary to carry out the specifically granted ‘foregoing’ powers of §8 ‘and all other Powers vested by this Constitution.’”
Section 4248 establishes a federal civil-commitment regime for certain persons in the custody of the Federal Bureau of Prisons (BOP). No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power. Accordingly, §4248 can be a valid exercise of congressional authority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actually enumerated in the Constitution.
Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, it is clear, on the face of the Act and in the Government’s arguments urging its constitutionality, that §4248 is aimed at protecting society from acts of sexual violence, not toward “carrying into Execution” any enumerated power or powers of the Federal Government.
To be sure, protecting society from violent sexual offenders is certainly an important end. But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it. In my view, this should decide the question. Congress may act under that Clause only when its legislation “carr[ies] into Execution” one of the Federal Government’s enumerated powers. Section 4248 does not execute any enumerated power. Section 4248 is therefore unconstitutional.
A, 1, b
Instead of asking the simple question of what enumerated power §4248 “carr[ies] into Execution” at McCulloch’s first step, the Court surveys other laws Congress has enacted and concludes that, because §4248 is related to those laws, the “links” between §4248 and an enumerated power are not “too attenuated”; hence, §4248 is a valid exercise of Congress’ Necessary and Proper Clause authority. This unnecessarily confuses the analysis and, if followed to its logical extreme, would result in an unwarranted expansion of federal power.
The Court observes that Congress has the undisputed authority to “criminalize conduct” that interferes with enumerated powers; to “imprison individuals who engage in that conduct”; to “enact laws governing [those] prisons”; and to serve as a “custodian of its prisoners.” From this, the Court assumes that §4248 must also be a valid exercise of congressional power because it is “‘reasonably adapted’” to those exercises of Congress’ incidental—and thus unenumerated—authorities. But that is not the question. The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority; the Clause plainly requires a showing that every federal statute “carr[ies] into Execution” one or more of the Federal Government’s enumerated powers.
B, 1
I cannot agree with Justice Alito that §4248 is a necessary and proper incident of Congress’ power “to protect the public from dangers created by the federal criminal justice and prison systems.” A federal criminal defendant’s “sexually dangerous” propensities are not “created by” the fact of his incarceration or his relationship with the federal prison system. The 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.
The Court submits that §4248 does not upset the balance of federalism or invade the States’ reserved powers because it “requires accommodation of state interests” by instructing the Attorney General to release a committed person to the State in which he was domiciled or tried if that State wishes to “‘assume responsibility’” for him. This right of first refusal is mere window dressing. For once it is determined that Congress has the authority to provide for the civil detention of sexually dangerous persons, Congress “is acting within the powers granted it under the Constitution,” and “may impose its will on the States.” Section 4248’s right of first refusal is thus not a matter of constitutional necessity, but an act of legislative grace.
29 States appear as amici and argue that §4248 is constitutional. They tell us that they do not object to Congress retaining custody of “sexually dangerous persons” after their criminal sentences expire because the cost of detaining such persons is “expensive”—approximately $64,000 per year—and these States would rather the Federal Government bear this expense. Congress’ power, however, is fixed by the Constitution; it does not expand merely to suit the States’ policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds. Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States.
In [today’s ruling], the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grant of authority as a “pretext for the accomplishment of objects not intrusted to the government.” McCulloch.