Friday, May 20, 2011

Judge Motz, Comstock, and the Necessary and Proper Clause

As we mentioned last week, Judge Motz wrote the Fourth Circuit’s opinion in Comstock v. United States, a case that has played and will continue to play a large role in this litigation. Because both sides of the ACA litigation have cited to Comstock, we think this is an excellent opportunity to discuss the decision and its greater implications. The following summarizes the statute at issue in Comstock, Judge Motz’s opinion, and the Supreme Court’s decision reversing Judge Motz.

In 2006, Congress passed the Adam Walsh Child Protection Safety Act (Act). Pub.L. No. 109–248, § 302, 120 Stat. 587. The Act was described by one Senate sponsor as “the most comprehensive child crimes and protection bill in our Nation’s history.” 125 Cong. Rec. S8012 (daily ed. July 20, 2006) (statement of Sen. Hatch). Most of its provisions proved to be uncontroversial, but § 4248 raised a serious question as to whether Congress had exceeded its enumerated powers.

Section 4248 allows the federal government to civilly commit, in a federal facility, any “sexually dangerous” person in the custody of the Bureau of Prisons. 18 U.S.C. § 4248(a), (d) (2006). These civil commitments may take place during, near the end of, or after the completion of a federal prison sentence. § 4248(a) and (d). To initiate a civil commitment, the Attorney General is required to certify that an individual who is in the custody of the Bureau of Prisons is “sexually dangerous,” and to file that certification with the district court in the jurisdiction that the “sexually dangerous” individual is being held. § 4248(a). Under § 4248, an individual is “sexually dangerous” if he or she has engaged in, or attempted to engage in, sexually violent conduct or child molestation, who is dangerous to others because he or she is afflicted by a serious mental illness, abnormality or defect, such that he or she would, if released, have “serious difficulty in refraining from sexually violent conduct or child molestation.” 18 U.S.C. § 4247(a)(5)–(6) (2006). Thus, to certify that an individual is “sexually dangerous,” the government must make two showings. 18 U.S.C. § 4248(d). First, the government must show that the individual has engaged in or attempted to engage in acts of sexual violence or child molestation. 18 U.S.C. § 4247(a)(5). Second, the government must show that individual suffers from a serious mental illness, abnormality, or defect, the effect of which makes it seriously difficult for the individual to refrain from sexually violent conduct or child molestation if released from the Bureau of Prison’s custody. 18 U.S.C. § 4247(a)(6).

Following the initiation of a certification proceeding, the statute automatically stays the release of an individual whom the government seeks to certify as “sexually dangerous,” pending the completion of the procedures set out in § 4247. 18 U.S.C. § 4248(c). These procedures, among other things, call for the district court to order a psychiatric or psychological evaluation, and a mandatory district court hearing “to determine whether the person is a sexually dangerous person.” During the hearing, the Act mandates that the individual against whom the government seeks certification be represented by counsel and be given “an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.” 18 U.S.C. § 4248(a)–(d). Finally, the government must prove that the individual is a sexually dangerous person by clear and convincing evidence. 18 U.S.C. § 4248(d).

If the government satisfies its burden, the district court must commit the individual to the custody of the Attorney General, and the Attorney General is required to “make all reasonable efforts” to “release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment.” Id. If the Attorney General is unable to release the individual to “such State,” § 4248 requires the Attorney General to place the individual in a “suitable treatment facility” until (a) the State is willing to assume responsibility, or (b) the individual’s condition is such that he or she is no longer “sexually dangerous.” Id.

Once the individual is committed to a federal facility, the facility’s director is required to prepare annual reports on the individual’s mental state, to make recommendations concerning his or her commitment, and to submit those reports to the district court that ordered the commitment. 18 U.S.C. § 4247(e)(1)(B). If the facility’s director concludes that the individual is no longer “sexually dangerous,” then the director must file his or her findings with the district court that ordered the commitment. 18 U.S.C. § 4248(e). At that time, the district court must either order that the individual be released or conduct a hearing to determine if, when, and under what conditions the individual should be released. Id.

The committed individual’s counsel or legal guardian may, at any time during his or her commitment, file with the court that ordered his or her commitment a motion to determine whether he or she should be released from the federal facility, provided that no court has ordered his or her commitment within the previous 180 days. 18 U.S.C. §4247(h). Nothing in § 4248 prevents a committed individual from establishing the illegality of his or detention through a petition for writ of habeas corpus. 18 U.S.C. § 4247(h).

Writing for a unanimous three-judge panel of the Fourth Circuit, Judge Motz began by discussing how States, unlike the federal government, have traditionally controlled the civil commitment of the mentally ill through the exercise of their general police and parens patriae powers. Comstock, 551 F.3d at 278 (citing United States v. Sahhar, 56 F.3d 1026, 1029–30 (9th Cir. 1995)). Because the federal government does not have a general police or parens patriae power, and because our Constitution requires that an enumerated power support every statute Congress enacts, Judge Motz first addressed whether the Commerce Clause gave Congress the authority to enact § 4248. Comstock, 551 F.3d at 278 (citing United States v. Morrison, 529 U.S. 598, 607 (2000)). After surveying the landscape of the Court’s Commerce Clause jurisprudence, she concluded that “Supreme Court precedent thus compels the conclusion that §4248 does not constitute a valid exercise by Congress of its Commerce Clause power.” Comstock, 551 F.3d at 280. According to Judge Motz, holding that §4248 is within the commerce power would “encroach on the police and parens patriae powers reserved to the sovereign states, conflating ‘what is truly national and what is truly local.’” Id. (citing Morrison, 529 F.3d at 617–18).

Once she decided that § 4248 found no support in the commerce power, Judge Motz proceeded to analyze whether the statute’s constitutional justification in the Necessary and Proper Clause. She broke the government’s arguments into three separate contentions, and addressed them in turn. Comstock, 551 F.3d at 281. First, she addressed the government’s contention that, as a matter of its unique custodial relationship with individuals who are already in the custody of the Bureau of Prisons, § 4248 is a Necessary and Proper means of furthering the government’s ability to maintain a regime of federal criminal statutes. Id. This, she argued, was unpersuasive because, while the government does have a unique custodial relationship with its prisoners, that relationship must “necessarily cease” upon the completion of their prison terms. Id.

Second, Judge Motz turned to the government’s contention that § 4248 is a necessary and proper exercise of its power to prevent sex crimes. Id. at 282. Though she recognized that the government does have the power to regulate some sex crimes, it does not have the power to regulate all sex crimes, let alone “sexual dangerousness” generally. Id. Finally, she considered the government’s submission that § 4248 is a necessary and proper exercise of its “power to prosecute” individuals who are in its custody and charged with criminal offenses. Id. at 283. Judge Motz dismissed this contention because the terms of § 4248 do not limit civil commitments to those individuals who have been charged but not tried for their crimes, and because no federal prosecution was frustrated here. Id. at 284.

Judge Motz’s opinion concluded by holding that the respondents succeeded in making a “plain showing” that Congress exceeded its Article I authority in enacting § 4248. Id. Soon after, the Supreme Court granted certiorari to decide § 4248’s fate.

In a ruling that some argue transcends McCullough v. Maryland as the Supreme Court’s premier articulation of its Necessary and Proper Clause jurisprudence, the Court held 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.’” United States v. Comstock, 130 S.Ct. 1949, 1954 (2010). Writing for the Majority, Justice Breyer wrote that the Court’s holding was based on the following.

First, the Court wrote, “the Necessary and Proper Clause grants Congress broad authority to enact federal legislation.” Comstock, 130 S.Ct. at 1956. The Court wrote that “the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” Id. (citing McCulloch v. Maryland, 4 Wheat. 316 (1819). Thus, when “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute,” the Court looks to “see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Comstock, 130 S.Ct. at 1956 (citing Sabri v. United States, 541 U.S. 600, 605 (2004)). The Court proceeded to explain why § 4248 satisfies this standard.

The Court explained that in the instant case, the “relevant inquiry” is “whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power’ or under other powers that the Constitution grants Congress the authority to implement.” Comstock, 130 S.Ct. at 1957 (citing Gonzales v. Raich, 545 U.S. 1, 37 (2005) (Scalia, J. concurring in judgment)). Therefore, “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,’ . . . nonetheless grants Congress broad authority to create such crimes.” Comstock, 130 S.Ct. at 1957 (internal cites omitted). Likewise, “Congress, in order to help assure 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.” Comstock, 130 S.Ct. at 1957 (citing Ex Parte Karstendick, 93 U.S. 396, 400 (1876)). And once this prison system is established, Congress “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.” Comstock, 130 S.Ct. at 1958 (internal cites omitted).

Again, though none of this is explicitly mentioned in the Constitution, “Congress nonetheless possesses broad authority to do” those things “in the course of ‘carrying into execution’ the enumerated powers ‘vested by’ the ‘Constitution in the Government of the United States,’ authority granted by the Necessary and Proper Clause.” Comstock, 130 S.Ct. at 1958.

Second, the Court wrote that § 4248 “constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.” Id. Though this does not necessarily “demonstrate a statute’s constitutionality,” the Court wrote that “[a] history of involvement . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme.’” Id. (citing Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 678 (1970) and Gonzales, 545 U.S. at 21 respectively). This is especially so with regard to “the reasonableness of the relation between the new statute and preexisting federal interests.” Comstock, 130 S.Ct. at 1958.

The Court wrote that, in this instance, “Congress has long been involved in the delivery of mental health care to federal prisoners, and has long provided for their civil commitment.” Id. It described the various federal attempts over the years to cope with the problem posed by inmates who either suffered from mental illness when they were charged with a federal crime or developed a mental illness while in federal custody. See id. at 1959–60 This led the Court to conclude that “over the span of three decades, Congress created a national, federal civil-commitment program under which any person who was either charged with or convicted of any federal offense in any federal court would be confined in a federal mental institution.” Id. at 1959. And while these statutes “did not raise the question presented here, for they all provided that confinement in a federal hospital would end upon completion of the relevant ‘terms’ of federal ‘imprisonment’ as set forth in the underlying criminal sentence or statute,” that proviso was “eliminated” in the 1940s. Id. (internal cites omitted).

The Court discussed how, in 1945, “the Judicial Conference of the United States proposed legislative reforms of the federal civil commitment system,” in order to address, “among other things, the ‘serious problem faced by the Bureau of Prisons, namely, what to do with insane criminals upon the expiration of their terms of confinement, where it would be dangerous to turn them loose upon society and where no state will assume responsibility for their custody.’” Id. (citing Judicial Conference, Report of Committee to Study Treatment Accorded by Federal Courts to Insane Persons Charged with Crime 11 (1945) (Committee Report)). Based on its findings, the Judicial Conference “recommended that Congress enact ‘some provision of law authorizing the continued confinement of such persons after their sentences expired.’” Id. This then led Congress to make modifications to the law, which called for “civil commitment of individuals who are, or who become, mentally incompetent at any time after their arrest and before the expiration of their federal sentence.” Comstock, 130 S.Ct. at 1960 (citing 18 U.S.C. §§ 4241, 4244, 4247–48.

The modifications also provided certain procedural safeguards. Id. (citing 18 U.S.C. §§ 4242, 4246, 4247). The statute specified that if the Director of the Bureau of Prisons certified that a prisoner whose sentence was about to end was mentally ill or incompetent, and “if released, he will probably endanger the safety of the officers, the property, or other interests of the United States,” then, provided that “suitable arrangements for the custody and care of the prisoner are not otherwise available,” the Director may refer the inmate to the “court for the district in which the prisoner is confined,” and, upon a hearing, that court “may commit the prisoner to the custody of the Attorney General or his authorized representative.” Id. (citing §4247). The Comstock Court noted that “[t]he precondition that the mentally ill individual’s release would ‘probably endanger the safety of the officers, the property, or other interests of the United States’ was uniformly interpreted by the Judiciary to mean that his ‘release would endanger the safety of persons, property or the public interest in general—not merely the interests peculiar to the United States as such.’” Comstock, 130 U.S. at 1960 (citing United States v. Curry, 410 F.2d 1372, 1374 (4th Cir. 1969)). This judicial interpretation would later become the statutory norm when Congress modified the statute in 1984. See Comstock at 1960. Otherwise, Congress’s modifications left the basic aforementioned statutory scheme in place. See id.

The Court then examined § 4248, writing that it differed from Congress’s previous attempts in that it “focuses directly upon persons who, due to a mental illness, are sexually dangerous.” Id. at 1961. “Notably,” the Court wrote, “many of these individuals were likely already subject to civil confinement under § 4246, which, since 1949, has authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous (sexual or otherwise).” Id. Thus, because “[a]side from its specific focus on sexually dangerous persons,” § 4248 so closely resembles earlier statutes, “it is a modest addition to a longstanding federal statutory framework, which has been in place since 1855.” Id. (internal cites omitted).

Third, the Court wrote that “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.” Comstock, 130 S.Ct. at 1961. In support, the Court argued that “the Federal Government is the custodian of its prisoners,” and as such, “it has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose.” Id. (citing cf. Youngberg v. Romeo, 457 U.S. 307, 320 (1982)). The Court reasoned that:

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 (even if not threatening an interstate epidemic, cf. Art. I, § 8, cl. 3). Comstock, 130 S.Ct. at 1961.

Thus, “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?” Id.

Also, the Court wrote, § 4248 “is ‘reasonably adapted’ to Congress power to act as a reasonable federal custodian,” and “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.” Id. at 1961 (internal cites omitted). A “reasonable number” of these inmates “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.” Id. With this, the Court concluded 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.” Id. at 1962 (citing Sabri, 541 U.S. at 605)).

Fourth, the Court wrote that “the statute properly accounts for state interests.” Comstock, 130 S.Ct. at 1962. After laying out the fundamentals of the Court’s Tenth Amendment jurisprudence, the Court wrote that § 4248 “requires accommodation of state interests.” See id. at 1962. It compared the challenge to § 4248 to that of its predecessor in Greenwood v. United States, 350 U.S. 366 (1956), and noted that the predecessor statute “authorized federal custody so long as ‘suitable arrangements’ were ‘not otherwise available’ in a State or otherwise.” Id. Thus, the Court concluded that “if the statute at issue in Greenwood did not invade state interests, then, a fortiori, neither does § 4248.” Id. at 1963.

Finally, the Court wrote that “the links between §4248 and an enumerated Article I power are not too attenuated,” and that the statutory provision is sufficiently narrow in its scope. Id. Relying again upon Greenwood, the Court wrote that “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.” Id. (internal cites omitted). There, “The underlying enumerated Article I power was the power to ‘Establish Post Offices and Post Roads.’” Id. (citing Art. I, § 8, cl. 7). The Court cited McCullough v. Maryland to explain that:

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. McCullough, 4 Wheat. at 417.

From this, the Court wrote, “we have further inferred both the power to imprison, . . . and, in Greenwood, the federal civil-commitment power.” Comstock, 130 S.Ct. at 1963.

The Court proceeded to provide other examples of “similar reasoning” found in its Necessary and Proper Clause jurisprudence. Id. The Court wrote that, “in Sabri, we observed that ‘Congress has authority under the Spending Clause to appropriate federal moneys’ and that it therefore ‘has corresponding authority under the Necessary and Proper Clause to see to it that taxpayer dollars’ are not ‘siphoned off’ by ‘corrupt public officers.’” Id. (citing Sabri, 541 U.S. at 605). It then noted that the Sabri Court “further held that, in aid of that implied power to criminalize graft of ‘tax payer dollars,’ Congress has the additional prophylactic power to criminalize bribes or kickbacks even when the stolen funds have not been ‘traceably skimmed from specific federal payments.’” Id.

The Comstock Court recognized that neither it “nor the dissent can point to a single, specific enumerated power ‘that justifies a criminal defendant’s arrest or conviction.’” Comstock, 130 S.Ct. at 1964. It wrote that “in all cases because Congress relies on different enumerated powers (often, but not exclusively, its Commerce Clause Power) to enacts its various federal criminal statutes,” explaining that “every such statute must itself be legitimately predicated on an enumerated power, and “the same enumerated power that justifies the creation of a federal criminal statute, and that justifies the additional implied federal powers that the dissent considers legitimate, justifies civil commitment under § 4248 as well.” Id. (internal cites omitted). Therefore, the Court held, “we must reject the respondents’ argument that the Necessary and Proper Clause permits not more than a single step between an enumerated power and an Act of Congress.” Comstock, 130 S.Ct. at 1964.

The Court concluded with a discussion of the arguments concerning the threat of a federal general police power. See id. It noted that, “As the Solicitor General repeatedly confirmed at oral argument, § 4248 is narrow in scope,” and “has been applied to only a small fraction of federal prisoners.” Id. (internal cites omitted). Because the statute would not empower the federal government to civilly commit a former federal prisoner whose sentence had expired along with his period of supervised release, the Court wrote that “far from a ‘general police power,’ § 4248 is a reasonably adapted and narrowly tailored means of pursuing the Government’s legitimate interest as a federal custodian in the responsible administration of its prison system.” Id. at 1965.

In sum, the Court based its finding of constitutionality on (1) the “breadth of the Necessary and Proper Clause,” (2) the federal government’s “long history of [] involvement in this arena,” (3) the “sound reasons for § 4248’s enactment in light of the Government’s custodial interest in protecting the public from the dangers posed by those in its custody,” (4) § 4248’s “accommodation of state interests,” and (5) § 4248’s “narrow scope.” Id. The Court held that, “taken together,” these five factors:

[L]ead us to conclude that the statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. Id.

Some have interpreted Comstock as announcing a new test for applying the Necessary and Proper Clause, applicable in every case in which the clause is relevant. The United States, by contrast, understands Comstock as merely articulating how the clause defines Congress's power in a particular, arguably unique context. In all events, Judge Motz's view of the scope of the power, at least as it applied here, was rejected by all but two justices.