The U.S. Supreme Court today issued a decision that may well signal how it will rule on challenges to the recently enacted health care law.
The case is United States v. Comstock (May 17, 2010, 08-1224). At first blush it doesn't seem like a biggie, involving as it does the question whether the federal government may order the civil commitment of a mentally ill, sexually dangerous federal prisoner.
The Court, speaking through Justice Breyer, Justices Stevens, Ginsburg, Sotomayor and C.J. Roberts concurring, examined similar cases it had decided in the past, concluding this one presented a new question: "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.'" The majority concluded that the Constitution does grant the government such power under the "necessary and proper" clause. (Art. I, sec. 8, cl. 8.)
The majority begins by stating that "the Necessary and Proper Clause grants Congress broad authority to enact federal legislation." Quoting McCulloch v. Maryland, 4 Wheat. 316, 408 (1819), "a government, entrusted with such" powers "must also be entrusted with ample means for their execution." It concludes that the Clause permits laws that are "'convenient, or useful' or 'conducive' to the authority's 'beneficial exercise.'" (Comstock, quoting from McCulloch at 413, 418.) It quotes Marshall, McCullock's author, saying,
"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." McCulloch, supra, at 421.
In a sentence that may signal the high court's attitude to health care reform, the Court notes as a fact that,
"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."
The majority points out that the power to criminalize conduct, imprison individuals who engage in the conduct, nor establish federal prisons, is mentioned in the Constitution, but nonetheless the Congress possesses these powers under the Necessary and Proper Clause.
The majority then tackles objections (in Thomas' dissent) that the statute violates the Tenth Amendment. It concludes that although the States have traditionally exercised broad powers over the confinement of the mentally ill, the powers delegated to the United States under the Tenth Amendment include those specifically enumerated in Article I and the implementation authority given by the Necessary and Proper Clause.
The majority acknowledges (as the Court noted before) that 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." (Quoting New York, 505 U.S. at 157.
The majority notes that "The Framers demonstrated considerable foresight in drafting a Constitution capable of such resilience through time. 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.'" McCulloch, 4 Wheat., at 415 (emphasis deleted).
Justice Kennedy concurs in the judgment, writing separately to emphasize the "discrete and narrow exercise of authority over a small class of persons already subject to the federal power." He expresses reservations over the Court's broad reading of the Tenth Amendment.
Justice Alito also expresses concern over the breadth of the majority's language, but concurs in the judgment. He agrees with the dissent's narrow reading of the Necessary and Proper Clause, but finds the statute to be necessary and proper.
Thomas dissents, joined for the most part, by Scalia:
"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. Art. I, sec. 8, cl. 18. Because §4248 'Execut[es]' no enumerated power, I must respectfully dissent."
Ironically, Thomas quotes the same paragraph as the Court, Justice Marshall's "Let the end be legitimate ..." but interprets it differently.
Because no enumerated power in Article I sec. 8 nor any other provision in the Constitution "expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons" it "does not vest in Congress the authority to protect society from every bad act that might befall it."
The statute, in Thomas' opinion, "runs afoul of our settled understanding of Congress's power under the Necessary and Proper Clause."
Thomas accuses the Court of enacting a "novel five-factor test" to determine what is necessary and proper. Scalia does not join in this part of the opinion. Thomas ends by saying that 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, supra, at 423."
