Predators and the Constitution

The feds usurp another area of state law.

Sex offenders are the least sympathetic of legal plaintiffs. Still, we were dismayed last week to see so many Supreme Court Justices during oral arguments apparently willing to let the federal government take over an area of law governing criminals that the Constitution grants to the states.

The question in U.S. v. Comstock is whether sex offenders who have already completed their federal criminal sentences may then see their incarceration extended through a process of "civil commitment" by the federal government. The law in question, the 2006 Adam Walsh Child Protection Act, allows the Attorney General to certify a person as a danger to the population and keep him in federal custody. The law tramples on the traditional power of states to protect public health and safety.

At oral argument, Solicitor General Elena Kagan argued that federal authority comes from its responsibility to maintain the criminal justice system, and that Congress may make all laws that are "necessary and proper" to execute its other Constitutionally vested powers. But civil commitment and criminal incarceration are different realms of enforcement: Those who have already served their legally prescribed sentences ought no longer be within reach of federal authorities.

The implications go well beyond sex offenders. To do as the Obama Administration asks would be to grant the federal government broad power in the criminal context. In the case of Graydon Comstock, who had been sentenced to three years in jail for purchasing child pornography, the Fourth Circuit Court of Appeals ruled that Congress lacked Constitutional authority to recommit him after he had done his federal time.

If the Supreme Court reverses the lower court's decision, it will sanction the notion that nearly any appealing idea may be justified as necessary and proper. In other countries, loose detention laws give wide latitude to authorities to lock up any number of people who "threaten the public safety," including political prisoners. Maybe next the feds could force everyone in America to buy health insurance.

The lone apparent critic was Justice Antonin Scalia, who pointed out to Ms. Kagan that the Necessary and Proper Clause was intended only to augment powers the federal government is explicitly given by the Constitution, and federal criminal authority ends when a criminal sentence does.

"The federal criminal proceeding is terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the federal government is charged with." He added, "There is no constitutional power on the part of the federal government to protect society from sexual predators." Twenty states already have their own civil commitment laws.

The Rehnquist Court made important strides in re-establishing state rights, and we shall see if the Roberts Court expands on that legacy. If Graydon Comstock's three year sentence for child pornography is inappropriately brief, the answer is not for the federal government to freelance constitutionally by imposing alternative incarceration. The answer is for voters to seek tougher criminal penalties for sex offenders.