Alaska News

Necessary and Proper Clause taken to extremes

A U.S. Supreme Court decision allowing mentally ill, "sexually dangerous" inmates to be held on a federal court's civil commitment after completing their prison sentences is one of the court's worst decisions in recent memory.

Those inmates now can be held perhaps forever by a civil commitment, perhaps for reasons having nothing to do with their crime, and all of that should make the rest of us uneasy. It mocks what we believe is right.

Don't get me wrong. Sexual predators are a waste of oxygen. I've seen what they do. If it were up to me, there would be a lot more oxygen for the rest of us.

But what is almost as troublesome is a legal system that has become, in too many ways, a crapshoot.

The court had a single question to answer in this case, United States v. Comstock: Did Congress have the authority under the Constitution's Necessary and Proper Clause to enact the Adam Walsh Child Protection and Safety Act in 2006? Section 4248 of that statute is what allows some prisoners' civil commitment after their criminal sentences are completed.

In a 7-2 ruling, with only Justices Clarence Thomas and Antonin Scalia dissenting, the court majority twisted itself into a pretzel. It transformed the little-heard-of Necessary and Proper Clause, with its seemingly limited application, into an independent power allowing Congress to do anything it deems proper or necessary -- no matter whether the action in question has anything to do with its other enumerated powers. The decision leaves myriad questions -- about federalism and states' rights, for instance -- and oversteps by radically expanding the Necessary and Proper Clause.

The clause is the last of Congress' 18 enumerated powers and permits it to enact legislation that "shall be necessary and proper for carrying into execution" the limited constitutional powers granted to Congress. Using it to justify a law detaining inmates civilly beyond their prison release date would seem a strange stretch as the law in question "executes" no enumerated power.

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The innocuous clause, Justice Thomas points out in his dissent, now has been elevated to a federal police power. The case challenging the statute sprang from five civil-commitment proceedings initiated by the United States in the District Court for the Eastern District of North Carolina. That court in 2007 dismissed the cases, rejecting government arguments that the commitment proceedings were civil rather than criminal. The court said the law was unconstitutional on two grounds.

First, it is beyond congressional power under the Commerce Clause and the Necessary and Proper clause. Second, it violates due process because it requires the government to prove the commission of prior acts or attempts to engage in sexually violent conduct of child molestation by only "clear and convincing" evidence rather than "beyond a reasonable doubt."

The 4th U.S. Circuit Court of Appeals agreed, ruling the law unconstitutional because it exceeds Congress' enumerated powers "to confine a person solely because of asserted 'sexual dangerousness' when the Government need not allege (let alone prove) that this 'dangerousness' violates any federal law."

If Congress is free to ignore or redefine its few enumerated powers, what could be next? If government officials can hold mentally ill and dangerous sexual predators under a civil commitment because of a belief they will offend again after their prison release, why not commit, say, robbers and burglars about to be set free? They have an impressive recidivism rate, as do all criminals -- about 60 percent -- and they occasionally kill people.

Or, why not commit those abused as children? They are the most likely, after all, to abuse children later. Or drug dealers? Or, perhaps, pesky journalists who just will not shut their yaps and stop criticizing the government? The list is endless. So many to hold for "treatment."

Why not, if we are absolutely determined to keep certain criminals jailed longer, do the logical thing and change the laws to lengthen possible sentences after a fair trial? Why abuse out battered Constitution by stretching it further out of shape? And, really, is not this sort of thing best left to the states, which have a vested interest in the safety of their citizens?

As government employs this dodge and that to seek ever more power and control, remember this: What we allow it to do to some of us, even the most violent vermin, it can do to us all.

Paul Jenkins is editor of the Anchorage Daily Planet.

Paul Jenkins

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Paul Jenkins

Paul Jenkins is a former Associated Press reporter, managing editor of the Anchorage Times, an editor of the Voice of the Times and former editor of the Anchorage Daily Planet.

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