Back to the Commerce Clause
The upcoming Supreme Court term could be the most consequential of the last decade. I’ve already done some posts about Bilski (the patent subject matter case), and now I want to do one about United States v. Comstock, which will the first significant Commerce Clause case for the Court since the addition of Chief Justice Roberts, Justice Alito, and Justice Sotomayor.
Comstock addresses 18 U.S.C. s. 4248, which gives the Attorney General the power to order the civil commitment of “sexually dangerous” persons in the custody of the Bureau of Prisons after their criminal sentence expires. The Fourth Circuit held that this provision was unconstitutional under United States v. Morrison, in part because s 4248 lacks a sufficient relationship with interstate commerce and intrudes on an area that is traditionally governed by state law.
In Raich v. Ashcroft (the most recent Commerce Clause case on congressional power), the Court held that when Congress enacts a comprehensive regulatory scheme, the individual components of that scheme are constitutional even if they bear on purely local activities. Comstock concluded that this analysis did not apply to s 4248, because the civil commitment authority was not part of a broader framework for addressing sexual violence or crimes. I find the Fourth Circuit’s analysis convincing under the prevailing case law, though who knows what the new Justices will say.
Nevertheless, I think that the current approach to these disputes is wrongheaded. As I explained in an article a few years ago in Georgetown, courts should defer to congressional judgments about its authority unless the regulated activity arguably restricts the exercise of a personal enumerated or unenumerated right. The purpose of enumerated powers, after all, was to protect individual freedom. Accordingly, if Congress tries to exercise its commerce authority in a sensitive area, they ought to be required to provide a more persuasive set of reasons for such action.
If my framework is applied, then Lopez was correctly decided because it was about guns. (Admittedly, that’s easier to say after Heller.) Morrison was wrong, because there was no individual right at issue in that case. Raich was probably right, although it depends what you make of Randy Barnett’s argument that there should be an unenumerated right to obtain medical treatment when you are in severe pain and no other alternatives work. Carhart is troubling, because it is not clear that the regulation of partial-birth abortion is justified under the Commerce Clause given the abortion case law. And Comstock would be wrong for the same reason that Morrison is wrong.
BTW, in anticipation of the objection that, “Fine, but what you’re saying has nothing to do with commerce,” I would answer, “Do you really think that the case law has anything to do with commerce now?”
UPDATE: So I think that the commentators are right that I was too hasty in dismissing the idea that civil commitment raises individual rights concerns that would be sufficient to trigger heightened scrutiny of the federal provision at issue in Comstock. I’ll have to look at the case law on that issue more closely.