I am talking about the 7-2 decision in Monday's United States v. Comstock, a case that asked whether the federal government has the authority to continue to indefinitely detain a person who has served out his federal prison sentence, or who is deemed incompetent to stand trial, if the government has clear and convincing evidence that he is a "sexually dangerous" person. The high court had already granted state governments this power. But precisely because this is the traditional realm of the states, the 4th Circuit struck down the civil confinement federal statute, finding that it "granted the federal government unprecedented authority over civil commitment—an area long controlled by the states."
Dahlia Lithwick is responding to a ruling that has gotten some people nervous. But, is it a traditional realm of the states to determine when to release federal prisoners?
As noted by the article, the Supreme Court (via split decisions for which Scalia/Thomas supported broad state power) already held that such a basic civil commitment regime is allowed under the Due Process Clause though it requires some limitations as to determinations of dangerousness (S/T dissented in that case). The liberals dissented 5-4 in regards to extended detention past the time they were sentenced criminally.* Let it be noted, however, those deemed dangerous to others now can be detained civilly under a 'clear and convincing' standard as a general matter.
The law here provides some safeguards, including court hearings, treatment, requirements to transfer even sexually dangerous criminals once their federal sentences are up if states are willing to take control of them and putting certain decisions in the hands of directors of the treatment facilities -- who have to notify the court when the person is deemed no longer dangerous, including pursuant to treatment regimes where such lack of dangerousness might be a matter of drug treatment or oversight. This doesn't necessarily justify it, but we aren't talking "throw Padilla in a hole" somewhere type regimes.
As to federal power, the case looked at five general interests, taken as a whole. Any one piecemeal might not have been enough. The concurring opinions, probably rightly, were somewhat worried about the open-ended nature of some of the language. But, in a different context, five votes would not be there (e.g., a general murder statute), so potentially overblown dicta really should be taken with a grain of salt. The issue here are federal prisoners, not even some health insurance regime, which anyways, could be defended by recent rulings like Gonzalez v. Raich (the medicinal marijuana case) anyways. The ability to detain those deemed mentally unfit also is different from enemy combatants, including those Obama wants to detain for fear of dangerousness that is not mental but criminal or perhaps somehow military.
Leave an opening, it often is taken, but it also is important to not make more of an opening than it reasonably can be understood to provide. The feds might try to use selective quotations of the ruling for their ends, but nothing unique to this case in that regard. Bottom line, I might not like the power given to detain people civilly in respect to those labeled dangerous sexual deviants, but given the power was held there already, the application here does not seem unwarranted.
Thus, a 7-2 ruling, with two "federalists" wary at some of the language in pro-federal power Justice Breyer. At to the article's reference to Obama, this is pursuant to a congressional statute (related to one upheld decades ago), and if he tries to apply it to non-germane matters, sure, call him on it. Enemy combatant regimes etc. aren't to be struck down on federalist grounds though. As to basic concern for federal power, again, Scalia and Thomas was less protective than some in the majority in that general area most of the time, weren't they?
It is a win for Kagan as SG, after a few losses. Any port in a storm.
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* To update that point, the liberals dissented on somewhat narrow grounds, allowing civil commitment if it was less punitive. As Kennedy noted in his concurring opinion:
If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.
And, a follow-up opinion partially addressed that concern. But, again, though discussion of this case tends to elide past it, this case is about enumerated powers, not such due process concerns.