Mentally-Ill, Sexually-Violent Prisoners, the Constitution, and Health-Care Reform.

Do you object if mentally-ill, sexually-violent federal prisoners are confined beyond the end of their sentences? If they are kept locked up until they are well – so that they aren’t a danger when they’re released? Does anybody object to this?

Mentally-ill, sexually-violent prisoners object, and their lawyers. And they discovered that they had judicial allies: trial judges and justices of Court of Appeal. Some of these judges and justices ruled that Congress had exceeded its authority by passing the law that kept these prisoners confined.

                 1. The prisoner’s argument: the enumerated powers of Congress.

 The prisoners' argument was simple: the law was unconstitutional. Congress can’t pass laws that the Constitution doesn’t authorize. Art. I, sec. 8 of the Constitution describes the kinds of laws that Congress can pass. Think of Art. I, sec. 8 as a basket of congressional powers in the Constitution.

And none of the powers in that basket specifically authorizes Congress to pass laws to confine mentally-ill, sexually-violent prisoners. Ergo: the law crashes against the Constitution and sinks below the waves. So the argument went.


2. The Supreme Court disagrees.The Supreme Court disagreed. To reach this conclusion, the Supreme Court called upon the so-called "Necessary and Proper clause". That clause comes at the end of Art. I, sec. 8. It says:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

                   3. The Supreme Court’s reasons.

Now, in this basket of Congressional authority, there is no authority to punish or imprison. That authority is nowhere expressed. But there is other authority. And the Supreme Court has said that the power to punish and imprison is "necessary and proper for carrying into Execution" that other authority.

In other words, the power to punish and the power to imprison is necessary and proper to carry out other authority given to Congress by the Constitution, even though the power to punish and imprison is not expressed in the Constitution.

So: Art. I, sec. 8 (the "enumerated powers" of Congress) authorizes Congress to enact laws "[t]o establish Post Offices and post Roads . . .." Because Congress has the power to establish post offices, Congress has "necessary and proper" power to pass laws to punish persons who steal mail. And because it has the power to punish persons who steal mail, Congress has "necessary and proper" power to enact laws to build prisons to house persons convicted of stealing mail.

Other examples abound. Congress can punish and imprison for civil-rights violations and voting-rights violations because of the Fourteenth and Fifteenth Amendments. It can punish and imprison for embezzlement of federal funds because of the Spending Clause. Congress can punish and imprison for perjury under its authority to create federal courts. The list goes on.

And the Supreme Court said that the power to civilly commit mentally-ill, sexually violent prisoners derives from its power to imprison, which derives from its power to punish, which derives from its power to regulate under specified authority in its basket of powers.

                    4. United States v. Comstock: the case that I’ve been talking about.

The case that discusses all of this is United States v. Comstock. It was decided in May of 2010. Five of the nine justices joined the majority opinion that upheld the civil-commitment law. Two justices concurred; that means that they agreed with the conclusion of the majority opinion, but not necessarily the reasoning. Two justices thought the decision should have gone the other way. Justice Elena Kagan did not vote in the case. That was because, as Solicitor General, she argued the case in the Supreme Court before President Obama made her a Justice.


5. Alright.I, for one, am glad that mentally-ill, sexually violent prisoners can be civilly-committed until they are well enough so that they no longer pose a danger.

I’m glad, just like I’m glad that the Veterans Health Administration provides health care to veterans. Providing health care is not among the enumerated powers. But the power to "raise and support Armies" and to "provide and maintain a Navy" are. And the Veterans Health Administration, and the health care that it provides, are "necessary and proper" to carry out those enumerated powers. (To those who interpret the Constitution in a fundamentalist fashion: note the absence of authority to create and maintain the Air Force.)


6. What this means for the Affordable Care Act.The Necessary and Proper Clause will be important when the Supreme Court takes up the Affordable Care Act ("Obamacare" to its detractors). The solid majority that upheld the highly-derivative civil-commitment statute in Comstock gives supporters of the Affordable Care Act reason to hope. That solid majority included conservative Chief Justice John Roberts. And conservative Justice Samuel Alito concurred with the majority opinion. Justice Kagan did not vote, but she certainly would support the Affordable Care Act.

United States v. Comstock suggests a broad interpretation of the Necessary and Proper Clause. That makes supporters of the Affordable Care Act optimistic because persons who look to the courts to undermine the law argue that Congress exceeded it's authority in passing it. A broad interpretation of the Necessary and Proper Clause could only make it easier for the Supreme Court to rule that Congress had the right to pass health-care reform.

That might mean that, after the Supreme Court rules on the Affordable Care Act, parents can get health insurance for their children who are born with birth defects; sick people won’t die because they’re too old to stay on their parent’s health-insurance policy; and insurance companies can’t drop you because you get sick.

Here's a link to the opinion in United States v. Comstock:
http://www.supremecourt.gov/opinions/09pdf/08-1224.pdf