Supreme Court Upholds Law Allowing Federal Officials To Indefinitely Hold "Sexually Dangerous" Prisoners After Completed Sentences, Thomas Dissents

The Washington Post reports that the "Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered 'sexually dangerous' after their prison terms are complete. The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered 'sexually dangerous.'... President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates. The act, named after the son of "America's Most Wanted" television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released. A fifth man who also was part of the legal challenge was charged with child sex abuse but declared incompetent to stand trial. The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered 'sexually dangerous.' But 'we conclude that the Constitution grants Congress legislative power sufficient to enact' this law, Breyer said."

"The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others," said Justice Stephen Breyer, writing the majority opinion.

Justice Clarence Thomas dissented from the court's judgment, saying Congress can only pass laws that deal with the federal powers listed in the Constitution. The case revolved around the issue of whether "Congress has power under the Necessary and Proper Clause to enact a law authorizing the Federal Government to civilly commit 'sexually dangerous persons' beyond the date it lawfully could hold them on a charge or conviction for a federal crime." Thomas's opinion is basically that in order to be "necessary and proper" and therefore a power of Congress there must be a relation to a clearly enumerated power in Article I Section 8 of the Constitution. He simply does not see "the power to enact a civil-commitment regime for sexually dangerous persons" being "one or more of those federal powers actually enumerated in the Constitution" and the federal government "identifies no specific enumerated power or powers as a constitutional predicate." Further, the "Court’s newly minted test" for what is necessary and proper "cannot be reconciled with the [Necessary and Proper] Clause’s plain text or with two centuries of our precedents interpreting it." He writes that "absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States." He expressly states in his dissent that this is a power of State government, that "the power 'to protect the community from the dangerous tendencies of some' mentally ill persons, are among the numerous powers that remain with the States." As he argues, "[t]o be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

Justice Thomas concluded his dissent by saying "[a]bsent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States." He points out that "[n]ot long ago, this Court described the Necessary and Proper Clause as 'the last, best hope of those who defend ultra vires congressional action.' Regrettably, today’s opinion breathes new life into that Clause, and — the Court’s protestations to the contrary notwithstanding — comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.' In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grant of authority as a 'pretext...for the accomplishment of objects not intrusted to the government.'" Tweet