an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
United States v. Comstock, which came down today, is a really interesting opinion for con law professors because it relates to things we teach in the introductory course, namely, the scope of implied federal powers and the meaning of the Necessary and Proper Clause. I'll get to that point in a bit.
In the meantime, you might wonder whether the decision will have any effect on the constitutionality of the individual mandate for health care. The answer is, probably not.
Seven Justices agree on the result in Comstock. Federal law allows courts to order civil commitment of mentally ill and sexually dangerous federal prisoners after their federal sentence has expired if no state is willing to accept custody. In Comstock, the Court holds that the Necessary and Proper Clause gives Congress power to create a civil commitment scheme. In particular, doing so is necessary and proper to effectively run a federal corrections system that imprisons people for violating federal crimes that, in turn, further the federal government's enumerated powers.
Five Justices (the four liberals and Chief Justice Roberts) form the majority, and two Justices (Kennedy and Alito) concur in the result. The debate between them concerns what standard of review should apply to the Necessary and Proper Clause. Justice Breyer's majority opinion says that the test is whether Congress could reasonably have concluded that the regulation was necessary and proper. He uses the term "rational basis." Kennedy doesn't want to use the super deferential standard of Williamson v. Lee Optical (used in economic due process cases); rather, he wants to make sure there is an actual and reasonable factual connection between means chosen and constitutionally legitimate ends. Justice Alito also doesn't want to adopt so deferential a standard. This is the part of the opinion that will be grist for the mill in first year con law classes.
Nevertheless, under either standard of review, the health care bill is perfectly constitutional. Few people doubt that the individual mandate directly furthers Congress's goal of regulating the insurance industry to prevent denial of coverage for preexisting conditions and lifetime caps on insurance. Without the individual mandate, people would wait until they got sick to buy insurance, driving up premiums and making insurance reform impossible. So there is a clear means-ends fit between the individual mandate and regulation of interstate markets for insurance. Nobody on the Court is going to deny this connection.
Even Justice Scalia, who joins Justice Thomas in dissent, does not join one part of the dissent, (Part III A 1 b) and the part he doesn't join is pretty telling: This part of the dissent, in essence, denies that Congress has the power to pass laws that make other laws it passes effective. Scalia would beg to differ: he argued for precisely that proposition in his concurrence in Gonzales v. Raich, the medical marijuana case.
Another interesting thing about Comstock, however, is that it shows the connection between Congress's Article I, section 8 powers and the basic structural principle that underlies these powers. That principle was stated in Resolution VI at the Philadelphia Convention: “That the national Legislature ought to possess the legislative rights vested in Congress by the confederation;” “and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Congress's list of enumerated powers, including the Necessary and Proper Clause, was designed to put these principles into action.
Among other things, Resolution VI suggests that Congress should have the power to regulate in cases where the states face a collective action problem that the federal government can solve more effectively. I've made this point in my forthcoming Michigan article on the Commerce Clause, and it is a central claim of Neil Siegel and Robert Cooter's forthcoming Stanford article "Collective Action Federalism: A General Theory of Article I, Section 8" [which, unfortunately, does not seem to be currently posted on SSRN]
Put differently, when a federal statute solves a genuine collective action problem, courts should give Congress the benefit of the doubt in interpreting the scope of its enumerated powers, including Congress's powers under the Necessary and Proper Clause. The majority in Comstock seems to adopt this approach.
Why is Comstock a collective action issue? Simply put, it is a NIMBY case. After a mentally dangerous sexual predator finishes his federal sentence, the federal government wants to send him back to a state, either the state where he committed the crime, the state where he resided before his conviction, or some other state that might arguably have a connection to him. The difficulty is that taking custody will cost a state money. Once a known mentally ill sexual predator is released into a state's custody, the state is under enormous pressure to institute its own civil commitment proceedings, at which point the state will be stuck with the costs of taking care of the former prisoner, possibly indefinitely. Therefore no state has an incentive to ask for custody; each hopes that some other state will foot the bill. As Justice Alito puts it, "The statute recognizes that, in many cases, no State will assume the heavy financial burden of civilly committing a dangerous federal prisoner who, as a result of lengthy federal incarceration, no longer has any substantial ties to any State." Thus, the collective action problem. Most states would be happier if the federal government simply solved this problem for them, and that is why 29 States as amicus curiae argued for the constitutionality of the statute.
Justice Thomas' dissent handles this inconvenient fact by arguing that even if states want the federal government to solve a problem for them, that's their tough luck. Respecting the abstract principle of state sovereignty is far more important than respecting what actual states actually want:
Nevertheless, 29 States appear as amici and argue that §4248 is constitutional. They tell us that they do not object to Congress retaining custody of “sexually dangerous persons” after their criminal sentences expire because the cost of detaining such persons is “expensive”—approximately $64,000 per year—and these States would rather the Federal Government bear this expense. Brief for Kansas et al. 2; ibid. (“[S]ex offender civil commitment programs are expensive to operate”); id., at 4 (“these programs are expensive”); id., at 8 (“[T]here are very practical reasons to prefer a system that includes a federal sex offender civil commitment program . . . . One such reason is the significant cost”).
Congress’ power, however, is fixed by the Constitution; it does not expand merely to suit the States’ policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds. By assigning the Federal Government power over “certain enumerated objects only,” the Constitution “leaves to the several States a residuary and inviolable sovereignty over all other objects.” The Federalist No. 39, at 285 (J. Madison). The purpose of this design is to preserve the “balance of power between the States and the Federal Government . . . [that] protect[s] our fundamental liberties.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 572 (1985) (Powell, J., dissenting); New York v. United States, 505 U. S., at 181. It is the States’ duty to act as the “immediate and visible guardian” of those liberties because federal powers extend no further than those enumerated in the Constitution. The Federalist No. 17, at 169 (A. Hamilton). The Constitution gives States no more power to decline this responsibility than it gives them to infringe upon those liberties in the first instance. FTC v. Ticor Title Ins. Co., 504 U. S. 621, 636 (1992) (“Federalism serves to assign political responsibility, not to obscure it”).
I understand the argument, but don't find it particularly plausible in this context. "Fundamental libert[y]" does not seem to be increased by denying the federal government the power to civilly commit mentally ill sexual predators, because, as Justice Thomas points out, states will have to commit them if the federal government does not. Thomas does not argue, in other words, that forcing states to take custody promotes liberty because states are more likely to respect the liberty of these mentally ill individuals. Quite the contrary, he notes "the plethora of state laws enacted in recent decades to protect communities from sex offenders." (Nor is he arguing that if states were to refuse to civilly commit sexual predators, this would increase the liberty of families in the areas where these persons live.) So the connection to liberty is left largely unexplained. Moreover, forcing states to commit sexually dangerous persons themselves drains money from state coffers, preventing states from performing other valuable services for their citizens. In short, Justice Thomas clearly loves the states, but apparently not enough to promote either their actual sovereignty or their actual interests.