The Court’s holding today in U.S. v. Comstock presents a real dilemma. The federal “civil confinement” law at issue in the case — which permits the federal government to detain an sex offender after their sentence expires — raises some obvious civil liberties concerns. In a couple recent cases at the state level, the Court’s more liberal members have expressed concerns about the adequacy of the due process safeguards put in place for some of these programs, while Scalia and Thomas have voted for granting states very wide leeway to confine individuals they claim to be dangerous. The case today, however, did not deal with whether the federal law was consistent with the due process of law guaranteed by the Fifth Amendment, but whether the relevant statute was within the powers of the federal government. This presents a real potential dilemma for many of the Court’s justices (and for me.) So, reluctantly, I would agree with the majority that the law is within the federal government’s powers under the necessary and proper clause. But I also have a certain amount of respect for Thomas and Scalia, who (despite a general lack of sympathy for the legal claims of individuals detained under civil confinement laws) argued that the law exceeds the constitutional powers of the federal government.
There’s a dilemma for 7 of the 9 justices, anyway. For Alito and Roberts, figuring out that the policy is consistent with Republican policy goals pretty much ends the constitutional inquiry, so they voted to uphold the law. (Amusingly, a couple days ago David Nieporent claimed that Alito’s 20 year record of utterly orthodox Republican statism on the federal courts isn’t enough to conclude that Alito is an utterly orthodox Republican statist without any of the libertarian streak or competing legal values of Scalia and Thomas. Right — I’m sure any day now Alito will take off the mask and reveal himself as the next Richard Posner. In related news, Nieporent also thinks it’s outrageous to suggest that the Yankees will have a better record than the Orioles this year.)