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Not Necessarily Proper: Comstock's Errors and Limitations

Ilya Shapiro

Cato Institute

Trevor Burrus

Cato Institute

February 13, 2011

Syracuse Law Review, Vol. 61, 2011

In United States v. Comstock, the Supreme Court upheld § 4248 of the Adam Walsh Act, which allows for the civil commitment of federal prisoners deemed “sexually dangerous” for an indefinite period after they’ve completed their sentences. The case dealt with that most basic of constitutional questions: Where does Congress find its authority to enact a particular law? Justice Breyer, writing for the majority, found warrant for § 4248 in Congress’s power “to make all Laws which shall be necessary and proper for carrying into Execution” its other powers. But which of Congress’s enumerated powers does § 4248 execute? And is § 4248 necessary and proper for executing that power? Unfortunately, the Court focused mainly on the second question, arguing that Congress has “broad authority” to enact laws to further its enumerated powers. Moreover, the five-factor “test” Breyer offered asked not whether § 4248 was necessary and proper for executing an enumerated power but for “a jumble of unenumerated ‘authorities,’” as Justice Thomas put it in a searching dissent joined by Justice Scalia. Fortunately, Justice Breyer’s opinion was joined in full by only four other justices — with Justices Kennedy and Alito writing separately to emphasize the strict requirements that federal laws invoking the Necessary and Proper Clause must meet (even if those requirements were satisfied here). These concurrences, along with an impracticable majority opinion and a logically powerful dissent, suggest that Comstock may have limited application beyond the four corners of civil commitment law. Most prominently, Comstock seems to have little effect on the ongoing Obamacare litigation.

Number of Pages in PDF File: 13

Keywords: sexual predators, Necessary and Proper, Adam Walsh Act, Obamacare, health care reform, individual mandate, civil commitment, 4248

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Date posted: February 14, 2011 ; Last revised: April 10, 2011

Suggested Citation

Shapiro, Ilya and Burrus, Trevor, Not Necessarily Proper: Comstock's Errors and Limitations (February 13, 2011). Syracuse Law Review, Vol. 61, 2011. Available at SSRN: http://ssrn.com/abstract=1760910

Contact Information

Ilya Shapiro (Contact Author)
Cato Institute ( email )
1000 Massachusetts Avenue, N.W.
Washington, DC 20001-5403
United States
202-218-4600 (Phone)
202-842-3490 (Fax)
HOME PAGE: http://www.cato.org/people/ilya-shapiro
Trevor Burrus
Cato Institute ( email )
1000 Massachusetts Avenue, N.W.
Washington, DC 20001-5403
United States
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