It’s dumb to waste time asking Elena Kagan about her sexuality and critical to ask whether she believes it’s “necessary and proper” that all Americans have health care.
Rather than asking about sexual orientation, Judiciary Committee members hoping to gain insight into Elena Kagan’s legal philosophy might want to focus on sexual offenders instead.
Last week in the Comstock decision, the U.S. Supreme Court upheld a federal law that allows dangerous sex offenders to be incarcerated indefinitely, even after their criminal sentences expire. Enacted in 2006 as part of the “Adam Walsh Act,” the law provides that an individual convicted of a federal sex crime can then be subjected to a separate trial to determine whether he should remain civilly committed, potentially for life, as a “sexually dangerous” person.
About half the states have similar laws, including Massachusetts. Indeed, the dispute in Comstock was precisely about whether only the states can enact such statutes because the federal government’s lawmaking authority is limited to that which is expressly authorized by the Constitution. The states, under the 10th Amendment, get to regulate everything else.
Because there’s no constitutional provision that says: “Congress may enact laws to civilly commit sex offenders,” the group of perpetrators who filed the case argued the Walsh Act is invalid. Two dissenting justices, Scalia and Thomas, agreed and wrote separately to express their concern that while Congress can enact laws to protect against harm to interests over which they do have authority, e.g., mail fraud, sexual violence is uniquely a state law problem.
The majority found Congress’ authority to civilly commit sex offenders in the “necessary and proper” clause of Article 1, section 8 of the Constitution, which allows Congress to pass laws that give effect to other federal laws.
The dissent countered that the clause does not, in and of itself, provide an independent source of Congressional lawmaking authority, and because the Walsh Act created a new federal scheme for incarcerating people, rather than merely giving effect to an existing federal law, the act cannot be sustained as “necessary and proper.”
The majority reasoned that if Congress has the power to enact federal sex crimes laws, then it has the concomitant authority, indeed the duty, to deal appropriately with those convicted under such laws. The majority then cited a federal statute that allows officials to retain custody over prisoners who, otherwise entitled to release, have a communicable disease that poses a risk to public safety. If Congress can restrain sick prisoners because of a risk of harm to the public, they can restrain dangerous prisoners who pose a similar risk.
Maintaining a careful balance of power between state and federal governments is important. But the dissenters’ strict constructionist view of the Constitution as a document that can only be read literally is a bit like saying the Bible has no value unless all the parables are accepted as real events. There’s “strict” and then there’s silly.
The 7-2 Comstock ruling involved a bipartisan majority not because the issue was apolitical, but because the Supreme Court has the capacity to be pragmatic.
This pragmatism, as applied to the Walsh Act through the “necessary and proper” clause, has onlookers speculating that the court may use a similar analysis to uphold the controversial provision in Obama-care that compels individuals to purchase health insurance. Opponents claim the bill is unconstitutional because Congress cannot regulate that which does not affect interstate commerce and a person choosing not to buy insurance is, by definition, not engaging in commerce.
If the court views the issue as one involving commerce, critics may prevail, but if viewed through a Comstock lens, mandatory insurance may well be upheld.
Which is why it’s dumb to waste time asking Elena Kagan about her sexuality and critical to ask whether she believes it’s “necessary and proper” that all Americans have health care.
Wendy Murphy is a leading victims rights advocate and nationally recognized television legal analyst. She is an adjunct professor at New England Law in Boston. She can be reached at firstname.lastname@example.org. Read more of her columns at The Daily Beast.