4th Cir.: Federal commitment law violates Commerce Clause

The Fourth Circuit struck down a federal civil commitment law as exceeding Congress’s powers under the Commerce and Necessary and Proper Clauses.

The court held that the law amounts to an improper federal regulation of violent crime without any economic nexus, per U.S. v. Morrison, 529 U.S. 598 (2000). The court further reasoned that the law had only a tenuous connection to federal prosecutorial or penal powers, and thus could not be sustained on the basis of the Necessary and Proper Clause. The case could form the vehicle for the next major Commerce Clause case before the Supreme Court. United States v. Comstock, --- F.3d ----, 2009 WL 42476 (4th Cir. Jan. 8, 2008) (No. 07-7671).

 

          The commitment provision is part of the Adam Walsh Child Protection and Safety Act of 2006. The case concerns consolidated challenges to 18 U.S.C. § 4248, which permits the indefinite civil commitment of federal prisoners certified to be “sexually dangerous” by the Attorney General. A district court must find that the person is “sexually dangerous” under a “clear and convincing” standard. This provision is far broader than most state commitment laws. So far, the Government has used this procedure in over 60 cases, nearly always seeking commitment at the tail-end of a sentence. Federal commitment may continue until state commitment procedures are undertaken or the Government determines the person is no longer “sexually dangerous.” The district court here is one of two that has held § 4248 unconstitutional. United States v. Tom, 558 F.Supp.2d 931 (D.Minn.2008) (summary here); United States v. Comstock, 507 F.Supp.2d 522 (E.D.N.C.2007). (No other court of appeals has addressed the law.) The district court here also found a violation of substantive due process, but the Fourth Circuit declined to address that issue.

 

          The court dealt with the Commerce Clause only briefly. The Government argued that § 4248 is proper Commerce Clause legislation because sexual violence substantially affects interstate commerce. The court held that

Morrison forecloses any such argument. Indeed, § 4248 bears striking similarities to the VAWA provision struck down in Morrison. First, like [the Violence Against Women Act], § 4248 provides a civil remedy aimed at the prevention of noneconomic sexual violence. … Second, the target of the statute challenged here (sexual dangerousness) - no less than the target of the statute invalidated in Morrison (gender-motivated violence) - is “not, in any sense of the phrase, economic activity.” Like the gender-motivated violence banned in Morrison, sexual dangerousness does not substantially affect interstate commerce. Indeed, unlike Morrison, the record here does not even contain any legislative findings to the contrary.

In a footenote, the court minimized the impact of Gonzales v. Raich, 545 U.S. 1 (2005) (upholding application of Controlled Substances Act to intrastate production of medical marijuana), which some have seem as a substantial retreat from the reasoning of Morrison. The panel said that “nothing in [Raich] alters the core holding of Morrison that Congress lacks authority to regulate noneconomic sexual violence.” And unlike the purely local activity regulated in Raich, the court said that “§ 4248 constitutes no part of a ‘comprehensive’ legislative scheme that targets interstate markets.” (Although the argument was apparently not made in this case, the Government has argued in challenges to other Adam Walsh Act provisions that the Act constitutes a comprehensive scheme to regulate the interstate market in child pornography. See U.S. v. Myers, --- F.Supp.2d ----, 2008 WL 5156671 (S.D.Fla. 2008) (registration provisions invalid; summary here).)

 

          The Government chiefly relied, however, on the Necessary and Proper Clause to support § 4248. The court said that under this clause, legislation must be “necessary to achieve ends within Congress's enumerated powers.” The U.S. contended that § 4248 is necessary to maintain the federal penal system. The court disagreed; it said that while Congress has the power to maintain that system and can exercise broad authority over federal prisoners during their sentences, “these powers are far removed from the indefinite civil commitment of persons after the expiration of their prison terms, based solely on possible future actions that the federal government lacks power to regulate directly.” At the completion of a federal sentence, the court said, the federal power to prosecute is “exhausted” and cannot justify further federal action.

 

          Nor, said that court, could any federal power to prevent sexual crimes justify § 4248. First, most sex offenses violate only state law, and § 4248 does not require any showing that a person is likely to commit another federal offense. Compare United States v. Perry, 788 F.2d 100 (3d Cir.1986) (upholding pretrial detention based on finding of likelihood of committing specific federal crimes). Moreover, § 4248 can be used against prisoners who never committed a sex offense in the first place. The court also distinguished Greenwood v. United States, 350 U.S. 366 (1956) (upholding commitment of persons found incompetent to stand trial), saying that while the law in Greenwood served to prevent “frustration” of federal prosecutions, § 4248 applies only after the completion of any federal prosecution and punishment.

 

          The court noted that the federal government has the power to notify state authorities of a person’s dangerousness, and even to encourage state action by placing conditions on federal funds (e.g., funding for state mental hospitals).

 

          Unless the en banc Fourth Circuit reverses, this case may go before the Supreme Court, because the panel struck down a federal law. Although the statute concerned is an unusual one, it could present an opportunity for the Roberts Court to reconfigure federalism jurisprudence. Some conservative law professors are already arguing that the panel’s decision is in tension with the broad view of the commerce power indicated in Raich. Any new decision on the Commerce Clause could impact a variety of federal laws. See, e.g., Klingler v. Dept. of Revenue, 366 F.3d 614 (8th Cir. 2004) (application of Americans with Disabilities Act to nominal fees for disabled parking placards violated Commerce Clause), vacated and remanded for further consideration in light of Raich, 545 U.S. 1111 (2005).