Published June 20, 2011
A convicted sex offender whose 2010 Supreme Court case has played a small role in the legal fight over the legitimacy of President Obama's health care law will not make a return appearance before the high court.
Monday's announcement means Graydon Earl Comstock will remain in federal custody under a civil commitment law upheld by the justices last year. The law allows government officials to seek the continued detention of individuals who are considered likely to commit more violent sexual crimes if they're released from custody.
Justice Stephen Breyer wrote the court's 2010 ruling affirming the government's right to hold Comstock and other sex offenders after their criminal sentences expired. The ruling was justified under the Constitution's Necessary and Proper Clause. It's the same clause that has been part of the Obama Administration's defense of the Affordable Care Act.
Justice Department lawyers have cited last year's decision in briefs before each of the three federal appellate courts that have heard arguments in the health care disputes. None have yet returned an opinion.
In the cases before the 4th and 11th Circuits, Principal Deputy Solicitor General Neal Katyal quoted the same passage from Breyer's Comstock opinion which itself borrows from language in a hallmark decision written by Chief Justice John Marshall in 1819.
"The Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are 'convenient, or useful' or 'conducive' to the authority's 'beneficial exercise.'"
Katyal then added that "this deference reflects both separation-of-powers principles and Congress' superior capacity to make empirical and operational judgments."
The Comstock decision was joined in full by Chief Justice John Roberts, Justices Ruth Bader Ginsburg and Sonia Sotomayor, and now-retired Justice John Paul Stevens. Justices Anthony Kennedy and Samuel Alito agreed with the result of the case but each wrote separately to express reservations about the breadth of Breyer's opinion.
These concurrences and the dissent written by Justice Clarence Thomas (joined by Justice Antonin Scalia) provide insight on how each might ultimately view a health care case that could reach the high court next year. In his dissent, Thomas railed against having the Necessary and Proper Clause work as a catch-all justification for federal encroachment on the states.
"No matter how 'necessary' or 'proper' an act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than 'carrying into execution' one or more of the federal government's enumerated powers."
The legal issue turned away by the court Monday was whether the government had to prove "beyond a reasonable doubt" that Comstock was likely to commit another violent crime if he’s released into society. Comstock's lawyers said the lower standard of "clear and convincing evidence" was insufficient to keep their client in custody past his criminal sentence.