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Supreme Court justices appear split on US sex offender law

The 2006 law permits the US government to hold convicted sex offenders even after they've served their sentences. Hearing arguments Tuesday, the Supreme Court justices sparred over whether Congress has exceeded its authority.

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Section 4248’s civil commitment procedure has no direct tie to the traditional source of congressional power: the regulation of interstate commerce under the commerce clause. So Solicitor General Kagan is arguing that it is supported through the Constitution’s necessary and proper clause as a necessary feature of the federal criminal justice and penal system. 

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Mr. Dubois urged the justices to reject such an expansive view of the necessary and proper clause.

Justice Antonin Scalia was an enthusiastic ally for Dubois.

At one point he told the solicitor general: “This is a recipe for the federal government taking over everything.”

Justice Scalia said the necessary and proper clause doesn’t exist in the Constitution to authorize the federal government to do whatever is necessary and proper for the good of society. Rather, he said, the clause is designed to authorize federal action tied to an enumerated power of the national government.

Kagan replied that the federal civil commitment program was necessary and proper to the responsible administration of the federal criminal justice system. She said Congress was aware that sometimes states were unwilling to take charge of dangerous sexual offenders upon release from federal custody. If the federal government didn’t act, these dangerous individuals might be freed, she said.

But what if a state was willing to address the issue? Chief Justice John Roberts asked. Would that mean it would no longer be necessary and proper?

Kagan agreed. “That is exactly right,” she said.

Scalia said he found it difficult to believe that if the federal Bureau of Prisons contacted an elected governor or a state attorney general to notify them of the imminent release of a dangerous sexual predator that they would not take action to protect state residents and to protect their own political self-interests.

It is expensive – $65,000 a year – to hold such an individual, Kagan said, and history shows some states are reluctant to take action.

On the other side of the argument, Justice John Paul Stevens expressed skepticism of Dubois’s narrow conception of federal power under the necessary and proper clause. What if a prisoner has a communicable disease? Justice Stevens asked. Can the Bureau of Prisons keep him behind bars beyond his prison term to protect the community?

Justice Stephen Breyer asked whether the federal government had the power to set up a series of mental hospitals across the country to facilitate the civil commitment of individuals threatening suicide or murder.

“I don’t think the federal government has that power,” Dubois answered.

Why? Breyer asked. “Where in the Constitution is it prohibited?”

“Try the 10th Amendment,” Scalia interjected. The 10th Amendment reserves to the states or the people powers not delegated to the federal government in the Constitution.

The case is US v. Comstock. A decision is expected by late June.

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