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May 17, 2010

Supreme Court Decisions

While everyone is focusing on the Kagan nomination, the court continues to wind down its current term. As always at the end of the court's year there are a number of highly anticipated decisions in controversial cases.

In Graham v. Florida the court ruled 5-4 that sentencing minors to life in prison without the chance of parole for non-capital crimes is a violation of the 8th Amendments prohibition on "cruel and unusual punishment".

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

"The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law," Justice Anthony Kennedy wrote in his majority opinion. "This the Eighth Amendment does not permit."

You just knew Kennedy would write this opinion.

On a human level I certainly agree with him and the decision. On a legal level I'm not sure how you get that a prohibition on "cruel and unusual punishment" requires the state to allow someone to petition for parole. That's a moral/policy judgment best left to legislatures. However after Kennedy v. Louisiana, it's pretty clear that for the moment the 8th Amendment says whatever Anthony Kennedy says it means.

In another highly anticipated case, United States v. Comstock, the court ruled 7-2 (Thomas and Scalia dissented) that the federal government can institute a preventative detention regime to hold those found to be sexually dangerous past their scheduled release date.

The decision appears to turn on the meaning of our old friend 'the necessary and proper' clause.

Not surprisingly Justice Breyer, writing for the majority, argues for an ad hoc and expansive grant of federal power.

We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in lightof the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considera-tions lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority thatpermits Congress to create federal criminal laws, to pun-ish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the securityof those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

Justice Thomas argues in his dissent (which Scalia joins for the most part) that the Constitution does not authorize any such laws (pdf).


Nevertheless, 29 States appear as amici and argue that §4248 is constitutional. They tell us that they do not object to Congress retaining custody of “sexually danger-ous persons” after their criminal sentences expire becausethe cost of detaining such persons is “expensive”—approximately $64,000 per year—and these States would rather the Federal Government bear this expense. Brief for Kansas et al. 2; ibid. (“[S]ex offender civil commitment programs are expensive to operate”); id., at 4 (“these pro-grams are expensive”); id., at 8 (“[T]here are very practical reasons to prefer a system that includes a federal sex offender civil commitment program . . . . One such reason is the significant cost”).

Congress’ power, however, is fixed by the Constitution;it does not expand merely to suit the States’ policy prefer-ences, or to allow State officials to avoid difficult choices regarding the allocation of state funds. By assigning the Federal Government power over “certain enumeratedobjects only,” the Constitution “leaves to the several Statesa residuary and inviolable sovereignty over all other ob-jects.” The Federalist No. 39, at 285 (J. Madison). The purpose of this design is to preserve the “balance of power between the States and the Federal Government . . . [that] protect[s] our fundamental liberties.” Garcia v. San Anto-nio Metropolitan Transit Authority, 469 U. S. 528, 572 (1985) (Powell, J., dissenting); New York v. United States, 505 U. S., at 181. It is the States’ duty to act as the “im-mediate and visible guardian” of those liberties because federal powers extend no further than those enumerated in the Constitution. The Federalist No. 17, at 169 (A. Hamilton). The Constitution gives States no more powerto decline this responsibility than it gives them to infringe upon those liberties in the first instance. FTC v. Ticor Title Ins. Co., 504 U. S. 621, 636 (1992) (“Federalism serves to assign political responsibility, not to obscure it”).

Absent congressional action that is in accordance with,or necessary and proper to, an enumerated power, theduty to protect citizens from violent crime, including actsof sexual violence, belongs solely to the States. Morrison, 529 U. S., at 618 (“[W]e can think of no better example ofthe police power, which the Founders denied the NationalGovernment and reposed in the States, than the suppres-sion of violent crime”); see Cohens v. Virginia, 6 Wheat. 264, 426 (1821) (Marshall, C. J.) (stating that Congresshas “no general right to punish murder committed within any of the States”).

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” Printz, supra, at 923. Regrettably, today’s opinion breathes new life into that Clause, and—the Court’s protestations to the contrarynotwithstanding, see ante, at 18—comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected,” Lopez, 514 U. S., at 584 (THOMAS, J., concur-ring) (citing Gregory, supra, at 457; Wirtz, 392 U. S., at 196; Jones & Laughlin Steel Corp., 301 U. S., at 37). In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grantof authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.” McCulloch, supra, at 423.

I haven't read the decisions all the way through (and I'm not a lawyer) but it's a little unnerving that Roberts and Alito joined in a decision that expands an unenumerated power, especially looking forward to a fight over the ObamaCare mandate.

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posted by DrewM. at 11:23 AM

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