Sunday, May 23, 2010

Sexual Predators, Whigs, The Constitution, & Health Care Reform

The Supreme Court

Once upon a time in a burgeoning new city on the banks of the Potomac River reigned the short lived administration of President William Henry Harrison. Harrison would be pleased today, all the long dead Whigs rest easy today, because the United States Supreme Court has affirmed the broad expanse of the Congress in enacting laws which are "Necessary and Proper" (U.S. Constitution Article I. §8, Clause 18. The Whigs wanted broad legislative control of the federal government as opposed to strong executive powers prevailing in the affairs of state.

The case is called United States v. Comstock, et al, and was handed down May 17, 2010. It is a case asking if the Congress exceeded its authority when it said that the government may hold mentally ill, sexually dangerous federal prisoners beyond the dates those convicts would otherwise have been released. The convicts are subjected to civil commitments pursuant to 18 U.S.C. §4248

Civil Libertarians may be aghast at this decision. I am not. Folks who go out and terrorize women and children, place whole communities on edge, steal the flower of innocent youth, often leaving dead, and always leaving wrecked lives in the wake of their conduct are sick persons. Society does not need to tolerate their illness.

Due Process of Law is not violated in these cases. Each person subjected to civil commitment under the Adam Walsh Act, 18 U.S.C. §4248 gets a hearing, is provided counsel if he or she is indigent, is allowed to raise a defense. The hearings are not sham pretenses of the law, these are held in federal courts. Due Process is satisfied. Well, that's my opinion as the Supreme Court did not reach these issues in this case.

At first blush America's new political movement, the Tea Party folks, might think that this is a well decided case, which it is. Hold your Constant Comment, Nellie. You might want to actually read a case before you get all giddy with glee at the result!

The first thing about which to take notice is the level of scrutiny the courts will apply to cases of this sort. As a rule of thumb the higher the level of scrutiny the courts employ then it is more likely the complaining party will win. The converse is likewise true, the lower the level of scrutiny the courts employ then the less likely the complaining party will win. As the level of scrutiny rises the government is required to more narrowly tailor its actions to achieve the desired goal.

This case does not apply a high level of scrutiny test. It applies a low level of scrutiny called the "means-ends" test. The Court, relying on precedent said:
The Constitution “addresse[s]” the “choice of means” “primarily . . . to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Burroughs v. United States, 290 U. S. 534, 547–548

Then the Court marches down the heart of Tea Party thought by explaining this opinion in terms of the Tenth Amendment to the United States Constitution. Since these convicts may also be wanted on State charges, those advocating a Tenth Amendment violation say the feds must release the convict and let the State take over.

The heart of the Court's opinion lays at the intersection of the Necessary & Proper Clause and the Tenth Amendment. The Court rules that: That Amendment does not 'reserve to the States' those powers that are 'delegated to the United States by the Constitution,' including the powers delegated by the Necessary and Proper Clause."

In the exacting atmosphere of Supreme Court advocacy the advocates of the Tenth Amendment argued that even if the Necessary & Proper clause applied, its reach could not extend so far as does 18 U.S.C. §4248, Don't get lippy with the Lipton, Nellie, this may not be as much fun as you think!

The Court rejected the argument that the Congress must remain no more than one step removed from a specifically enumerated power when legislating pursuant to the Necessary & Proper Clause. The Court relied on well established law, citing McCulloch v. Maryland, 4 Wheat. 316 ,416, 481 (1819). For a sense of perspective, James Monroe was the President when McCulloch was decided.

The Respondents, arguing a State Sovereignty theory, claimed that the Congress could not invade the province of state sovereignty in an area typically left to State control. They got shut down but good.

The Court said that the Tenth "Amendment does not “reserve to the States” those powers that are “delegated to the United States by the Constitution,” including the powers delegated by the Necessary and Proper Clause. See, e.g., New York v. United States, 505 U. S. 144, 159. And §4248 does not “invade” state sovereignty, but rather requires accommodation of state interests."

Whoa, Nellie! Put your tea cozy down because the door to the Tenth Amendment just started closing. While the Tea Party folk may not like what the Court said, the spirits of Whigs rest easy with this decision.

In fact the Tea Party folk were left with only one peg upon which to hang their hopes. The Court expressly refused to make a grant of "police powers" to the federal government. The Wikipedia explanation of police powers will suffice. "Police power is the capacity of a state to regulate behaviors and enforce order within its territory, often framed in terms of general welfare, morals, health, and safety."

And why is that important you ask? Because Republicans fueled with Tea Party zeal and corporate cash are planning a full frontal assault on the recently passed and enacted Health Care Reform legislation, the Health Care and Education Affordability Reconciliation Act of 2010.

You see if Health Care Reform was passed pursuant to the Necessary & Proper Clause, and if it only requires an accommodation of sovereign state interests, then it may be crucial if the Court sees Health Care as a primary function of the sovereign States. Otherwise put, was Health Care Reform an invasion of authority delegated to the States by the Tenth Amendment?  My guess is that the Court won't reach this point because the primary issue will rest on taxation.

Justice Souter
The opinion in United States v. Comstock, et al, was written by Justice Souter, and was joined by Chief Justice Roberts, and Justices Stevens, Ginsburg, and Sotomayor. Justices Kennedy and Alito filed opinions concurring in the judgment. Justice Thomas filed a dissenting opinion in which Justice Scalia partially joined.

For those who are counting, on the question of the authority of the federal government to enact legislation under the Necessary & Proper Clause despite strong Tenth Amendment arguments, the vote is 7 to 2.  What do you want to bet that Elena Kagan, Obama's choice to replace Justice Stevens on the high bench will get quizzed on the nexus of Necessary & Proper and the Tenth Amendment?

Elena Kagan

That looks very good for Health Care Reform.

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