What Comstock Means for the Fall of Federalism

Monday, the Supreme Court handed down a decision in United States v. Comstock that has the potential to be a precedent for an overly expanded view of the Necessary and Proper Clause. Comstock is about civilly committing sex offenders after their sentence for their crimes is served. In this decision, the Court determined that it is within the Necessary and Proper Clause that forcing sex offenders to basically serve more time than sentenced for their crimes is necessary.

It is cases like these that are sometimes difficult to predict. You have to wonder ahead of time if the Justices will take an objective point of view and rule only on the Constitutionality of a given law, or will they insert their subjective emotions and rule based on emotion and perception.

This decision opens up a Pandora's Box to allow the federal government to keep a person in custody for the mere reason that an offender (of any kind, not just a sex offender) is likely to commit the same offense later. This is akin to the civil commitment of someone who is found not guilt of a crime due to insanity until that person is no longer considered dangerous.

This has ramifications that reach out beyond just crimes and punishments. There is also the matter of Obamacare (among other things). In challenges to the new healthcare law, Congress has been asserting that the individual mandate to purchase insurance is "necessary and proper." It is not difficult to find the reason for necessity (Congress must compel citizens to either enroll in the insurance pool or pay a fine in order to pay for the insurance pool); the difficult part lies in whether the mandate is proper, and Comstock provides an avenue that expands what the Court sees as being a proper means (i.e. the vastly mis-expanded Commerce Clause).