A group of dangerous sex criminals who took their case before the Supreme Court on Tuesday had one clear champion: Justice Antonin Scalia.
A staunch conservative, he has not developed new sympathy for criminals. Instead, the issue before the court was whether the Constitution gave the federal government the power to lock up offenders after they had served their prison terms.
Scalia said protecting the public against sex criminals was a matter for the states, their police and their prisons. “There is no constitutional power on the part of the federal government to protect society against sexual predators,” he told U.S. Solicitor Gen. Elena Kagan.
Kagan, the Obama administration’s advocate, was defending a federal law that permits prison authorities to confine “sexually dangerous” people whose prison terms have run out. She won the apparent backing of liberal Justices Stephen G. Breyer and Ruth Bader Ginsburg.
Kagan said the Constitution gives the federal government specific powers, such as regulating interstate commerce, and all other powers “necessary and proper” to carry out those laws. Because Congress can punish interstate crimes such as putting child pornography on the Internet, federal authorities can also hold onto these criminals indefinitely if they are believed to be dangerous.
“What the federal government is doing here is essentially . . . making sure these people don’t fall between the cracks,” she said.
But Scalia interjected: “This is a recipe for the federal government taking over everything.”
Though Tuesday’s argument involved prisons and sex criminals, the broader reach of federal power will be tested on two fronts in the years ahead. If the Obama administration goes ahead with its plan to transfer some of the detainees held at Guantanamo Bay, Cuba, to a federal prison in Thomson, Ill., it will face a suit on constitutional grounds. Civil libertarians say the federal government does not have the power to hold prisoners indefinitely without criminal charges.
The pending healthcare bill is expected to trigger a different challenge. The bill requires nearly all people to buy insurance or to pay either a fine or a tax. Conservatives and libertarians argue the Constitution does not give the federal government the power to force individuals to buy a product, and they plan to sue in court if the bill passes.
The case heard Tuesday, U.S. vs. Comstock, will decide the fate of part of the Adam Walsh Child Protection and Safety Act of 2006, in which Congress authorized the civil commitment of “sexually dangerous” federal prisoners who were due for release. Kagan said 103 prisoners are being held under the law.
At least 20 states have similar laws, and the Supreme Court upheld the laws in 1997.
But last year, the federal measure was struck down on the grounds that the Constitution does not give such broad powers to the federal government. Five prisoners in North Carolina sued when they were confined for treatment after their prison terms had ended.
Alan DuBois, a public defender from Raleigh, N.C., argued that a federal inmate who had served his prison term deserved to go free.
But Breyer and others raised the analogy of prisoners with a communicable disease like tuberculosis. Certainly, federal authorities could detain such a person to protect the public from the spread of the disease, he said.
By the end of the hour, most of the justices sounded as though they were leaning in favor of upholding the law.