Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.