The Regrettable Clause: United States v. Comstock and the Powers of Congress

Authors

H. Jefferson Powell, Duke Law SchoolFollow

Document Type

Article

Publication Date

2011

Keywords

congressional power, Necessary and Proper Clause, Commerce Clause

Abstract

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a particular act of Congress, 18 U.S.C. § 4248, a legitimate exercise of implied congressional power under the Necessary and Proper Clause? The author then present what he calls the "obvious answer" to the question presented-§ 4248 is within Congress's powers-and the equally obvious rationale-the provision addresses the social problem posed by the potential release of sexually dangerous prisoners from federal custody on the basis of Congress's judgment that doing so is an appropriate part of the overall federal system of incarceration, which itself is a necessary concomitant to the existence of federal criminal laws. Powell argues that his rationale is correct in principle and as an application of McCulloch v. Maryland, the Court's iconic Necessary and Proper Clause decision.4 In Part III, the author discusses the four opinions filed in Comstock, none of which was willing to adopt his "obvious" rationale although seven Justices agreed with the outcome and all four opinions claimed to follow McCulloch. All four opinions are plagued with problems, and despite the disagreements between them, the opinions adopt unclear or unnecessarily complex approaches to addressing the issue before the Court. Part IV presents an interpretation of the Comstock opinions as presenting, most clearly in Justice Thomas's dissent but obliquely in the other opinions, a Jeffersonian reading of McCulloch.

Citation

H. Jefferson Powell, The Regrettable Clause: United States v. Comstock and the Powers of Congress, 48 San Diego Law Review 713-772 (2011)