SCOTUS ruled today that Congress has the power to pass a law that keeps “sexually dangerous” inmates in prison after their sentences have expired. Solicitor General Elena Kagan, as befits her stance of never seeing a law that expands federal power she didn’t like, argued the case in front of the Supremes.
Kagan in January compared the government’s power to commit sexual predators to its power to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.
Thomas and Scalia dissented from the 7-2 ruling (are they the new liberal wing?), with Thomas stating
Nothing in the Constitution ”expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power.”
Thomas is arguing for a strict interpretation of Article I, Section 8 of the Constitution, which grants specific enumerated powers to the Congress, but also has the “necessary and proper clause,” which allows Congress
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
I think there are two things at issue here, clearly: the power of the necessary and proper clause, and the dangerous precedent set by simply keeping people in prison after their terms have been fulfilled.
The Necessary and Proper clause was a bone of contention for the anti-Federalists (opponents of the Constitution) during the ratification debates in 1788-89. Seeing it as a way for an elite at the national level to expunge laws passed at the local or state level, Constitutional opponents argued it was an anti-democratic measure. A broad interpretation, however, has been the norm since 1789, allowing Congress to gradually expand the powers of the federal government. I think there is a case to be made from the radical grassroots left that the necessary and proper clause should be interpreted narrowly, but I dislike the originalist position taken by Thomas and Scalia on this issue.
The larger issue here, methinks, is the question of indefinite detention. Prisoners may indeed be dangerous, but simply ignoring the rule of law in this case by extending terms indefinitely seems like it is ignoring the law to extend federal powers. Either the sentences attached to convictions mean something or they do not; in this case, if people are “dangerous” then simply convict them for life without chance of parole.
American society seems prone to periods where various problems are treated as contagious diseases: mental illness, drugs, and now sexual convicts. In fact, as Foucault noted, our society is permeated with these things, especially sexuality, and yet we find reasons and ways to fit them into a disease model and then claim they are extreme dangers to everyone, leading to massive erosion of civil liberties in their wake. Fear of mental illness led to indefinite and involuntary detention, fear of drugs led to the Drug War and huge swaths of people jailed for nonviolent offenses, and now the “war” on “sexual predators” could be leading to a further erosion of our right to be convicted by a jury of our peers and sentenced for an agreed-upon time. While there are certainly sexual predators out there, it is suspicious that instead of changing the conviction times in the law, the Obama administration and the Supremes have decided on indefinite detention instead.