Clarence Thomas

“ The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce [p164] Clause—the enumerated power this Court has interpreted most expansively, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) —can justify federal civil detention of sex offenders. Under the Court's precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. ”

“ Section 4248 establishes a federal civil-commitment regime for certain persons in the custody of the Federal Bureau of Prisons (BOP) . [3] If the Attorney General demonstrates to a federal court by clear and convincing evidence that a person subject to the statute is "sexually dangerous," [4] a court may order the person committed until he is no longer a risk "to others," even if that does not occur until after his federal criminal sentence has expired or the statute of limitations on the federal charge against him has run. ”

“ The Court holds today that Congress has power under the Necessary and Proper Clause to enact a law authorizing the Federal Government to civilly commit "sexually dangerous person [s] " beyond the date it lawfully could hold them on a charge or conviction for a federal crime. ”

“ Nevertheless, 29 States appear as amici and argue that § 4248 is constitutional. They tell us that they do not object to Congress retaining custody of "sexually dangerous persons" after their criminal sentences expire because the cost of detaining such persons is "expensive"—approximately $64,000 per year—and these States would rather the Federal Government bear this expense. Brief for Kansas et al. 2; ibid. (" [S] ex offender civil commitment programs are expensive to operate") ”

“ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 274–275, and n. 24 (1993) .
↑ The statute authorizes the Attorney General to petition a federal court to order the commitment of a person in BOP custody (1) who has been convicted of a federal crime and is serving a federal prison sentence therefor, (2) who has been found mentally incompetent to stand trial, or (3) "against whom all federal criminal charges have been dismissed solely for reasons relating to [his] mental condition." ”

“ B The remaining "considerations" in the Court's five-part inquiry do not alter this conclusion.
1 First, in a final attempt to analogize § 4248 to laws that authorize the Federal Government to provide care and treatment to prisoners while they await trial or serve a criminal sentence, the Court cites the Second Restatement of Torts for the proposition that the Federal Government has a "custodial interest" in its prisoners, ante, at 149, and, thus, a broad "constitutional power to act in order to protect nearby [p173] (and other) communities" from the dangers they may pose, [11] ante, at 142. ”

“ Federal laws that criminalize conduct that interferes with enumerated powers, establish prisons for those who engage in that conduct, and set rules for the care and treatment of prisoners awaiting trial or serving a criminal sentence satisfy this test because each helps to "carr [y] into Execution" the enumerated powers that justify a criminal defendant's arrest or conviction. For example, Congress' enumerated power " [t] o establish Post Offices and post Roads," Art. ”

“ James Madison echoed this view, stating that "the sweeping clause . . . only extend [s] to the enumerated powers." 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 455 (1836) (hereinafter Elliot) . Statements by delegates to the state ratification conventions indicate that this understanding was widely held by the founding generation. ”

“ It further defines "sexually dangerous to others" to mean a person who "suffers from a serious mental illness" such that he would "have serious difficulty in refraining from sexually violent conduct or child molestation if released." ”

“ Supp.) ; Neb. Rev. Stat. § 29–2923 et seq. (2008) ; N.H. Rev. Stat. Ann. § 135–E:1 et seq. (West Cum. Supp. 2009) ; N.J. Stat. Ann. § 30:4–82.4 et seq. (West 2008) ; N.M. Stat. Ann. § 43–1–1 et seq. (2000 and Cum. Supp. 2009) ”