Stephen Breyer

“ Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role." New York, 505 U.S., at 157.
The Framers demonstrated considerable foresight in drafting a Constitution capable of such resilience through time. As Chief Justice Marshall observed nearly 200 years ago, the Necessary and Proper Clause is part of "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." ”

“ Confinement in the federal facility will last until either (1) the person's mental condition improves to the point where he is no longer dangerous (with or without appropriate ongoing treatment) , in which case he will be released; or (2) a State assumes responsibility for his custody, care, and treatment, in which case he will be transferred to the custody of that State. §§ 4248 (d) (1) – (2) . The statute establishes a system for ongoing psychiatric and judicial review of the individual's case, including judicial hearings at the request of the confined person at 6-month intervals. ”

“ And, as the dissent agrees, that enumerated power is "the enumerated power that justifies the defendant's statute of conviction," post, at 174, n. 12. Neither we nor the dissent can point to a single specific enumerated power "that justif [ies] a criminal defendant's arrest or conviction," post, at 169, in all cases because Congress relies on different enumerated powers (often, but not exclusively, its Commerce Clause [p148] power) to enact its various federal criminal statutes, see supra, at 136. But every such statute must itself be legitimately predicated on an enumerated power. ”

“ S.A., 129 F.3d 995, 999 (CA8 1997) (" [Congress enacted § 4246] to avert the public danger likely to ensue from the release of mentally ill and dangerous detainees") . If a federal prisoner is infected with a communicable disease that threatens others, surely it would be "necessary and proper" for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others (even if not threatening an interstate epidemic, cf. Art. I, § 8, cl. 3) . ”

“ Neither Congress' power to criminalize conduct, nor its power to imprison individuals who engage in that conduct, nor its power to enact laws governing prisons and prisoners, is explicitly mentioned in the Constitution. ”

“ And if confinement of such an individual is a "necessary and proper" thing to do, then how could it not [p143] be similarly "necessary and proper" to confine an individual whose mental illness threatens others to the same degree?
Moreover, § 4248 is "reasonably adapted," Darby, 312 U.S., at 121, to Congress' power to act as a responsible federal custodian (a power that rests, in turn, upon federal criminal statutes that legitimately seek to implement constitutionally enumerated authority, see supra, at 135–136) . ”

“ With these modifications, the statutes continue to authorize the civil commitment of individuals who are both mentally ill and dangerous, once they have been charged with, or convicted of, a federal crime. ”

“ See Brief for Respondents 21–22; Tr. of Oral Arg. 27–28. But this argument is irreconcilable with our precedents. Again, take Greenwood as an example. In that case we upheld the (likely indefinite) civil commitment of a mentally incompetent federal defendant who was accused of robbing a United States Post Office. 350 U.S., at 369, 375. The underlying enumerated Article I power was the power to "Establish Post Offices and post Roads." Art. I, § 8, cl. 7. But, as Chief Justice Marshall recognized in McCulloch,
"the power 'to establish post offices and post roads' . ”

“ With respect to each of them, the Government claimed that the respondent was about to be released from federal prison, that he had engaged in sexually violent conduct or child molestation in the past, and that he suffered from a mental illness that made him sexually dangerous to [p132] others. App. ”