This coming Monday morning (Jan, 12, 2010), the Supreme Court is scheduled to hear oral arguments in United States v. Comstock (08-1224), in which the US sought cert to answer this question:
Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
Perhaps not coincidentally, the First Circuit has issued an opinion today in US v. Volungus, No. 09-1596 (1st Cir. Jan. 10, 2010) (available here), which seeks to answer this question. Here is how the Volungus opinion starts:
We are called upon to determine the constitutionality of a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), Pub. L. No. 109-248, 120 Stat. 587 (2006), a recently enacted federal law that provides in pertinent part for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of that person's release upon service of his full sentence. Id. § 320, 120 Stat. at 619-22, codified at 18 U.S.C. §§ 4241, 4247-4248 (which we shall call, as a shorthand, section 4248). The district court concluded that Congress lacked constitutional authority to enact this civil commitment provision and, therefore, dismissed the government's petition to enforce it against the respondent, John Charles Volungus. United States v. Volungus, 599 F. Supp. 2d 68, 77-78, 80 (D. Mass. 2009). The government appeals from that ruling.
After careful consideration, we hold that the civil commitment provision comes within the legitimate scope of congressional power conferred by the Necessary and Proper Clause of the federal Constitution. Consequently, we reverse the decision below and remand for further proceedings.
What the First Circuit Court did here was "pass the ball". They lacked the courage to make a ruling as the U.S. Supreme Court case is approaching so they "passed" on it because it would make them look bad should SCOTUS rule it unconstitutional. It is a shame we have so few Justices of courage in this nation.
