Federal Judiciary

Justice Kennedy concurred in the judgment and wrote separately for two purposes: 1) to withhold assent from certain statements and propositions of the Court?s opinion; 2) to caution that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances.

Justice Alito likewise concurred in the judgment. He was concerned about the breadth of the Court?s language in the opinion and the ambiguity of the standard that the Court applied. He was, however, persuaded, on narrow grounds, that the statute is "necessary and proper" for Congress to enact.

Justice Thomas, with whom Justice Scalia joined (except for one part of the opinion), dissented.

He concluded that the Necessary and Proper Clause empowers Congress to enact only those laws that carry into execution at least one of the federal powers enumerated in the Constitution. He found that § 4248 executes no enumerated power. He pointed out that the Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted. The Clause requires a showing that every federal statute carries into execution at least one of the federal government?s enumerated powers.

He also noted that the statute?s definition of "sexually dangerous person" has no element relating to the subject?s offense. It does not require federal courts to find any connection between the reasons supporting civil commitment and the enumerated power with which that person?s criminal conduct interfered. So § 4248 allows a court to civilly commit a person without finding that he/she was ever charged with or convicted of a federal crime involving sexual violence. The possibility is not hypothetical. The government conceded at oral argument that almost 20% of the individuals against whom § 4248 proceedings have been brought fit this description.

The dissent also pointed out that the statute the Court upheld in Greenwood v. United States, 350 U. S. 366 (1956), is in contrast. That statute authorized the federal government to exercise civil custody over federal defendants declared mentally unfit to stand trial only until the accused was found mentally competent to stand trial or until the pending charges against them were disposed of according to law. That statute?s end reasonably could be interpreted as preserving the government?s power to enforce a criminal law against a defendant. Section 4248, in contrast, authorizes federal detention of a person even after the government loses the authority to prosecute him/her federally.