U.S. Supreme Court

Sex-Offender Case Is Test of Necessary and Proper Clause

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Justice Antonin Scalia endorsed a limited view of the federal government’s constitutional powers in oral arguments yesterday considering whether Congress had the authority to authorize commitment of “sexually dangerous” persons after completing their sentences.

But other justices appeared ready to agree with Solicitor General Elena Kagan that Congress had the authority, the Wall Street Journal reports.

The case is an important test of the scope of the necessary and proper clause, the Christian Science Monitor reports. The clause says Congress has the power “to make all laws which shall be necessary and proper for carrying into execution … powers vested by this Constitution in the government of the United States.”

Scalia explained his interpretation during oral arguments, the New York Times reports. “Necessary and proper doesn’t mean it is necessary and proper for the good of society,” Scalia said. “It means it is necessary and proper for the execution of another power that the federal government is given by the Constitution.”

At one point, Scalia complained, “This is a recipe for the federal government taking over everything,” according to the Christian Science Monitor and USA Today. He said the states were up to the task of confining sexually dangerous persons after their release from federal prison.

The New York Times emphasizes that the court is not considering whether the confinement laws violate due process; the state laws are not at issue.

The case is United States v. Comstock.

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