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United States v. Comstock: Supreme Court
Review of Civil Commitment Under the
Adam Walsh Act
Charles Doyle
Senior Specialist in American Public Law
June 22, 2010
Congressional Research Service
7-5700
www.crs.gov
R40958
CRS Report for Congress
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repared for Members and Committees of Congress
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United States v. Comstock: Supreme Court Review of Civil Commitment
Summary
The Adam Walsh Act created 18 U.S.C. 4248 which authorizes civil commitment as sexually
dangerous of those otherwise about to be released from federal custody. In United States v.
Comstock, the United States Supreme Court rejected a suggestion that enactment of Section 4248
lay outside the scope of Congress’s legislative powers. It did so without considering whether the
section might be vulnerable to constitutional attack on other grounds.
The Constitution reserves to the states and the people those powers that it does not vest in the
federal government. It vests in Congress the authority to enact laws necessary and proper to
carrying into execution the powers it bestows on the federal government. The Justice Department
contended that Congress has authority under the Constitution to enact those criminal laws which
it finds necessary and proper to carry into execution various of its other powers such as the
regulation of interstate and foreign commerce and legislation for the District of Columbia and
federal enclaves. It argued further that incident to the power to enact criminal laws is the power to
enact laws for the operation of a federal penal system and for responsibility for those assigned to
that system, even after the expiration of the initial authority to imprison them.
Comstock argued that Congress has no such incidental power. He contended that Congress’s
constitutional authority to enact legislation with respect to those imprisoned for violation of
federal criminal laws ends with their terms of imprisonment. Subject to certain conditions that
might lead to a different result under other circumstances, the Court agreed with the Justice
Department.
Had Comstock prevailed, there might have been some question of the continued validity of
federal statutes which permit civil commitment on other grounds of federal prisoners scheduled
for release or of those statutes which permit imposition of a term of supervised release to be
served after federal inmates are released from prison.
As is, the opinion appears to support a more expansive view of Congress’s legislative authority
than was previously the case—sometimes, the Necessary and Proper Clause will support
legislation to help carry into execution a power which itself is no more than necessary and proper.
The extent to which the Court’s considerations will be found to limit the reach of the Clause in
the future remains to be seen.
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United States v. Comstock: Supreme Court Review of Civil Commitment
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 1
Legislative Authority................................................................................................................... 2
United States v. Comstock ........................................................................................................... 5
Contacts
Author Contact Information ........................................................................................................ 7
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United States v. Comstock: Supreme Court Review of Civil Commitment
Introduction
The United States Supreme Court in United States v. Comstock held that Congress possessed the
legislative authority under the Constitution’s necessary and proper clause1 to enact 18 U.S.C.
4248.2 Section 4248, enacted as part of the Adam Walsh Act, authorizes the civil commitment of
sexually dangerous individuals whose release from federal custody is pending. The Court
assumed, without deciding, “that other provisions of the Constitution—such as the Due Process
Clause—do not prohibit civil commitment in these circumstances.”3 The Court’s “stepping stone”
analysis of Congress’s legislative power under the Necessary and Proper Clause4 appears to
further discourage an expansive reading of the Court’s Lopez and Morrison Commerce Clause
limiting decisions.5
Background
Among the provisions of the Adam Walsh Act lies a section which purports to permit the civil
commitment of “sexually dangerous” individuals.6 The section, 18 U.S.C. 4248, applies to three
classes of sexually dangerous persons: those in the custody of the Bureau of Prisons; those in the
custody of the Attorney General and found incompetent to stand trial on criminal charges; and
those acquitted or against whom criminal charges were otherwise dismissed based on their mental
condition. If it determines by clear and convincing evidence that such an individual, referred by
the Attorney General or Bureau of Prisons, is in fact a sexually dangerous person, a federal court
may release the person to the Attorney General to be transferred to state authorities for care and
treatment.7 The court may subsequently order the individual’s conditional release upon
certification of the facility in which he is being treated.8
Graydon Comstock pled guilty to receipt of child pornography and was sentenced to
imprisonment for three years and a month.9 His release upon service of his sentence, like that of
more than 60 others in the Eastern District of North Carolina, was stayed pending proceedings
under Section 4248.10 The District Court granted his motion to dismiss the petition for civil
1 U.S.Const. Art. I, §8, cl. 18 (“The Congress shall have Power ...To make all Laws which shall be necessary and
proper for carrying to Execution the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof”); see also, U.S.Const. Amend. X (“The
powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people”).
2 United States v. Comstock, 78 U.S.L.W. 4410, 4411 (May 17, 2010).
3 Id. at 4412.
4 “[T]hese considerations lead us to conclude that the statute is a ‘necessary and proper’ means of exercising the federal
authority that permits Congress to create federal criminal laws [to carry into execution its enumerated powers], to
punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security
of those who are not imprisoned but who may be affected by the federal imprisonment of others,” Id. at 4416-417.
5 United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) are discussed below.
6 P.L. 109-248, § 302(4), 120 Stat. 620 (2006).
7 18 U.S.C. 4248(a), (d).
8 18 U.S.C. 4248(e).
9 United States v. Comstock, 507 F.Supp.2d 522, 526 (E.D.N.C. 2007).
10 United States v. Comstock, 551 F.3d at 277 n.3.
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commitment as a sexually dangerous person on the grounds that the statute constituted a violation
of due process and exceeded Congress’s legislative authority.11 The Fourth Circuit Court of
Appeals affirmed the district court’s ruling on the powers of Congress and consequently found it
unnecessary to consider the due process issue.12
On June 22, 2009, the Supreme Court granted certiorari to consider: “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.”13 At the time, one other
circuit had rejected the view of the Fourth Circuit in Comstock 14 and the district courts that
addressed the issue were divided.15
Legislative Authority
The Constitution vests federal legislative powers in Congress.16 It enumerates the areas of federal
legislative power throughout, but particularly in Article I, section 8. Those legislative powers
which it does not mention are reserved to the states and the people.17 The power to regulate
commerce among the states and to do so through the enactment of necessary and proper
legislation are perhaps the most commonly exercised of the enumerated powers.18 Congress’s
power under the Commerce Clause extends to the channels of interstate commerce; to the
instrumentalities, individuals, entities, and goods in interstate commerce; and to the activities that
substantially affect interstate commerce.19
The power is broad but not boundless. Twice in recent memory, the Supreme Court has
questioned assertions of the power. In United States v. Lopez, it found beyond the pale a federal
statute which purported to outlaw possession of a firearm within a school zone.20 The
Government argued that the misconduct had the potential for violence and for a deteriorated
11 United States v. Comstock, 507 F.Supp.2d at 559-60. The petitioners in Comstock included four other individuals in
federal custody; two (Thomas Matherly and Markis Reveland) following conviction for possession of child
pornography; a third (Marvin Virgil) following conviction for sexual abuse of minor; and a fourth (Shane Catron)
following a finding that he was incompetent to stand trial for aggravated sexual abuse of a child, Id. at 526 n.2.
12 United States v. Comstock, 551 F.3d at 276.
13 United States v. Comstock, 129 U.S. 2828 (2009).
14 United States v. Tom, 565 F.3d 497 (8th Cir. 2009).
15 District courts holding that section 4248 exceeds the Congress’ legislative authority include United States v.
Wilkinson, 626 F.Supp.2d 184, 194 (D.Mass. 2009); United States v. Volungus, 599 F.Supp.2d 68, 77-8 (D.Mass.
2009); courts finding the section within its authority include United States v. Abregana, 574 F.Supp.2d 1123, 1133-134
(D.Haw. 2008); United States v. Shields, 522 F.Supp.2d 317, 328 (D.Mass. 2007); United States v. Carta, 503
F.Supp.2d 405, 408-9 (D.Mass. 2007).
16 U.S. Const. Art. I, §1.
17 U.S. Const. Amends. X, IX.
18 U.S. Const. Art. I, §8, cls. 3, 18.
19 Gonzales v. Raich, 545 U.S. 1, 16-7 (2005).
20 514 U.S. 549 (1995) (Chief Justice Rehnquist wrote the opinion for the Court in which Justices O’Connor, Scalia,
Kennedy, and Thomas joined; Justice Breyer wrote a dissenting opinion in which Justices Stevens, Souter, and
Ginsburg joined).
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learning environment, both of which it contended would have a substantially adverse affect on
interstate commerce.21 The Court reasoned that the power would be boundless, if its reach were
so elastic as to extend to such essentially local, noncommercial activity.22
The Court reached a similar conclusion in United States v. Morrison.23 It felt that the reach of the
Commerce Clause would be boundless, if the proscribed misconduct—violence driven by an
animus against women—lay within its grasp. To conclude otherwise, “would permit Congress to
‘regulate not only all violent crime, but all activities that might lead to violent crime, regardless of
how tenuously they relate to interstate commerce.’”24
The Court, however, rejected an invitation to read the Commerce Clause still more narrowly in
Gonzales v. Raich, where it was suggested that a statute, which prohibited the cultivation or
possession of marijuana, exceeded Congress’s Commerce Clause power, when applied to the
purely within state cultivation and possession for medicinal purposes in compliance with state
law.25 The Court resolved the case under its Commerce Clause precedents which read the Clause
to encompass regulation of interstate-impacting intrastate activity. When it framed the issue,
however, it eluded the role of the Necessary and Proper Clause: “The question presented in this
case is whether the power vested in Congress by Article I, §8, of the Constitution, ‘[t]o make all
Laws which shall be necessary and proper for carrying into Execution’ its authority to ‘regulate
Commerce with Foreign Nations, and among the several States.’”26
In the lower courts, the Justice Department had relied heavily on Congress’s power under the
Necessary and Proper Clause in its defense of Section 4248.27 Legislation enacted in exercise of
authority under the Clause need not be absolutely necessary to carry into execution an
enumerated power.28 It is enough that the legislation be “conductive” and “plainly adapted” to
carrying to execution the enumerated power.29 For the word “necessary,” “frequently imports no
more than that one thing is convenient, or useful ... to another. To employ the means necessary to
an end, is generally understood as employing any means calculated to produce the end, and not as
being confined to those single means, without which the end would be entirely unattainable.”30
21 Id. at 563-64.
22 Id. at 567-68.
23 529 U.S. 598 (2000) (Chief Justice Rehnquist again wrote the opinion for the Court and was again joined by Justices
O’Connor, Scalia, Kennedy, and Thomas, with Justices Stevens, Souter, Ginsburg, and Breyer again in dissent).
24 Id. at 612-13, quoting United States v. Lopez, 514 U.S. at 564.
25 545 U.S. 1, 15 (2005)(Justice Stevens wrote the opinion for the Court, in which Justices Kennedy, Souter, Ginsburg
and Breyer joined; with Justice Scalia concurring in the judgment; and Chief Justice Rehnquist as well as Justices
O’Connor and Thomas in dissent).
26 Id. at 5.
27 “Yet the Government attempts to defend the validity of § 4248 largely by direct reliance on the Necessary and Proper
Clause,” United States v. Comstock, 551 F.3d at 278.
28 Jinks v. Richland County, 538 U.S. 456, 462 (2003), citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 414-15
(1819).
29 Id.
30 McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 413-14; see also Sabri v. United States, 541 U.S. 600, 605 (2004)
(“Congress has authority under the Spending Clause to appropriate federal moneys to promote the general welfare ...
and it has corresponding authority under the Necessary and Proper Clause ... to see to it that taxpayer dollars
appropriated under that power are ... not frittered away in graft.... See generally McCulloch v. Maryland, 4 Wheat. 316
(1819)(establishing review for means-ends rationality under the Necessary and Proper Clause).... McCulloch, supra, at
417 (power to ‘establish post-offices and post-roads’ entails authority to ‘punish those who steal letters’)”).
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A law is “proper” for purposes of the Necessary and Proper Clause when it is not contrary to the
demands, prohibitions, or spirit of the Constitution. For instance, “[w]hen a Law ... for carrying
into Execution [one of the enumerated powers] violates the principle of state sovereignty
reflected in the various constitution provisions ... it is not a Law ... proper for carrying into
Execution [that power].”31
In the past, the Supreme Court had generally construed the Clause with an eye to carrying into
execution one of the other powers granted Congress, the courts, or the executive branch. The
Court had rare occasion to construe the Clause when it was invoked in execution of more than
one such other power. It may have done so in Greenwood v. United States when it upheld the
legislation permitting commitment of those incompetent to stand trial for the federal crimes of
which they were accused.32 Greenwood was not otherwise scheduled for release from federal
custody, but the case turned on the Court’s construction of the Necessary and Proper Clause.33
Implicit in the Justice Department’s argument before the Court was the contention that Section
4248 presents a similar situation, one in which Necessary and Proper Clause authority works to
carry into execution several enumerated powers at once. “Pursuant to its power under the
Necessary and Proper Clause, Congress has carried into execution various of its enumerated
powers –... U.S. Const. Art. I, § 8, Cls. 1, 3, 7, 14, and 17– by enacting criminal statutes.”34
Section 4248, it contended, “is a rational incident to Congress’ Article I powers to enact criminal
laws, provide for the operation of a penal system, and assume for the United States custodial
responsibilities for its prisoners.”35
The Comstock group responded that the Constitution does not permit enactment of legislation
whose sole nexus to an enumerated power is that it is rationally related to an endeavor which is
itself valid only because it is necessary and proper for carry into execution an enumerated power:
“The government characterizes § 4248 as an exercise of Congress’ powers to enact criminal laws
and operate a prison system. Those powers are not enumerated anywhere in the constitution.
Rather, they are justified as necessary and proper means of carrying out specific enumerated
powers.”36 Moreover, the Comstock group contended the distinction is important because after an
individual has served his sentence the connection nexus to an enumerated power no longer exists:
“Once the power to enforce a federal criminal law has been exhausted, further exercises of federal
31 Printz v. United States, 521 U.S. 898, 923-24 (1997)(internal quotation marks and citations omitted; emphasis in the
original).
32 Greenwood v. United States, 350 U.S. 366, 375 (1956).
33 Id.(“We reach then the narrow constitutional issue raised by the order of commitment in the circumstances of this
case. The petitioner came legally into the custody of the United States. The power that put him into such custody-the
power to prosecute for federal offenses-is not exhausted. Its assertion in the form of the pending indictment persists.
The District Court has found that the accused is mentally incompetent to stand trial at the present time and that, if
released, he would probably endanger the officers, property, or other interests of the United States-and these findings
are adequately supported. In these circumstances the District Court has entered an order retaining and restraining
petitioner, while in his present condition, with habeas corpus always available when circumstances warrant. This
commitment, and therefore the legislation authorizing commitment in the context of this case, involve an assertion of
authority, duly guarded, auxiliary to incontestable national power. As such it is plainly within congressional power
under the Necessary and Proper Clause. Art. I, § 8, cl. 18”).
34 Brief for the United States at 23, United States v. Comstock, No. 08-1224 (U.S. August 2009).
35 Id.
36 Brief for Respondents at 8, United States v. Comstock, No. 08-1224 (U.S. October 28, 2009).
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power are not ‘necessary and proper’ to effectuating the enumerated power underlying that
federal law.”37
United States v. Comstock
Up to a point, the Court in United States v. Comstock, adopted the Justice Department’s sequential
or stepping stone argument.38 The Court agreed that the Necessary and Proper Clause permits
Congress to create federal criminal laws to ensure compliance with legislation enacted pursuant
to one of its enumerated powers.39 Having permitted the creation of criminal laws, it permits
legislation necessary and proper to punish offenders. Having permitted the punishment of
offenders, it permits legislation necessary and proper to punish offenders by imprisonment.
Having permitted the punishment of offenders by imprisonment, it permits legislation necessary
and proper to create penal institutions in which terms of imprisonment may be served. Having
permitted the creation of penal institutions for federal criminal offenders, it permits legislation
necessary and proper to safeguard others from those in federal custody both before and after the
offenders are release from federal custody. Or in the words of the Court, Section 4248 “is a
necessary and proper means of exercising the federal authority that permits Congress to create
federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for
those imprisoned, and to maintain the security of those who are not imprisoned but who may be
affected by the federal imprisonment of others.”40
The Court made it clear, however, that it had applied its method of analysis only after considering
factors in the case which both justify the conclusion and limit its application. The considerations
include: “(1) the breadth of the Necessary and Proper Clause,” as understood dating from Chief
Justice Marshall’s landmark pronouncement in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819);41 “(2) the long history of federal involvement in this area” of civil commitment of those
under federal jurisdiction found mentally ill, involvement that dates back to pre-Civil War
legislation for the treatment of members of the armed forces and residents of the District of
Columbia, 10 Stat. 158 (1855);42 “(3) the sound reasons for the statute’s enactment in light of the
Government’s custodial interest in safeguarding the public from dangers posed by those in federal
custody” should they be released when other grounds for federal detention ceased to exist;43 “(4)
the statute’s accommodation of state interests” by affording states the option of assuming
treatment responsibility for those of its citizens civilly committed under Section 4248;44 “and (5)
the statute’s narrow scope,” i.e., civil commitment of sexually dangerous individuals otherwise
scheduled for release from federal custody.45
37 Id.
38 78 U.S.L.W. 4410, 4416-417 (May 17, 2010).
39 Id.
40 Id.
41 Id. at 4416, 4412-413.
42 Id. at 4416, 4413-414.
43 Id. at 4416, 4414-415.
44 Id. at 4416, 4415.
45 Id. at 4416, 4415-416.
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The Court majority consisted of three members of the Court who dissented in Lopez and
Morrison (Justices Breyer, Stevens, and Ginsburg) and two who joined the Court thereafter
(Chief Justice Roberts and Justice Sotomayor). Two other members of the Court (Justices
Kennedy and Alito) agreed that Section 4248 constitutes a valid exercise of the Congress’s
legislative authority under the Necessary and Proper Clause, but they declined to endorse the
analysis of the majority opinion.46
Only two Justices dissented. Justice Thomas, in a dissent largely endorsed by Justice Scalia,
argued that (1) the Necessary and Proper Clause does not empower Congress “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;” (2) the analytical
standards that the Court articulated are both at odds with the Court’s precedents and lack
sufficient precision for future use;47 and (3) is contrary to the Constitution’s perception of the
Federal Government as one of limited enumerated powers.48
Had the views of Justices Thomas and Scalia prevailed, there might have been some question of
the continued validity of federal statutes which permit civil commitment on other mental grounds
of federal prisoners scheduled for release or of other statutes which permit imposition of a term of
supervised release to be served after federal inmates are released from prison.
Had the views of Justice Alito—Section 4248 is the necessary and proper exercise of authority to
carry into execution of the powers under which each of the criminal statutes of conviction were
enacted—commanded the concurrence of a majority of the Court, no such questions would have
arisen. Moreover, the scope of the Congress’s power under the Necessary and Proper Clause
might have been more easily applied in future cases.
Five members of the Court, however, obviously found more appropriate a more nuanced
description of the scope of the Clause—sometimes, the Necessary and Proper Clause will support
legislation to help carry into execution a power which itself is no more than necessary and proper.
The extent to which the Court’s five considerations will be found to limit the stepping stone reach
of the Clause in the future remains to be seen.
46 Id. at 4417 (Kennedy, J. concurring in the judgment)(“This separate writing serves two purposes. The first is to
withhold assent from certain statements and propositions of the Court’s opinion. The second is to caution that the
Constitution does require the invalidation of congressional attempts to extend federal powers in some instances ”); id.
at 4418-419 (Alito, J. concurring in the judgment)(internal quotation marks omitted)(I entirely agree with the dissent
that the Necessary and Proper Clause empowers Congress to enact only those laws that carry into Execution one or
more of the federal powers enumerated in the Constitution, but §4248 satisfies that requirement because it is a
necessary and proper means of carrying into execution the enumerated powers that support the federal criminal statutes
under which the affected prisoners were convicted”).
47 Id. at 4421(emphasis in the original)(“The Court perfunctorily genuflects to McCulloch’s framework for assessing
Congress’ Necessary and Proper Clause authority, and to the principle of dual sovereignty it helps to maintain, then
promptly abandons both in favor of a novel five-factor test supporting its conclusion that §4248 is a ‘necessary and
proper’ adjunct to a jumble of unenumerated authorit[ies] . The Court’s newly minted test cannot be reconciled with
the Clause’s plain text or with two centuries of our precedents interpreting it. It also raises more questions than it
answers”).
48 Id. at 4426 (internal citations omitted)(“Not long ago, this Court described the Necessary and Proper Clause as ‘the
last, best hope of those who defend ultra vires congressional action.’ Regrettably, today’s opinion breathes new life into
that Clause, and ... comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal
police power that ‘we always have rejected. In so doing , the Court endorses the precise abuse of power Article I is
designed to prevent –the use of a limited grant of authority as a ‘pretext ... for the accomplishment of objects not
entrusted to the government”).
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Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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