United States v. Comstock

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. COMSTOCK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 08–1224. Argued January 12, 2010—Decided May 17, 2010

Federal law allows a district court to order the civil commitment of a

mentally ill, sexually dangerous federal prisoner beyond the date he

would otherwise be released. 18 U. S. C. §4248. The Government in

stituted civil-commitment proceedings under §4248 against respon

dents, each of whom moved to dismiss on the ground, inter alia, that,

in enacting the statute, Congress exceeded its powers under the Nec

essary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing,

the District Court granted dismissal, and the Fourth Circuit affirmed

on the legislative-power ground.

Held: The Necessary and Proper Clause grants Congress authority suf

ficient to enact §4248. Taken together, five considerations compel

this conclusion. Pp. 5–22.

(1) The Clause grants Congress broad authority to pass laws in fur

therance of its constitutionally enumerated powers. It makes clear

that grants of specific federal legislative authority are accompanied

by broad power to enact laws that are “convenient, or useful” or “con

ducive” to the enumerated power’s “beneficial exercise,” e.g.,

McCulloch v. Maryland, 4 Wheat. 316, 413, 418, and that Congress

can “legislate on that vast mass of incidental powers which must be

involved in the constitution,” id., at 421. In determining whether the

Clause authorizes a particular federal statute, there must be “means

ends rationality” between the enacted statute and the source of fed

eral power. Sabri v. United States, 541 U. S. 600, 605. The Constitu

tion “addresse[s]” the “choice of means” “primarily . . . to the judg

ment of Congress. If it can be seen that the means adopted are really

calculated to attain the end, the degree of their necessity, the extent

to which they conduce to the end, the closeness of the relationship be

tween the means adopted and the end to be attained, are matters for

2 UNITED STATES v. COMSTOCK

Syllabus

congressional determination alone.” Burroughs v. United States, 290

U. S. 534, 547–548. Thus, although the Constitution nowhere grants

Congress express power to create federal crimes beyond those specifi

cally enumerated, to punish their violation, to imprison violators, to

provide appropriately for those imprisoned, or to maintain the secu

rity of those who are not imprisoned but who may be affected by the

federal imprisonment of others, Congress possesses broad authority

to do each of those things under the Clause. Pp. 5–9.

(2) Congress has long been involved in the delivery of mental

health care to federal prisoners, and has long provided for their civil

commitment. See, e.g., Act of Mar. 3, 1855, 10 Stat. 682; Insanity De

fense Reform Act of 1984, 18 U. S. C. §§4241–4247. A longstanding

history of related federal action does not demonstrate a statute’s con

stitutionality, see, e.g., Walz v. Tax Comm’n of City of New York, 397

U. S. 664, 678, but can be “helpful in reviewing the substance of a

congressional statutory scheme,” Gonzales v. Raich, 545 U. S. 1, 21,

and, in particular, the reasonableness of the relation between the

new statute and pre-existing federal interests. Section 4248 differs

from earlier statutes in that it focuses directly upon persons who, due

to a mental illness, are sexually dangerous. Many of these individu

als, however, were likely already subject to civil commitment under

§4246, which, since 1949, has authorized the postsentence detention

of federal prisoners who suffer from a mental illness and who are

thereby dangerous (whether sexually or otherwise). The similarities

between §4246 and §4248 demonstrate that the latter is a modest

addition to a longstanding federal statutory framework. Pp. 9–14.

(3) There are sound reasons for §4248’s enactment. The Federal

Government, as custodian of its prisoners, has the constitutional

power to act in order to protect nearby (and other) communities from

the danger such prisoners may pose. Moreover, §4248 is “reasonably

adapted” to Congress’ power to act as a responsible federal custodian.

United States v. Darby, 312 U. S. 100, 121. Congress could have rea

sonably concluded that federal inmates who suffer from a mental ill

ness that causes them to “have serious difficulty in refraining from

sexually violent conduct,” §4247(a)(6), would pose an especially high

danger to the public if released. And Congress could also have rea

sonably concluded that a reasonable number of such individuals

would likely not be detained by the States if released from federal

custody. Congress’ desire to address these specific challenges, taken

together with its responsibilities as a federal custodian, supports the

conclusion that §4248 satisfies “review for means-end rationality,”

Sabri, supra, at 605. Pp. 14–16.

(4) Respondents’ contention that §4248 violates the Tenth Amend

ment because it invades the province of state sovereignty in an area

Cite as: 560 U. S. ____ (2010) 3

Syllabus

typically left to state control is rejected. That Amendment does not

“reserve to the States” those powers that are “delegated to the United

States by the Constitution,” including the powers delegated by the

Necessary and Proper Clause. See, e.g., New York v. United States,

505 U. S. 144, 159. And §4248 does not “invade” state sovereignty,

but rather requires accommodation of state interests: Among other

things, it directs the Attorney General to inform the States where the

federal prisoner “is domiciled or was tried” of his detention, §4248(d),

and gives either State the right, at any time, to assert its authority

over the individual, which will prompt the individual’s immediate

transfer to State custody, §4248(d)(1). In Greenwood v. United

States, 350 U. S. 366, 375–376, the Court rejected a similar challenge

to §4248’s predecessor, the 1949 statute described above. Because

the version of the statute at issue in Greenwood was less protective of

state interests than §4248, a fortiori, the current statute does not in

vade state interests. Pp. 16–18.

(5) Section 4248 is narrow in scope. The Court rejects respondents’

argument that, when legislating pursuant to the Necessary and

Proper Clause, Congress’ authority can be no more than one step re

moved from a specifically enumerated power. See, e.g., McCulloch,

supra, at 417. Nor will the Court’s holding today confer on Congress

a general “police power, which the Founders denied the National

Government and reposed in the States.” United States v. Morrison,

529 U. S. 598, 618. Section §4248 has been applied to only a small

fraction of federal prisoners, and its reach is limited to individuals al

ready “in the custody of the” Federal Government, §4248(a). Thus,

far from a “general police power,” §4248 is a reasonably adapted and

narrowly tailored means of pursuing the Government’s legitimate in

terest as a federal custodian in the responsible administration of its

prison system. See New York, supra, at 157. Pp. 18–22.

The Court does not reach or decide any claim that the statute or its

application denies equal protection, procedural or substantive due

process, or any other constitutional rights. Respondents are free to

pursue those claims on remand, and any others they have preserved.

P. 22.

551 F. 3d 274, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined. KENNEDY,

J., and ALITO, J., filed opinions concurring in the judgment. THOMAS, J.,

filed a dissenting opinion, in which SCALIA, J., joined in all but Part III–

A–1–b.

Cite as: 560 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1224

_________________

UNITED STATES, PETITIONER v. GRAYDON

EARL COMSTOCK, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[May 17, 2010]

JUSTICE BREYER delivered the opinion of the Court.

A federal civil-commitment statute authorizes the De

partment of Justice to detain a mentally ill, sexually

dangerous federal prisoner beyond the date the prisoner

would otherwise be released. 18 U. S. C. §4248. We have

previously examined similar statutes enacted under state

law to determine whether they violate the Due Process

Clause. See Kansas v. Hendricks, 521 U. S. 346, 356–358

(1997); Kansas v. Crane, 534 U. S. 407 (2002). But this

case presents a different question. Here we ask whether

the Federal Government has the authority under Article I

of the Constitution to enact this federal civil-commitment

program or whether its doing so falls beyond the reach of a

government “of enumerated powers.” McCulloch v. Mary

land, 4 Wheat. 316, 405 (1819). We conclude that the

Constitution grants Congress the authority to enact §4248

as “necessary and proper for carrying into Execution” the

powers “vested by” the “Constitution in the Government of

the United States.” Art. I, §8, cl. 18.

I

The federal statute before us allows a district court to

2 UNITED STATES v. COMSTOCK

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order the civil commitment of an individual who is cur

rently “in the custody of the [Federal] Bureau of Prisons,”

§4248, if that individual (1) has previously “engaged or

attempted to engage in sexually violent conduct or child

molestation,” (2) currently “suffers from a serious mental

illness, abnormality, or disorder,” and (3) “as a result of”

that mental illness, abnormality, or disorder is “sexually

dangerous to others,” in that “he would have serious diffi

culty in refraining from sexually violent conduct or child

molestation if released.” §§4247(a)(5)–(6).

In order to detain such a person, the Government (act

ing through the Department of Justice) must certify to a

federal district judge that the prisoner meets the condi

tions just described, i.e., that he has engaged in sexually

violent activity or child molestation in the past and that

he suffers from a mental illness that makes him corre

spondingly dangerous to others. §4248(a). When such a

certification is filed, the statute automatically stays the

individual’s release from prison, ibid., thereby giving the

Government an opportunity to prove its claims at a hear

ing through psychiatric (or other) evidence, §§4247(b)–(c),

4248(b). The statute provides that the prisoner “shall be

represented by counsel” and shall have “an opportunity” at

the hearing “to testify, to present evidence, to subpoena

witnesses on his behalf, and to confront and cross

examine” the Government’s witnesses. §§4247(d), 4248(c).

If the Government proves its claims by “clear and con

vincing evidence,” the court will order the prisoner’s con

tinued commitment in “the custody of the Attorney Gen

eral,” who must “make all reasonable efforts to cause” the

State where that person was tried, or the State where he

is domiciled, to “assume responsibility for his custody,

care, and treatment.” §4248(d); cf. Sullivan v. Freeman,

944 F. 2d 334, 337 (CA7 1991). If either State is willing to

assume that responsibility, the Attorney General “shall

release” the individual “to the appropriate official” of that

Cite as: 560 U. S. ____ (2010) 3

Opinion of the Court

State. §4248(d). But if, “notwithstanding such efforts,

neither such State will assume such responsibility,” then

“the Attorney General shall place the person for treatment

in a suitable [federal] facility.” Ibid.; cf. §4247(i)(A).

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 appro

priate ongoing treatment), in which case he will be re

leased; or (2) a State assumes responsibility for his cus

tody, 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

six-month intervals. §§4247(e)(1)(B), (h).

In November and December 2006, the Government

instituted proceedings in the Federal District Court for the

Eastern District of North Carolina against the five re

spondents in this case. Three of the five had previously

pleaded guilty in federal court to possession of child por

nography, see 507 F. Supp. 2d 522, 526, and n. 2 (2007);

§2252A(a), and the fourth had pleaded guilty to sexual

abuse of a minor, see United States v. Vigil, No.

1:99CR00509–001 (D NM, Jan. 26, 2000); §§1153, 2243(a).

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 oth

ers. App. 38–40, 44–52. During that same time period,

the Government instituted similar proceedings against the

fifth respondent, who had been charged in federal court

with aggravated sexual abuse of a minor, but was found

mentally incompetent to stand trial. See id., at 41–43;

United States v. Catron, No. 04–778 (D Ariz., Mar. 27,

2006); §4241(d).

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Each of the five respondents moved to dismiss the civil

commitment proceeding on constitutional grounds. They

claimed that the commitment proceeding is, in fact, crimi

nal, not civil, in nature and consequently that it violates

the Double Jeopardy Clause, the Ex Post Facto Clause,

and the Sixth and Eighth Amendments. 507 F. Supp. 2d,

at 528. They claimed that the statute denies them sub

stantive due process and equal protection of the laws.

Ibid. They claimed that it violates their procedural due

process rights by allowing a showing of sexual dangerous

ness to be made by clear and convincing evidence, instead

of by proof beyond a reasonable doubt. Ibid. And, finally,

they claimed that, in enacting the statute, Congress ex

ceeded the powers granted to it by Art. I, §8 of the Consti

tution, including those granted by the Commerce Clause

and the Necessary and Proper Clause. 507 F. Supp. 2d, at

528–529.

The District Court, accepting two of the respondents’

claims, granted their motion to dismiss. It agreed with

respondents that the Constitution requires proof beyond a

reasonable doubt, id., at 551–559 (citing In re Winship,

397 U. S. 358 (1970)), and it agreed that, in enacting the

statute, Congress exceeded its Article I legislative powers,

507 F. Supp. 2d, at 530–551. On appeal, the Court of

Appeals for the Fourth Circuit upheld the dismissal on

this latter, legislative-power ground. 551 F. 3d 274, 278–

284 (2009). It did not decide the standard-of-proof ques

tion, nor did it address any of respondents’ other constitu

tional challenges. Id., at 276, n. 1.

The Government sought certiorari, and we granted its

request, limited to the question of Congress’ authority

under Art. I, §8 of the Constitution. Pet. for Cert. i. Since

then, two other Courts of Appeals have considered that

same question, each deciding it in the Government’s favor,

thereby creating a split of authority among the Circuits.

See United States v. Volungus, 595 F. 3d 1 (CA1 2010);

Cite as: 560 U. S. ____ (2010) 5

Opinion of the Court

United States v. Tom, 565 F. 3d 497 (CA8 2009).

II

The question presented is whether the Necessary and

Proper Clause, Art. I, §8, cl. 18, grants Congress authority

sufficient to enact the statute before us. In resolving that

question, we assume, but we do not decide, that other

provisions of the Constitution—such as the Due Process

Clause—do not prohibit civil commitment in these circum

stances. Cf. Hendricks, 521 U. S. 346; Addington v. Texas,

441 U. S. 418 (1979). In other words, we assume for ar

gument’s sake that the Federal Constitution would permit

a State to enact this statute, and we ask solely whether

the Federal Government, exercising its enumerated pow

ers, may enact such a statute as well. On that assump

tion, we conclude that the Constitution grants Congress

legislative power sufficient to enact §4248. We base this

conclusion on five considerations, taken together.

First, the Necessary and Proper Clause grants Congress

broad authority to enact federal legislation. Nearly 200

years ago, this Court stated that the Federal “[G]overn

ment is acknowledged by all to be one of enumerated

powers,” McCulloch, 4 Wheat., at 405, which means that

“[e]very law enacted by Congress must be based on one or

more of” those powers, United States v. Morrison, 529

U. S. 598, 607 (2000). But, at the same time, “a govern

ment, entrusted with such” powers “must also be en

trusted with ample means for their execution.”

McCulloch, 4 Wheat., at 408. Accordingly, the Necessary

and Proper Clause makes clear that the Constitution’s

grants of specific federal legislative authority are accom

panied by broad power to enact laws that are “convenient,

or useful” or “conducive” to the authority’s “beneficial

exercise.” Id., at 413, 418; see also id., at 421 (“[Congress

can] legislate on that vast mass of incidental powers which

must be involved in the constitution . . .”). Chief Justice

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Marshall emphasized that the word “necessary” does not

mean “absolutely necessary.” Id., at 413–415 (emphasis

deleted); Jinks v. Richland County, 538 U. S. 456, 462

(2003) (“[W]e long ago rejected the view that the Neces

sary and Proper Clause demands that an Act of Congress

be ‘ “absolutely necessary” ’ to the exercise of an enumer

ated power”). In language that has come to define the

scope of the Necessary and Proper Clause, he wrote:

“Let the end be legitimate, let it be within the scope of

the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” McCulloch, supra, at

421.

We have since made clear that, in determining whether

the Necessary and Proper Clause grants Congress the

legislative authority to enact a particular federal statute,

we look to see whether the statute constitutes a means

that is rationally related to the implementation of a con

stitutionally enumerated power. Sabri v. United States,

541 U. S. 600, 605 (2004) (using term “means-ends ration

ality” to describe the necessary relationship); ibid. (up

holding Congress’ “authority under the Necessary and

Proper Clause” to enact a criminal statute in furtherance

of the federal power granted by the Spending Clause); see

Gonzales v. Raich, 545 U. S. 1, 22 (2005) (holding that

because “Congress had a rational basis” for concluding

that a statute implements Commerce Clause power, the

statute falls within the scope of congressional “authority to

‘make all Laws which shall be necessary and proper’ to

‘regulate Commerce . . . among the several States’ ” (ellip

sis in original)); see also United States v. Lopez, 514 U. S.

549, 557 (1995); Hodel v. Virginia Surface Mining & Rec

lamation Assn., Inc., 452 U. S. 264, 276 (1981).

Of course, as Chief Justice Marshall stated, a federal

Cite as: 560 U. S. ____ (2010) 7

Opinion of the Court

statute, in addition to being authorized by Art. I, §8, must

also “not [be] prohibited” by the Constitution. McCulloch,

supra, at 421. But as we have already stated, the present

statute’s validity under provisions of the Constitution

other than the Necessary and Proper Clause is an issue

that is not before us. Under the question presented, the

relevant inquiry is simply “whether the means chosen are

‘reasonably adapted’ to the attainment of a legitimate end

under the commerce power” or under other powers that

the Constitution grants Congress the authority to imple

ment. Gonzales, supra, at 37 (SCALIA, J., concurring in

judgment) (quoting United States v. Darby, 312 U. S. 100,

121 (1941)).

We have also recognized that the Constitution “ad

dresse[s]” the “choice of means”

“primarily . . . to the judgment of Congress. If it can

be seen that the means adopted are really calculated

to attain the end, the degree of their necessity, the ex

tent to which they conduce to the end, the closeness of

the relationship between the means adopted and the

end to be attained, are matters for congressional de

termination alone.” Burroughs v. United States, 290

U. S. 534, 547–548 (1934).

See also Lottery Case, 188 U. S. 321, 355 (1903) (“[T]he

Constitution . . . . leaves to Congress a large discretion as

to the means that may be employed in executing a given

power”); Morrison, supra, at 607 (applying a “presumption

of constitutionality” when examining the scope of Con

gressional power); McCulloch, supra, at 410, 421.

Thus, the Constitution, which nowhere speaks explicitly

about the creation of federal crimes beyond those related

to “counterfeiting,” “treason,” or “Piracies and Felonies

committed on the high Seas” or “against the Law of Na

tions,” Art. I, §8, cls. 6, 10; Art. III, §3, nonetheless grants

Congress broad authority to create such crimes. See

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Opinion of the Court

McCulloch, 4 Wheat., at 416 (“All admit that the govern

ment may, legitimately, punish any violation of its laws;

and yet, this is not among the enumerated powers of

Congress”); see also United States v. Fox, 95 U. S. 670, 672

(1878). And Congress routinely exercises its authority to

enact criminal laws in furtherance of, for example, its

enumerated powers to regulate interstate and foreign

commerce, to enforce civil rights, to spend funds for the

general welfare, to establish federal courts, to establish

post offices, to regulate bankruptcy, to regulate naturali

zation, and so forth. Art. I, §8, cls. 1, 3, 4, 7, 9; Amdts. 13–

15. See, e.g., Lottery Case, supra (upholding criminal

statute enacted in furtherance of the Commerce Clause);

Ex parte Yarbrough, 110 U. S. 651 (1884) (upholding

Congress’ authority to enact Rev. Stat. §5508, currently 18

U. S. C. §241 (criminalizing civil-rights violations) and

Rev. Stat. §5520, currently 42 U. S. C. §1973j (criminaliz

ing voting-rights violations) in furtherance of the Four

teenth and Fifteenth Amendments); Sabri, supra, (uphold

ing criminal statute enacted in furtherance of the

Spending Clause); Jinks, supra, at 462, n. 2 (citing

McCulloch, supra, at 417) (describing perjury and witness

tampering as federal crimes enacted in furtherance of the

power to constitute federal tribunals); see also 18 U. S. C.

§1691 et seq. (postal crimes); §151 et seq. (bankruptcy

crimes); 8 U. S. C. §§1324–1328 (immigration crimes).

Similarly, Congress, in order to help ensure the en

forcement of federal criminal laws enacted in furtherance

of its enumerated powers, “can cause a prison to be erected

at any place within the jurisdiction of the United States,

and direct that all persons sentenced to imprisonment

under the laws of the United States shall be confined

there.” Ex parte Karstendick, 93 U. S. 396, 400 (1876).

Moreover, Congress, having established a prison system,

can enact laws that seek to ensure that system’s safe and

responsible administration by, for example, requiring

Cite as: 560 U. S. ____ (2010) 9

Opinion of the Court

prisoners to receive medical care and educational training,

see, e.g., 18 U. S. C. §§4005–4006; §4042(a)(3), and can

also ensure the safety of the prisoners, prison workers and

visitors, and those in surrounding communities by, for

example, creating further criminal laws governing entry,

exit, and smuggling, and by employing prison guards to

ensure discipline and security. See, e.g., §1791 (prohibit

ing smuggling contraband); §751 et seq. (prohibiting es

cape and abetting thereof); 28 CFR §541.10 et seq. (2009)

(inmate discipline).

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 prison

ers, is explicitly mentioned in the Constitution. But Con

gress nonetheless possesses broad authority to do each of

those things in the course of “carrying into Execution” the

enumerated powers “vested by” the “Constitution in the

Government of the United States,” Art. I, §8, cl. 18—

authority granted by the Necessary and Proper Clause.

Second, the civil-commitment statute before us consti

tutes a modest addition to a set of federal prison-related

mental-health statutes that have existed for many dec

ades. We recognize that even a longstanding history of

related federal action does not demonstrate a statute’s

constitutionality. See, e.g., Walz v. Tax Comm’n of City of

New York, 397 U. S. 664, 678 (1970) (“[N]o one acquires a

vested or protected right in violation of the Constitution by

long use . . .”); cf. Morrison, 529 U. S., at 612–614 (legisla

tive history is neither necessary nor sufficient with respect

to Art. I analysis). A history of involvement, however, can

nonetheless be “helpful in reviewing the substance of a

congressional statutory scheme,” Gonzales, 545 U. S., at

21; Walz, supra, at 678, and, in particular, the reason

ableness of the relation between the new statute and pre

existing federal interests.

Here, Congress has long been involved in the delivery of

10 UNITED STATES v. COMSTOCK

Opinion of the Court

mental health care to federal prisoners, and has long

provided for their civil commitment. In 1855 it estab

lished Saint Elizabeth’s Hospital in the District of Colum

bia to provide treatment to “the insane of the army and

navy . . . and of the District of Columbia.” Act of Mar. 3,

1855, 10 Stat. 682; 39 Stat. 309. In 1857 it provided for

confinement at Saint Elizabeth’s of any person within the

District of Columbia who had been “charged with [a]

crime” and who was “insane” or later became “insane

during the continuance of his or her sentence in the

United States penitentiary.” Act of Feb. 7, 1857, §§5–6, 11

Stat. 158; see 17 Op. Atty. Gen. 211, 212–213 (1881). In

1874, expanding the geographic scope of its statutes,

Congress provided for civil commitment in federal facili

ties (or in state facilities if a State so agreed) of “all per

sons who have been or shall be convicted of any offense in

any court of the United States” and who are or “shall

become” insane “during the term of their imprisonment.”

Act of June 23, 1874, ch. 465, 18 Stat. 251 (emphasis

added). And in 1882 Congress provided for similar com

mitment of those “charged” with federal offenses who

become “insane” while in the “custody” of the United

States. Act of Aug. 7, 1882, 22 Stat. 330 (emphasis

added). Thus, over the span of three decades, Congress

created a national, federal civil-commitment program

under which any person who was either charged with or

convicted of any federal offense in any federal court could

be confined in a federal mental institution.

These statutes did not raise the question presented

here, for they all provided that commitment in a federal

hospital would end upon the completion of the relevant

“terms” of federal “imprisonment” as set forth in the un

derlying criminal sentence or statute. §§2–3, 18 Stat. 252;

see 35 Op. Atty. Gen. 366, 368 (1927); cf. 30 Op. Atty. Gen.

569, 571 (1916). But in the mid-1940’s that proviso was

eliminated.

Cite as: 560 U. S. ____ (2010) 11

Opinion of the Court

In 1945 the Judicial Conference of the United States

proposed legislative reforms of the federal civil

commitment system. The Judicial Conference based its

proposals upon what this Court has described as a “long

study by a conspicuously able committee” (chaired by

Judge Calvert Magruder and whose members included

Judge Learned Hand), involving consultation “with federal

district and circuit judges” across the country as well as

with the Department of Justice. Greenwood v. United

States, 350 U. S. 366, 373 (1956); Greenwood v. United

States, 219 F. 2d 376, 380–384 (CA8 1955) (describing the

committee’s work). The committee studied, among other

things, the “serious problem faced by the Bureau of Pris

ons, namely, what to do with insane criminals upon the

expiration of their terms of confinement, where it would be

dangerous to turn them loose upon society and where no

state will assume responsibility for their custody.” Judi

cial Conference, Report of Committee to Study Treatment

Accorded by Federal Courts to Insane Persons Charged

with Crime 11 (1945) (hereinafter Committee Report),

App. 73. The committee provided examples of instances in

which the Bureau of Prisons had struggled with the prob

lem of “ ‘paranoid’ ” and “ ‘threatening’ ” individuals whom

no State would accept. Id., at 9, App. 71. And it noted

that, in the Bureau’s “[e]xperience,” States would not

accept an “appreciable number” of “mental[ly] incompe

tent” individuals “nearing expiration” of their prison

terms, because of their “lack of legal residence in any

State,” even though those individuals “ought not . . . be at

large because they constitute a menace to public safety.”

H. R. Rep. No. 1319, 81st Cong., 1st Sess., 2 (1949) (state

ment of James V. Bennett, Director); see also Letter from

Bennett to Judge Magruder, attachment to Committee

Report, App. 83–88. The committee, hence the Judicial

Conference, therefore recommended that Congress enact

“some provision of law authorizing the continued confine

12 UNITED STATES v. COMSTOCK

Opinion of the Court

ment of such persons after their sentences expired.”

Committee Report 11, App. 73; see also Report of the

Judicial Conference of Senior Circuit Judges 13 (1945).

Between 1948 and 1949, following its receipt of the

Judicial Conference report, Congress modified the law.

See Act of June 25, 1948, 62 Stat. 855, 18 U. S. C. §§4241–

4243 (1952 ed.); Act of Sept. 7, 1949, 63 Stat. 686, 18

U. S. C. §§4244–4248. It provided for the civil commit

ment of individuals who are, or who become, mentally

incompetent at any time after their arrest and before the

expiration of their federal sentence, §§4241, 4244, 4247–

4248; and it set forth various procedural safeguards,

§§4242, 4246, 4247. With respect to an individual whose

prison term is about to expire, it specified the following:

“Whenever the Director of the Bureau of Prisons

shall certify that a prisoner whose sentence is about to

expire has been examined [and] . . . in the judgment of

the Director and the board of examiners the prisoner

is insane or mentally incompetent, and . . . if released

he will probably endanger the safety of the officers,

the property, or other interests of the United States,

and that suitable arrangements for the custody and

care of the prisoner are not otherwise available, the

Attorney General shall transmit the certificate to . . .

the court for the district in which the prisoner is con

fined. Whereupon the court shall cause the prisoner

to be examined . . . and shall . . . hold a hearing . . . . If

upon such hearing the court shall determine that the

conditions specified above exist, the court may commit

the prisoner to the custody of the Attorney General or

his authorized representative.” §4247.

The precondition that the mentally ill individual’s release

would “probably endanger the safety of the officers, the

property, or other interests of the United States” was

uniformly interpreted by the Judiciary to mean that his

Cite as: 560 U. S. ____ (2010) 13

Opinion of the Court

“release would endanger the safety of persons, property or

the public interest in general—not merely the interests

peculiar to the United States as such.” United States v.

Curry, 410 F. 2d 1372, 1374 (CA4 1969); see also Royal v.

United States, 274 F. 2d 846, 851–852 (CA10 1960).

In 1984, Congress modified these basic statutes. See

Insanity Defense Reform Act of 1984, 98 Stat. 2057, 18

U. S. C. §§4241–4247 (2006 ed.). As relevant here, it

altered the provision just discussed, regarding the pris

oner’s danger to the “interests of the United States,” to

conform more closely to the then-existing judicial interpre

tation of that language, i.e., it altered the language so as

to authorize (explicitly) civil commitment if, in addition to

the other conditions, the prisoner’s “release would create a

substantial risk of bodily injury to another person or

serious damage to the property of another.” §4246(d).

Congress also elaborated upon the required condition

“that suitable arrangements . . . are not otherwise avail

able” by directing the Attorney General to seek alternative

placement in state facilities, as we have set forth above.

See ibid.; supra, at 2–3. 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. §§4241(d), 4246; see also §4243(d). They continue

to provide for the continued civil commitment of those

individuals when they are “due for release” from federal

custody because their “sentence is about to expire.” §4246.

And, as we have previously set forth, they establish vari

ous procedural and other requirements. E.g., §4247.

In 2006, Congress enacted the particular statute before

us. §302, 120 Stat. 619, 18 U. S. C. §4248. It differs from

earlier statutes in that it focuses directly upon persons

who, due to a mental illness, are sexually dangerous.

Notably, many of these individuals were likely already

subject to civil commitment under §4246, which, since

14 UNITED STATES v. COMSTOCK

Opinion of the Court

1949, has authorized the postsentence detention of federal

prisoners who suffer from a mental illness and who are

thereby dangerous (whether sexually or otherwise). But

cf. H. R. Rep. No. 109–218, pt. 1, p. 29 (2005). Aside from

its specific focus on sexually dangerous persons, §4248 is

similar to the provisions first enacted in 1949. Cf. §4246.

In that respect, it is a modest addition to a longstanding

federal statutory framework, which has been in place

since 1855.

Third, Congress reasonably extended its longstanding

civil-commitment system to cover mentally ill and sexually

dangerous persons who are already in federal custody,

even if doing so detains them beyond the termination of

their criminal sentence. For one thing, the Federal Gov

ernment is the custodian of its prisoners. As federal cus

todian, it has the constitutional power to act in order to

protect nearby (and other) communities from the danger

federal prisoners may pose. Cf. Youngberg v. Romeo, 457

U. S. 307, 320 (1982) (“In operating an institution such as

[a prison system], there are occasions in which it is neces

sary for the State to restrain the movement of residents—

for example, to protect them as well as others from vio

lence” (emphasis added)). Indeed, at common law, one

“who takes charge of a third person” is “under a duty to

exercise reasonable care to control” that person to prevent

him from causing reasonably foreseeable “bodily harm to

others.” Restatement (Second) of Torts §319, p. 129

(1963–1964); see Volungus, 595 F. 3d, at 7–8 (citing cases);

see also United States v. S. A., 129 F. 3d 995, 999 (CA8

1997) (“[Congress enacted §4246] to avert the public dan

ger 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 Gov

ernment to take action, pursuant to its role as federal

custodian, to refuse (at least until the threat diminishes)

Cite as: 560 U. S. ____ (2010) 15

Opinion of the Court

to release that individual among the general public, where

he might infect others (even if not threatening an inter

state epidemic, cf. Art. I, §8, cl. 3). And if confinement of

such an individual is a “necessary and proper” thing to do,

then how could it not 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 7–8).

Congress could have reasonably concluded that federal

inmates who suffer from a mental illness that causes them

to “have serious difficulty in refraining from sexually

violent conduct,” §4247(a)(6), would pose an especially

high danger to the public if released. Cf. H. R. Rep. No.

109–218, at 22–23. And Congress could also have rea

sonably concluded (as detailed in the Judicial Conference’s

report) that a reasonable number of such individuals

would likely not be detained by the States if released from

federal custody, in part because the Federal Government

itself severed their claim to “legal residence in any State”

by incarcerating them in remote federal prisons. H. R.

Rep. No. 1319, at 2; Committee Report 7–11, App. 69–75;

cf. post, at 6 (KENNEDY, J., concurring in judgment). Here

Congress’ desire to address the specific challenges identi

fied in the Reports cited above, taken together with its

responsibilities as a federal custodian, supports the con

clusion that §4248 satisfies “review for means-end ration

ality,” i.e., that it satisfies the Constitution’s insistence

that a federal statute represent a rational means for im

plementing a constitutional grant of legislative authority.

Sabri, 541 U. S., at 605 (citing McCulloch, 4 Wheat. 316).

See Jinks, 538 U. S., at 462–463 (opinion for the Court by

SCALIA, J.) (holding that a statute is authorized by the

16 UNITED STATES v. COMSTOCK

Opinion of the Court

Necessary and Proper Clause when it “provides an alter

native to [otherwise] unsatisfactory options” that are

“obviously inefficient”).

Fourth, the statute properly accounts for state interests.

Respondents and the dissent contend that §4248 violates

the Tenth Amendment because it “invades the province of

state sovereignty” in an area typically left to state control.

New York v. United States, 505 U. S. 144, 155 (1992); see

Brief for Respondents 35–47; post, at 7–8, 19–23 (THOMAS,

J., dissenting). See also Jackson v. Indiana, 406 U. S. 715,

736 (1972) (“The States have traditionally exercised broad

power to commit persons found to be mentally ill”). But

the Tenth Amendment’s text is clear: “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.” (Emphasis added.) The

powers “delegated to the United States by the Constitu

tion” include those specifically enumerated powers listed

in Article I along with the implementation authority

granted by the Necessary and Proper Clause. Virtually by

definition, these powers are not powers that the Constitu

tion “reserved to the States.” See New York, supra, at 156,

159 (“[I]f a power is delegated to Congress in the Constitu

tion, the Tenth Amendment expressly disclaims any res

ervation of that power to the States . . . .” “In the end . . .

it makes no difference whether one views the question at

issue in these cases as one of ascertaining the limits of the

power delegated to the Federal Government under the

affirmative provisions of the Constitution or one of dis

cerning the core of sovereignty retained by the States

under the Tenth Amendment”); Darby, supra, at 123–124;

see also Hodel, 452 U. S., at 276–277, 281; Maryland v.

Wirtz, 392 U. S. 183, 195–196 (1968); Lambert v. Yellow

ley, 272 U. S. 581, 596 (1926).

Nor does this statute invade state sovereignty or other

wise improperly limit the scope of “powers that remain

Cite as: 560 U. S. ____ (2010) 17

Opinion of the Court

with the States.” Post, at 7 (THOMAS, J., dissenting). To

the contrary, it requires accommodation of state interests:

The Attorney General must inform the State in which the

federal prisoner “is domiciled or was tried” that he is

detaining someone with respect to whom those States may

wish to assert their authority, and he must encourage

those States to assume custody of the individual.

§4248(d). He must also immediately “release” that person

“to the appropriate official of” either State “if such State

will assume [such] responsibility.” Ibid. And either State

has the right, at any time, to assert its authority over the

individual, which will prompt the individual’s immediate

transfer to State custody. §4248(d)(1). Respondents con

tend that the States are nonetheless “powerless to prevent

the detention of their citizens under §4248, even if deten

tion is contrary to the States’ policy choices.” Brief for

Respondents 11 (emphasis added). But that is not the

most natural reading of the statute, see §§4248(d)(1)–(e),

and the Solicitor General acknowledges that “the Federal

Government would have no appropriate role” with respect

to an individual covered by the statute once “the transfer

to State responsibility and State control has occurred.” Tr.

of Oral Arg. 9.

In Greenwood, 350 U. S. 366, the Court rejected a chal

lenge to the current statute’s predecessor—i.e., to the 1949

statute we described above, supra, at 11–12. The petition

ers in that case claimed, like the respondents here, that

the statute improperly interfered with state sovereignty.

See Brief for Petitioner in Greenwood v. United States,

O. T. 1955, No. 460, pp. 2, 18–29. But the Court rejected

that argument. See Greenwood, supra, at 375–376. And

the version of the statute at issue in Greenwood was less

protective of state interests than the current statute. That

statute authorized federal custody so long as “suitable

arrangements” were “not otherwise available” in a State or

otherwise. 63 Stat. 687 (emphasis added). Cf. Brief for

18 UNITED STATES v. COMSTOCK

Opinion of the Court

Petitioner in Greenwood, supra, at 25 (“What has really

happened is that the Federal government has been dissat

isfied with the care given by the states to those mentally

incompetent who have been released by the Federal au

thorities”). Here, by contrast, as we have explained, §4248

requires the Attorney General to encourage the relevant

States to take custody of the individual without inquiring

into the “suitability” of their intended care or treatment,

and to relinquish federal authority whenever a State

asserts its own. §4248(d). Thus, if the statute at issue in

Greenwood did not invade state interests, then, a fortiori,

neither does §4248.

Fifth, the links between §4248 and an enumerated

Article I power are not too attenuated. Neither is the

statutory provision too sweeping in its scope. Invoking the

cautionary instruction that we may not “pile inference

upon inference” in order to sustain congressional action

under Article I, Lopez, 514 U. S., at 567, respondents

argue that, when legislating pursuant to the Necessary

and Proper Clause, Congress’ authority can be no more

than one step removed from a specifically enumerated

power. See Brief for Respondents 21–22; Tr. of Oral Arg.

27–28. But this argument is irreconcilable with our prece

dents. Again, take Greenwood as an example. In that

case we upheld the (likely indefinite) civil commitment of

a mentally incompetent federal defendant who was ac

cused 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’

. . . is executed by the single act of making the estab

lishment. . . . [F]rom this has been inferred the power

and duty of carrying the mail along the post road,

Cite as: 560 U. S. ____ (2010) 19

Opinion of the Court

from one post office to another. And, from

this implied power, has again been inferred the right

to punish those who steal letters from the post office,

or rob the mail.” 4 Wheat., at 417 (emphasis added).

And, as we have explained, from the implied power to

punish we have further inferred both the power to im

prison, see supra, at 8–9, and, in Greenwood, the federal

civil-commitment power.

Our necessary and proper jurisprudence contains multi

ple examples of similar reasoning. For example, in Sabri

we observed that “Congress has authority under the

Spending Clause to appropriate federal moneys” and that

it therefore “has corresponding authority under the Neces

sary and Proper Clause to see to it that taxpayer dollars”

are not “siphoned off” by “corrupt public officers.” 541

U. S., at 605 (citation omitted). We then further held that,

in aid of that implied power to criminalize graft of “tax

payer dollars,” Congress has the additional prophylactic

power to criminalize bribes or kickbacks even when the

stolen funds have not been “traceably skimmed from

specific federal payments.” Ibid. Similarly, in United

States v. Hall, 98 U. S. 343 (1879), we held that the Neces

sary and Proper Clause grants Congress the power, in

furtherance of Art. I, §8, cls. 11–13, to award “pensions to

the wounded and disabled” soldiers of the armed forces

and their dependents, 98 U. S. at 351; and from that im

plied power we further inferred the “[i]mplied power” “to

pass laws to . . . punish” anyone who fraudulently appro

priated such pensions, id., at 346. See also Stewart v.

Kahn, 11 Wall. 493, 506–507 (1871).

Indeed even the dissent acknowledges that Congress

has the implied power to criminalize any conduct that

might interfere with the exercise of an enumerated power,

and also the additional power to imprison people who

violate those (inferentially authorized) laws, and the

20 UNITED STATES v. COMSTOCK

Opinion of the Court

additional power to provide for the safe and reasonable

management of those prisons, and the additional power to

regulate the prisoners’ behavior even after their release.

See post, at 12–13, 17, n. 11. Of course, each of those

powers, like the powers addressed in Sabri, Hall, and

McCulloch, is ultimately “derived from” an enumerated

power, Hall, supra, at 345. And, as the dissent agrees,

that enumerated power is “the enumerated power that

justifies the defendant’s statute of conviction,” post, at 17,

n. 11. Neither we nor the dissent can point to a single

specific enumerated power “that justifies a criminal de

fendant’s arrest or conviction,” post, at 12, in all cases

because Congress relies on different enumerated powers

(often, but not exclusively, its Commerce Clause power) to

enact its various federal criminal statutes, see supra, at 7–

8. But every such statute must itself be legitimately

predicated on an enumerated power. And the same enu

merated power that justifies the creation of a federal

criminal statute, and that justifies the additional implied

federal powers that the dissent considers legitimate, justi

fies civil commitment under §4248 as well. See supra, at

14–16. Thus, we must reject respondents’ argument that

the Necessary and Proper Clause permits no more than a

single step between an enumerated power and an Act of

Congress.

Nor need we fear that our holding today confers on

Congress a general “police power, which the Founders

denied the National Government and reposed in the

States.” Morrison, 529 U. S., at 618. As the Solicitor

General repeatedly confirmed at oral argument, §4248 is

narrow in scope. It has been applied to only a small frac

tion of federal prisoners. See Tr. of Oral Arg. 24–25 (105

individuals have been subject to §4248 out of over 188,000

federal inmates); see also Dept. of Justice, Bureau of

Justice Statistics, W. Sabol, H. West, & M. Cooper, Pris

oners in 2008, p. 8 (rev. Apr. 2010) (Table 8), online at

Cite as: 560 U. S. ____ (2010) 21

Opinion of the Court

http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf/ (as visited

May 4, 2010, and available in Clerk of Court’s case file).

And its reach is limited to individuals already “in the

custody of the” Federal Government. §4248(a); Tr. of Oral

Arg. 7 (“[Federal authority for §4248] has always de

pended on the fact of Federal custody, on the fact that this

person has entered the criminal justice system . . .”).

Indeed, the Solicitor General argues that “the Federal

Government would not have . . . the power to commit a

person who . . . has been released from prison and whose

period of supervised release is also completed.” Id., at 9.

Thus, far from a “general police power,” §4248 is a rea

sonably adapted and narrowly tailored means of pursuing

the Government’s legitimate interest as a federal custo

dian in the responsible administration of its prison

system.

To be sure, as we have previously acknowledged,

“The Federal Government undertakes activities today

that would have been unimaginable to the Framers in

two senses; first, because the Framers would not have

conceived that any government would conduct such

activities; and second, because the Framers would not

have believed that the Federal Government, rather

than the States, would assume such responsibilities.

Yet the powers conferred upon the Federal Govern

ment 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 consti

tution intended to endure for ages to come, and, conse

quently, to be adapted to the various crises of human

affairs.” McCulloch, 4 Wheat., at 415 (emphasis deleted).

22 UNITED STATES v. COMSTOCK

Opinion of the Court

* * *

We take these five considerations together. They in

clude: (1) the breadth of the Necessary and Proper Clause,

(2) the long history of federal involvement in this arena,

(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, (4)

the statute’s accommodation of state interests, and (5) the

statute’s narrow scope. Taken together, these considera

tions 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 pun

ish their violation, to imprison violators, to provide appro

priately 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. The Constitution

consequently authorizes Congress to enact the statute.

We do not reach or decide any claim that the statute or

its application denies equal protection of the laws, proce

dural or substantive due process, or any other rights

guaranteed by the Constitution. Respondents are free to

pursue those claims on remand, and any others they have

preserved.

The judgment of the Court of Appeals for the Fourth

Circuit with respect to Congress’ power to enact this stat

ute is reversed, and the case is remanded for further

proceedings consistent with this opinion.

It is so ordered.

Cite as: 560 U. S. ____ (2010) 1

KENNEDY, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1224

_________________

UNITED STATES, PETITIONER v. GRAYDON

EARL COMSTOCK, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[May 17, 2010]

JUSTICE KENNEDY, concurring in the judgment.

The Court is correct, in my view, to hold that the chal

lenged portions of 18 U. S. C. §4248 are necessary and

proper exercises of congressional authority.

Respondents argue that congressional authority under

the Necessary and Proper Clause can be no more than one

step removed from an enumerated power. This is incor

rect. When the inquiry is whether a federal law has suffi

cient links to an enumerated power to be within the scope

of federal authority, the analysis depends not on the num

ber of links in the congressional-power chain but on the

strength of the chain.

Concluding that a relation can be put into a verbal

formulation that fits somewhere along a causal chain of

federal powers is merely the beginning, not the end, of the

constitutional inquiry. See United States v. Lopez, 514

U. S. 549, 566–567 (1995). The inferences must be con

trolled by some limitations lest, as Thomas Jefferson

warned, congressional powers become completely un

bounded by linking one power to another ad infinitum in a

veritable game of “ ‘this is the house that Jack built.’ ”

Letter from Thomas Jefferson to Edward Livingston (Apr.

30, 1800), 31 The Papers of Thomas Jefferson 547 (B.

Oberg ed. 2004); see also United States v. Patton, 451

F. 3d 615, 628 (CA10 2006).

2 UNITED STATES v. COMSTOCK

KENNEDY, J., concurring in judgment

This separate writing serves two purposes. The first is

to withhold assent from certain statements and proposi

tions of the Court’s opinion. The second is to caution that

the Constitution does require the invalidation of congres

sional attempts to extend federal powers in some

instances.

I

The Court concludes that, when determining whether

Congress has the authority to enact a specific law under

the Necessary and Proper Clause, we look “to see whether

the statute constitutes a means that is rationally related

to the implementation of a constitutionally enumerated

power.” Ante, at 6 (suggesting that Sabri v. United States,

541 U. S. 600, 605 (2004), adopts a “means-ends rational

ity” test).

The terms “rationally related” and “rational basis” must

be employed with care, particularly if either is to be used

as a stand-alone test. The phrase “rational basis” most

often is employed to describe the standard for determining

whether legislation that does not proscribe fundamental

liberties nonetheless violates the Due Process Clause.

Referring to this due process inquiry, and in what must be

one of the most deferential formulations of the standard

for reviewing legislation in all the Court’s precedents, the

Court has said: “But the law need not be in every respect

logically consistent with its aims to be constitutional. It is

enough that there is an evil at hand for correction, and

that it might be thought that the particular legislative

measure was a rational way to correct it.” Williamson v.

Lee Optical of Okla., Inc., 348 U. S. 483, 487–488 (1955).

This formulation was in a case presenting a due process

challenge and a challenge to a State’s exercise of its own

powers, powers not confined by the principles that control

the limited nature of our National Government. The

phrase, then, should not be extended uncritically to the

Cite as: 560 U. S. ____ (2010) 3

KENNEDY, J., concurring in judgment

issue before us.

The operative constitutional provision in this case is the

Necessary and Proper Clause. This Court has not held

that the Lee Optical test, asking if “it might be thought

that the particular legislative measure was a rational way

to correct” an evil, is the proper test in this context.

Rather, under the Necessary and Proper Clause, applica

tion of a “rational basis” test should be at least as exacting

as it has been in the Commerce Clause cases, if not more

so. Indeed, the cases the Court cites in the portion of its

opinion referring to “rational basis” are predominantly

Commerce Clause cases, and none are due process cases.

See ante, at 6 (citing Gonzales v. Raich, 545 U. S. 1 (2005);

Lopez, supra; Hodel v. Virginia Surface Mining & Recla

mation Assn., Inc., 452 U. S. 264, 276 (1981)).

There is an important difference between the two ques

tions, but the Court does not make this distinction clear.

Raich, Lopez, and Hodel were all Commerce Clause cases.

Those precedents require a tangible link to commerce, not

a mere conceivable rational relation, as in Lee Optical.

“ ‘[S]imply because Congress may conclude that a particu

lar activity substantially affects interstate commerce does

not necessarily make it so.’ ” Lopez, supra, at 557, n. 2

(quoting Hodel, supra, at 311 (Rehnquist, J., concurring in

judgment)). The rational basis referred to in the Com

merce Clause context is a demonstrated link in fact, based

on empirical demonstration. While undoubtedly deferen

tial, this may well be different from the rational-basis test

as Lee Optical described it.

The Court relies on Sabri, supra, for its conclusion that

a “means-ends rationality” is all that is required for a

power to come within the Necessary and Proper Clause’s

reach. See ante, at 6. Sabri only refers to “means-ends

rationality” in a parenthetical describing the holding in

McCulloch v. Maryland, 4 Wheat. 316 (1819); it certainly

did not import the Lee Optical rational-basis test into this

4 UNITED STATES v. COMSTOCK

KENNEDY, J., concurring in judgment

arena through such a parenthetical. See Sabri, supra, at

612 (THOMAS, J., concurring in judgment) (“A statute can

have a ‘rational’ connection to an enumerated power with

out being obviously or clearly tied to that enumerated

power”). It should be remembered, moreover, that the

spending power is not designated as such in the Constitu

tion but rather is implied from the power to lay and collect

taxes and other specified exactions in order, among other

purposes, “to pay the Debts and provide for the common

Defence and general Welfare of the United States.” Art. I,

§8, cl. 1; see South Dakota v. Dole, 483 U. S. 203, 206

(1987). The limits upon the spending power have not been

much discussed, but if the relevant standard is parallel to

the Commerce Clause cases, then the limits and the ana

lytic approach in those precedents should be respected.

A separate concern stems from the Court’s explanation

of the Tenth Amendment. Ante, at 16. I had thought it a

basic principle that the powers reserved to the States

consist of the whole, undefined residuum of power remain

ing after taking account of powers granted to the National

Government. The Constitution delegates limited powers

to the National Government and then reserves the re

mainder for the States (or the people), not the other way

around, as the Court’s analysis suggests. And the powers

reserved to the States are so broad that they remain unde

fined. Residual power, sometimes referred to (perhaps

imperfectly) as the police power, belongs to the States and

the States alone.

It is correct in one sense to say that if the National

Government has the power to act under the Necessary and

Proper Clause then that power is not one reserved to the

States. But the precepts of federalism embodied in the

Constitution inform which powers are properly exercised

by the National Government in the first place. See Lopez,

514 U. S., at 580–581 (KENNEDY, J., concurring); see also

McCulloch, supra, at 421 (powers “consist[ent] with the

Cite as: 560 U. S. ____ (2010) 5

KENNEDY, J., concurring in judgment

letter and spirit of the constitution, are constitutional”). It

is of fundamental importance to consider whether essen

tial attributes of state sovereignty are compromised by the

assertion of federal power under the Necessary and Proper

Clause; if so, that is a factor suggesting that the power is

not one properly within the reach of federal power.

The opinion of the Court should not be interpreted to

hold that the only, or even the principal, constraints on

the exercise of congressional power are the Constitution’s

express prohibitions. The Court’s discussion of the Tenth

Amendment invites the inference that restrictions flowing

from the federal system are of no import when defining

the limits of the National Government’s power, as it pro

ceeds by first asking whether the power is within the

National Government’s reach, and if so it discards federal

ism concerns entirely.

These remarks explain why the Court ignores important

limitations stemming from federalism principles. Those

principles are essential to an understanding of the func

tion and province of the States in our constitutional

structure.

II

As stated at the outset, in this case Congress has acted

within its powers to ensure that an abrupt end to the

federal detention of prisoners does not endanger third

parties. Federal prisoners often lack a single home State

to take charge of them due to their lengthy prison stays, so

it is incumbent on the National Government to act. This

obligation, parallel in some respects to duties defined in

tort law, is not to put in motion a particular force (here an

unstable and dangerous person) that endangers others.

Having acted within its constitutional authority to detain

the person, the National Government can acknowledge a

duty to ensure that an abrupt end to the detention does

not prejudice the States and their citizens.

6 UNITED STATES v. COMSTOCK

KENNEDY, J., concurring in judgment

I would note, as the Court’s opinion does, that §4248

does not supersede the right and responsibility of the

States to identify persons who ought to be subject to civil

confinement. The federal program in question applies

only to those in federal custody and thus involves little

intrusion upon the ordinary processes and powers of the

States.

This is not a case in which the National Government

demands that a State use its own governmental system to

implement federal commands. See Printz v. United States,

521 U. S. 898 (1997). It is not a case in which the Na

tional Government relieves the States of their own pri

mary responsibility to enact laws and policies for the

safety and well being of their citizens. See United States

v. Morrison, 529 U. S. 598 (2000). Nor is it a case in which

the exercise of national power intrudes upon functions and

duties traditionally committed to the State. See Lopez,

supra, at 580–581 (KENNEDY, J., concurring).

Rather, this is a discrete and narrow exercise of author

ity over a small class of persons already subject to the

federal power. Importantly, §4248(d) requires the Attor

ney General to release any civil detainee “to the appropri

ate official of the State in which the person is domiciled or

was tried if such State will assume responsibility for his

custody, care, and treatment,” providing a strong assur

ance that the proffered reason for the legislation’s neces

sity is not a mere artifice.

With these observations, I concur in the judgment of the

Court.

Cite as: 560 U. S. ____ (2010) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1224

_________________

UNITED STATES, PETITIONER v. GRAYDON

EARL COMSTOCK, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[May 17, 2010]

JUSTICE ALITO, concurring in the judgment.

I am concerned about the breadth of the Court’s lan

guage, see ante, at 2–4 (KENNEDY, J., concurring in judg

ment), and the ambiguity of the standard that the Court

applies, see post, at 9 (THOMAS, J., dissenting), but I am

persuaded, on narrow grounds, that it was “necessary and

proper” for Congress to enact the statute at issue in this

case, 18 U. S. C. §4248, in order to “carr[y] into Execution”

powers specifically conferred on Congress by the Constitu

tion, see Art. I, §8, cl. 18.

Section 4248 was enacted to protect the public from

federal prisoners who suffer from “a serious mental ill

ness, abnormality, or disorder” and who, if released, would

have “serious difficulty in refraining from sexually violent

conduct or child molestation.” See §§4247(a)(5), (6),

4248(d). Under this law, if neither the State of a pris

oner’s domicile nor the State in which the prisoner was

tried will assume the responsibility for the prisoner’s

“custody, care, and treatment,” the Federal Government is

authorized to undertake that responsibility. §4248(d).

The statute recognizes that, in many cases, no State will

assume the heavy financial burden of civilly committing a

dangerous federal prisoner who, as a result of lengthy

federal incarceration, no longer has any substantial ties to

any State.

2 UNITED STATES v. COMSTOCK

ALITO, J., concurring in judgment

I entirely agree with the dissent that “[t]he Necessary

and Proper Clause empowers Congress to enact only those

laws that ‘carr[y] into Execution’ one or more of the federal

powers enumerated in the Constitution,” post, at 1, but

§4248 satisfies that requirement because it is a necessary

and proper means of carrying into execution the enumer

ated powers that support the federal criminal statutes

under which the affected prisoners were convicted. The

Necessary and Proper Clause provides the constitutional

authority for most federal criminal statutes. In other

words, most federal criminal statutes rest upon a congres

sional judgment that, in order to execute one or more of

the powers conferred on Congress, it is necessary and

proper to criminalize certain conduct, and in order to do

that it is obviously necessary and proper to provide for the

operation of a federal criminal justice system and a federal

prison system.

All of this has been recognized since the beginning of

our country. The First Congress enacted federal criminal

laws,1 created federal law enforcement and prosecutorial

positions,2 established a federal court system,3 provided

for the imprisonment of persons convicted of federal

crimes,4 and gave United States marshals the responsibil

——————

1 See, e.g., ch. 9, 1 Stat. 112 (“An Act for the Punishment of certain

Crimes against the United States”).

2 Ch. 20, §35, id., at 92 (“[T]here shall be appointed in each district a

meet person learned in the law to act as attorney for the United States

in such district, . . . whose duty it shall be to prosecute in such district

all delinquents for crimes and offences, cognizable under the authority

of the United States”).

3 §1, id., at 73 (“An Act to establish the Judicial Courts of the United

States”).

4 See, e.g., §9, id., at 76–77 (providing that the federal district courts

shall have exclusive jurisdiction over “all crimes and offences that shall

be cognizable under the authority of the United States, . . . where no

other punishment than whipping, not exceeding thirty stripes, a fine

not exceeding one hundred dollars, or a term of imprisonment not

Cite as: 560 U. S. ____ (2010) 3

ALITO, J., concurring in judgment

ity of securing federal prisoners.5

The only additional question presented here is whether,

in order to carry into execution the enumerated powers on

which the federal criminal laws rest, it is also necessary

and proper for Congress to protect the public from dangers

created by the federal criminal justice and prison systems.

In my view, the answer to that question is “yes.” Just as it

is necessary and proper for Congress to provide for the

apprehension of escaped federal prisoners, it is necessary

and proper for Congress to provide for the civil commit

ment of dangerous federal prisoners who would otherwise

escape civil commitment as a result of federal imprison

ment.

Some years ago, a distinguished study group created by

the Judicial Conference of the United States found that, in

a disturbing number of cases, no State was willing to

assume the financial burden of providing for the civil

commitment of federal prisoners who, if left at large after

the completion of their sentences, would present a danger

to any communities in which they chose to live or visit.

See ante, at 11; Greenwood v. United States, 350 U. S. 366,

373–374 (1956). These federal prisoners, having been held

——————

exceeding six months, is to be inflicted”); see also J. Roberts, The

Federal Bureau of Prisons: Its Mission, Its History, and Its Partnership

With Probation and Pretrial Services, 61 Fed. Probation 53 (1997)

(explaining that federal prisoners were originally housed in state and

county facilities on a contract basis).

5 See ch. 20, §27, 1 Stat. 87 (“[A] marshal shall be appointed in and

for each district for the term of four years, . . . whose duty it shall be to

attend the district and circuit courts when sitting therein, . . . [a]nd to

execute throughout the district, all lawful precepts directed to him, and

issued under the authority of the United States”); id., at 88 (“[T]he

marshal shall be held answerable for the delivery to his successor of all

prisoners which may be in his custody at the time of his removal, or

when the term for which he is appointed shall expire, and for that

purpose may retain such prisoners in his custody until his successor

shall be appointed and qualified as the law directs”).

4 UNITED STATES v. COMSTOCK

ALITO, J., concurring in judgment

for years in a federal prison, often had few ties to any

State; it was a matter of speculation where they would

choose to go upon release; and accordingly no State was

enthusiastic about volunteering to shoulder the burden of

civil commitment.

The Necessary and Proper Clause does not give Con

gress carte blanche. Although the term “necessary” does

not mean “absolutely necessary” or indispensable, the

term requires an “appropriate” link between a power

conferred by the Constitution and the law enacted by

Congress. See McCulloch v. Maryland, 4 Wheat. 316, 415

(1819). And it is an obligation of this Court to enforce

compliance with that limitation. Id., at 423.

The law in question here satisfies that requirement.

This is not a case in which it is merely possible for a court

to think of a rational basis on which Congress might have

perceived an attenuated link between the powers underly

ing the federal criminal statutes and the challenged civil

commitment provision. Here, there is a substantial link to

Congress’ constitutional powers.

For this reason, I concur in the judgment that Congress

had the constitutional authority to enact 18 U. S. C.

§4248.

Cite as: 560 U. S. ____ (2010) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1224

_________________

UNITED STATES, PETITIONER v. GRAYDON

EARL COMSTOCK, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[May 17, 2010]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins in

all but Part III–A–1–b, dissenting.

The Court holds today that Congress has power under

the Necessary and Proper Clause to enact a law authoriz

ing 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. 18

U. S. C. §4248(a). I disagree. The Necessary and Proper

Clause empowers Congress to enact only those laws that

“carr[y] into Execution” one or more of the federal powers

enumerated in the Constitution. Art. I, §8, cl. 18. Because

§4248 “Execut[es]” no enumerated power, I must respect

fully dissent.

I

“As every schoolchild learns, our Constitution estab

lishes a system of dual sovereignty between the States and

the Federal Government.” Gregory v. Ashcroft, 501 U. S.

452, 457 (1991). In our system, the Federal Government’s

powers are enumerated, and hence limited. See, e.g.,

McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) (“This

government is acknowledged by all to be one of enumer

ated powers”). Thus, Congress has no power to act unless

the Constitution authorizes it to do so. United States v.

Morrison, 529 U. S. 598, 607 (2000) (“Every law enacted

2 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

by Congress must be based on one or more of its powers

enumerated in the Constitution”). The States, in turn, are

free to exercise all powers that the Constitution does not

withhold from them. Amdt. 10 (“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”).1 This constitutional structure establishes

different default rules for Congress and the States: Con

gress’ powers are “few and defined,” while those that

belong to the States “remain . . . numerous and indefinite.”

The Federalist No. 45, p. 328 (B. Wright ed. 1961) (J.

Madison).

The Constitution plainly sets forth the “few and defined”

powers that Congress may exercise. Article I “vest[s]” in

Congress “[a]ll legislative Powers herein granted,” §1, and

carefully enumerates those powers in §8. The final clause

of §8, the Necessary and Proper Clause, authorizes Con

gress “[t]o make all Laws which shall be necessary and

proper for carrying into 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.” Art. I, §8, cl. 18. As the Clause’s place

ment at the end of §8 indicates, the “foregoing Powers” are

those granted to Congress in the preceding clauses of that

section. The “other Powers” to which the Clause refers are

those “vested” in Congress and the other branches by

other specific provisions of the Constitution.

Chief Justice Marshall famously summarized Congress’

authority under the Necessary and Proper Clause in

McCulloch, which has stood for nearly 200 years as this

——————

1 “With this careful last phrase, the [Tenth] Amendment avoids tak

ing any position on the division of power between the state govern

ments and the people of the States: It is up to the people of each State

to determine which ‘reserved’ powers their state government may

exercise.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 848

(1995) (THOMAS, J., dissenting).

Cite as: 560 U. S. ____ (2010) 3

THOMAS, J., dissenting

Court’s definitive interpretation of that text:

“Let the end be legitimate, let it be within the scope of

the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” 4 Wheat., at 421.

McCulloch’s summation is descriptive of the Clause

itself, providing that federal legislation is a valid exercise

of Congress’ authority under the Clause if it satisfies a

two-part test: First, the law must be directed toward a

“legitimate” end, which McCulloch defines as one “within

the scope of the [C]onstitution”—that is, the powers ex

pressly delegated to the Federal Government by some

provision in the Constitution. Second, there must be a

necessary and proper fit between the “means” (the federal

law) and the “end” (the enumerated power or powers) it is

designed to serve. Ibid. McCulloch accords Congress a

certain amount of discretion in assessing means-end fit

under this second inquiry. The means Congress selects

will be deemed “necessary” if they are “appropriate” and

“plainly adapted” to the exercise of an enumerated power,

and “proper” if they are not otherwise “prohibited” by the

Constitution and not “[in]consistent” with its “letter and

spirit.” Ibid.

Critically, however, McCulloch underscores the linear

relationship the Clause establishes between the two in

quiries: Unless the end itself is “legitimate,” the fit be

tween means and end is irrelevant. In other words, no

matter how “necessary” or “proper” an Act of Congress

may be to its objective, Congress lacks authority to legis

late if the objective is anything other than “carrying into

Execution” one or more of the Federal Government’s enu

merated powers. Art. I, §8, cl. 18.

This limitation was of utmost importance to the Fram

ers. During the State ratification debates, Anti

4 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

Federalists expressed concern that the Necessary and

Proper Clause would give Congress virtually unlimited

power. See, e.g., Essays of Brutus, in 2 The Complete

Anti-Federalist 421 (H. Storing ed. 1981). Federalist

supporters of the Constitution swiftly refuted that charge,

explaining that the Clause did not grant Congress any

freestanding authority, but instead made explicit what

was already implicit in the grant of each enumerated

power. Referring to the “powers declared in the Constitu

tion,” Alexander Hamilton noted that “it is expressly to

execute these powers that the sweeping clause . . . author

izes the national legislature to pass all necessary and

proper laws.” The Federalist No. 33, at 245. James Madi

son echoed this view, stating that “the sweeping clause . . .

only extend[s] to the enumerated powers.” 3 J. Elliot, The

Debates in the Several State Conventions on the Adoption

of the Federal Constitution 455 (2d ed. 1854) (hereinafter

Elliot). Statements by delegates to the state ratification

conventions indicate that this understanding was widely

held by the founding generation. E.g., id., at 245–246

(statement of George Nicholas) (“Suppose [the Necessary

and Proper Clause] had been inserted, at the end of every

power, that they should have power to make laws to carry

that power into execution; would that have increased their

powers? If, therefore, it could not have increased their

powers, if placed at the end of each power, it cannot in

crease them at the end of all”).2

——————

2 See also 4 Elliot 141 (2d ed. 1836) (statement of William Maclaine)

(“This clause specifies that [Congress] shall make laws to carry into

execution all the powers vested by this Constitution, consequently they

can make no laws to execute any other power”); 2 id., at 468 (statement

of James Wilson) (“[W]hen it is said that Congress shall have power to

make all laws which shall be necessary and proper, those words are

limited and defined by the following, ‘for carrying into execution the

foregoing powers.’ [The Clause] is saying no more than that the powers

we have already particularly given, shall be effectually carried into

execution”); Barnett, The Original Meaning of the Necessary and

Cite as: 560 U. S. ____ (2010) 5

THOMAS, J., dissenting

Roughly 30 years after the Constitution’s ratification,

McCulloch firmly established this understanding in our

constitutional jurisprudence. 4 Wheat., at 421, 423. Since

then, our precedents uniformly have maintained that the

Necessary and Proper Clause is not an independent fount

of congressional authority, but rather “a caveat that Con

gress possesses all the means necessary to carry out the

specifically granted ‘foregoing’ powers of §8 ‘and all other

Powers vested by this Constitution.’ ” Kinsella v. United

States ex rel. Singleton, 361 U. S. 234, 247 (1960); Carter

v. Carter Coal Co., 298 U. S. 238, 291 (1936); see Alden v.

Maine, 527 U. S. 706, 739 (1999); Martin v. Hunter’s Les

see, 1 Wheat. 304, 326 (1816); see also Gonzales v. Raich,

545 U. S. 1, 39 (2005) (SCALIA, J., concurring in judgment)

(stating that, although the Clause “empowers Congress to

enact laws . . . that are not within its authority to enact in

isolation,” those laws must be “in effectuation of [Con

gress’] enumerated powers” (citing McCulloch, supra, at

421–422)).

II

Section 4248 establishes a federal civil-commitment

regime for certain persons in the custody of the Federal

Bureau of Prisons (BOP).3 If the Attorney General dem

onstrates to a federal court by clear and convincing evi

dence that a person subject to the statute is “sexually

——————

Proper Clause, 6 U. Pa. J. Const. L. 183, 185–186 (2003); Lawson &

Granger, The “Proper” Scope of Federal Power: A Jurisdictional Inter

pretation of the Sweeping Clause, 43 Duke L. J. 267, 274–275, and

n. 24 (1993).

3 The statute authorizes the Attorney General to petition a federal

court to order the commitment of a person in BOP custody (1) who has

been convicted of a federal crime and is serving a federal prison sen

tence therefor, (2) who has been found mentally incompetent to stand

trial, or (3) “against whom all federal criminal charges have been

dismissed solely for reasons related to his mental condition.” 18

U. S. C. §4248(a).

6 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

dangerous,”4 a court may order the person committed until

he is no longer a risk “to others,” even if that does not

occur until after his federal criminal sentence has expired

or the statute of limitations on the federal charge against

him has run. §§4248(a), (d)–(e).

No enumerated power in Article I, §8, expressly dele

gates to Congress the power to enact a civil-commitment

regime for sexually dangerous persons, nor does any other

provision in the Constitution vest Congress or the other

branches of the Federal Government with such a power.

Accordingly, §4248 can be a valid exercise of congressional

authority only if it is “necessary and proper for carrying

into Execution” one or more of those federal powers actu

ally enumerated in the Constitution.

Section 4248 does not fall within any of those powers.

The Government identifies no specific enumerated power

or powers as a constitutional predicate for §4248, and none

are readily discernable. Indeed, not even the Commerce

Clause—the enumerated power this Court has interpreted

most expansively, see, e.g., NLRB v. Jones & Laughlin

Steel Corp., 301 U. S. 1, 37 (1937)—can justify federal civil

detention of sex offenders. Under the Court’s precedents,

Congress may not regulate noneconomic activity (such as

sexual violence) based solely on the effect such activity

may have, in individual cases or in the aggregate, on

interstate commerce. Morrison, 529 U. S., at 617–618;

United States v. Lopez, 514 U. S. 549, 563–567 (1995).

That limitation forecloses any claim that §4248 carries

into execution Congress’ Commerce Clause power, and the

——————

4 The Act defines a “sexually dangerous person” as one “who has en

gaged or attempted to engage in sexually violent conduct or child

molestation,” and “who is sexually dangerous to others.” §4247(a)(5).

It further defines “sexually dangerous to others” to mean a person who

“suffers from a serious mental illness” such that he would “have serious

difficulty in refraining from sexually violent conduct or child molesta

tion if released.” §4247(a)(6).

Cite as: 560 U. S. ____ (2010) 7

THOMAS, J., dissenting

Government has never argued otherwise, see Tr. of Oral

Arg. 21–22.5

This Court, moreover, consistently has recognized that

the power to care for the mentally ill and, where neces

sary, the power “to protect the community from the dan

gerous tendencies of some” mentally ill persons, are

among the numerous powers that remain with the States.

Addington v. Texas, 441 U. S. 418, 426 (1979). As a conse

quence, we have held that States may “take measures to

restrict the freedom of the dangerously mentally ill”—

including those who are sexually dangerous—provided

that such commitments satisfy due process and other

constitutional requirements. Kansas v. Hendricks, 521

U. S. 346, 363 (1997).

Section 4248 closely resembles the involuntary civil

commitment laws that States have enacted under their

parens patriae and general police powers. Indeed, it is

clear, on the face of the Act and in the Government’s

arguments urging its constitutionality, that §4248 is

aimed at protecting society from acts of sexual violence,

not toward “carrying into Execution” any enumerated

power or powers of the Federal Government. See Adam

Walsh Child Protection and Safety Act of 2006, 120 Stat.

587 (entitled “[a]n Act [t]o protect children from sexual

exploitation and violent crime”), §102, id., at 590 (state

ment of purpose declaring that the Act was promulgated

“to protect the public from sex offenders”); Brief for United

States 38–39 (asserting the Federal Government’s power

to “protect the public from harm that might result upon

these prisoners’ release, even when that harm might arise

from conduct that is otherwise beyond the general regula

tory powers of the federal government” (emphasis added)).

——————

5 For the reasons explained in Part III–A–2, infra, the enumerated

power that justifies a particular defendant’s criminal arrest or convic

tion cannot justify his subsequent civil detention under §4248.

8 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

To be sure, protecting society from violent sexual of

fenders is certainly an important end. Sexual abuse is a

despicable act with untold consequences for the victim

personally and society generally. See, e.g., Kennedy v.

Louisiana, 554 U. S. ___, ___, n. 2, (2008) (ALITO, J., dis

senting) (slip op., at 9, n. 2, 22–23). But the Constitution

does not vest in Congress the authority to protect society

from every bad act that might befall it.6 New York v.

United States, 505 U. S. 144, 157 (1992) (“ ‘The question is

not what power the Federal Government ought to have

but what powers in fact have been given by the people’ ”

(quoting United States v. Butler, 297 U. S. 1, 63 (1936)).

In my view, this should decide the question. Section

4248 runs afoul of our settled understanding of Congress’

power under the Necessary and Proper Clause. Congress

may act under that Clause only when its legislation

“carr[ies] into Execution” one of the Federal Government’s

enumerated powers. Art. I, §8, cl. 18. Section 4248 does

not execute any enumerated power. Section 4248 is there

fore unconstitutional.

III

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].” Ante, at 22. The Court’s

newly minted test cannot be reconciled with the Clause’s

plain text or with two centuries of our precedents inter

——————

6 The absence of a constitutional delegation of general police power to

Congress does not leave citizens vulnerable to the harms Congress

seeks to regulate in §4248 because, as recent legislation indicates, the

States have the capacity to address the threat that sexual offenders

pose. See n. 15, infra.

Cite as: 560 U. S. ____ (2010) 9

THOMAS, J., dissenting

preting it. It also raises more questions than it answers.

Must each of the five considerations exist before the Court

sustains future federal legislation as proper exercises of

Congress’ Necessary and Proper Clause authority? What

if the facts of a given case support a finding of only four

considerations? Or three? And if three or four will suffice,

which three or four are imperative? At a minimum, this

shift from the two-step McCulloch framework to this five

consideration approach warrants an explanation as to why

McCulloch is no longer good enough and which of the five

considerations will bear the most weight in future cases,

assuming some number less than five suffices. (Or, if not,

why all five are required.) The Court provides no answers

to these questions.

A

I begin with the first and last “considerations” in the

Court’s inquiry. Ante, at 5. The Court concludes that

§4248 is a valid exercise of Congress’ Necessary and

Proper Clause authority because that authority is “broad,”

ibid., and because “the links between §4248 and an enu

merated Article I power are not too attenuated,” ante, at

18. In so doing, the Court first inverts, then misapplies,

McCulloch’s straightforward two-part test.

1

a

First, the Court describes Congress’ lawmaking power

under the Necessary and Proper Clause as “broad,” relying

on precedents that have upheld federal laws under the

Clause after finding a “ ‘rationa[l]’ ” fit between the law

and an enumerated power. Ante, at 6 (quoting Sabri v.

United States, 541 U. S. 600, 605 (2004)). It is true that

this Court’s precedents allow Congress a certain degree of

latitude in selecting the means for “carrying into Execu

10 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

tion” an end that is “legitimate.”7 See, e.g., Jinks v. Rich

land County, 538 U. S. 456, 462–463 (2003) (citing

McCulloch, 4 Wheat., at 417, 421). But in citing these

cases, the Court puts the cart before the horse: The fit

between means and ends matters only if the end is in fact

legitimate—i.e., only if it is one of the Federal Govern

ment’s enumerated powers.

By starting its inquiry with the degree of deference

owed to Congress in selecting means to further a legiti

mate end, the Court bypasses McCulloch’s first step and

fails carefully to examine whether the end served by §4248

is actually one of those powers. See Part III–A–2, infra.

b

Second, instead of asking the simple question of what

enumerated power §4248 “carr[ies] into Execution” at

McCulloch’s first step, the Court surveys other laws Con

gress has enacted and concludes that, because §4248 is

related to those laws, the “links” between §4248 and an

enumerated power are not “too attenuated”; hence, §4248

is a valid exercise of Congress’ Necessary and Proper

Clause authority. Ante, at 18. This unnecessarily con

fuses the analysis and, if followed to its logical extreme,

would result in an unwarranted expansion of federal

——————

7 JUSTICE KENNEDY concludes that the Necessary and Proper Clause

requires something beyond rational-basis scrutiny when assessing the

fit between an enumerated power and the means Congress selects to

execute it. Ante, at 2–4 (opinion concurring in judgment). Other

arguments regarding the degree of fit between means and end have

been lodged elsewhere. See, e.g., Gonzales v. Raich, 545 U. S. 1, 61

(2005) (THOMAS, J., dissenting) (arguing that, for a law to be within the

Necessary and Proper Clause, it must bear an “ ‘obvious, simple, and

direct relation’ ” to an exercise of Congress’ enumerated powers and

must not subvert basic principles of federalism and dual sovereignty).

But I find that debate beside the point here, because it concerns the

analysis employed at McCulloch’s second step, see McCulloch v. Mary

land, 4 Wheat. 316 (1819), while the Court’s decision today errs by

skipping the first.

Cite as: 560 U. S. ____ (2010) 11

THOMAS, J., dissenting

power.

The Court observes that Congress has the undisputed

authority to “criminalize conduct” that interferes with

enumerated powers; to “imprison individuals who engage

in that conduct”; to “enact laws governing [those] prisons”;

and to serve as a “custodian of its prisoners.” Ante, at 9,

14. From this, the Court assumes that §4248 must also be

a valid exercise of congressional power because it is “ ‘rea

sonably adapted’ ” to those exercises of Congress’ inciden

tal—and thus unenumerated—authorities. See ante, at 15

(concluding that “§4248 is ‘reasonably adapted’ to Con

gress’ power to act as a responsible federal custodian”

(citation omitted)); ante, at 22 (concluding that “the stat

ute 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 viola

tors, 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 oth

ers”). But that is not the question. The Necessary and

Proper Clause does not provide Congress with authority to

enact any law simply because it furthers other laws Con

gress has enacted in the exercise of its incidental author

ity; the Clause plainly requires a showing that every

federal statute “carr[ies] into Execution” one or more of

the Federal Government’s enumerated powers.8

——————

8 McCulloch makes this point clear. As the Court notes, ante, at 18–

19, McCulloch states, in discussing a hypothetical, that from Congress’

enumerated power to establish post offices and post roads “has been

inferred the power and duty of carrying the mail,” and, “from this

implied power, has again been inferred the right to punish those who

steal letters from the post office, or rob the mail.” 4 Wheat., at 417.

Contrary to the Court’s interpretation, this dictum does not suggest

that the relationship between Congress’ implied power to punish postal

crimes and its implied power to carry the mail is alone sufficient to

satisfy review under the Necessary and Proper Clause. Instead,

McCulloch directly links the constitutionality of the former to Congress’

12 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

Federal laws that criminalize conduct that interferes

with enumerated powers, establish prisons for those who

engage in that conduct, and set rules for the care and

treatment of prisoners awaiting trial or serving a criminal

sentence satisfy this test because each helps to “carr[y]

into Execution” the enumerated powers that justify a

criminal defendant’s arrest or conviction. For example,

Congress’ enumerated power “[t]o establish Post Offices

and post Roads,” Art. I, §8, cl. 7, would lack force or practi

cal effect if Congress lacked the authority to enact crimi

nal laws “to punish those who steal letters from the post

office, or rob the mail.” McCulloch, supra, at 417. Simi

larly, that enumerated power would be compromised if

there were no prisons to hold persons who violate those

laws, or if those prisons were so poorly managed that

prisoners could escape or demand their release on the

grounds that the conditions of their confinement violate

their constitutional rights, at least as we have defined

them. See, e.g., Estelle v. Gamble, 429 U. S. 97 (1976).

——————

enumerated power “ ‘to establish post offices and post roads.’ ” Ibid.

(explaining that “the right to . . . punish those who rob [the mail] is not

indispensably necessary to the establishment of a post office and post

road,” but is “essential to the beneficial exercise of th[at] power”). More

importantly, McCulloch’s holding, as well as the holdings of this Court’s

subsequent decisions, make plain that congressional action is valid

under the Necessary and Proper Clause only if it carries into execution

one or more enumerated powers. Id., at 422 (upholding Congress’

incorporation of a bank because it was a “means . . . to be employed

only for the purpose of carrying into execution the given powers” (em

phasis added)); see 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 correspond

ing authority under the Necessary and Proper Clause to see to it that

taxpayer dollars appropriated under that power are in fact spent for the

general welfare” (emphasis added; citations omitted)); Stewart v. Kahn,

11 Wall. 493, 506–507 (1871) (“The power to pass [the Act in question]

is necessarily implied from the powers to make war and suppress

insurrections” (emphasis added) (referring to Art. I, §8, cls. 11 and 15)).

Cite as: 560 U. S. ____ (2010) 13

THOMAS, J., dissenting

Civil detention under §4248, on the other hand, lacks any

such connection to an enumerated power.

2

After focusing on the relationship between §4248 and

several of Congress’ implied powers, the Court finally

concludes that the civil detention of a “sexually dangerous

person” under §4248 carries into execution the enumer

ated power that justified that person’s arrest or conviction

in the first place. In other words, the Court analogizes

§4248 to federal laws that authorize prison officials to care

for federal inmates while they serve sentences or await

trial. But while those laws help to “carr[y] into Execution”

the enumerated power that justifies the imposition of

criminal sanctions on the inmate, §4248 does not bear that

essential characteristic for three reasons.

First, the statute’s definition of a “sexually dangerous

person” contains no element relating to the subject’s

crime. See §§4247(a)(5)–(6). It thus does not require a

federal court to find any connection between the reasons

supporting civil commitment and the enumerated power

with which that person’s criminal conduct interfered. As a

consequence, §4248 allows a court to civilly commit an

individual without finding that he was ever charged with

or convicted of a federal crime involving sexual violence.

§§4248(a), (d). That possibility is not merely hypothetical:

The Government concedes that nearly 20% of individuals

against whom §4248 proceedings have been brought fit

this description.9 Tr. of Oral Arg. 23–25.

Second, §4248 permits the term of federal civil commit

ment to continue beyond the date on which a convicted

——————

9 The statute does require the court to find that the subject “has en

gaged or attempted to engage in sexually violent conduct or child

molestation,” §4247(a)(5), but that factual predicate can be established

by a state conviction, or by clear and convincing evidence that the

person committed a sex crime for which he was never charged.

14 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

prisoner’s sentence expires or the date on which the stat

ute of limitations on an untried defendant’s crime has run.

The statute therefore authorizes federal custody over a

person at a time when the Government would lack juris

diction to detain him for violating a criminal law that

executes an enumerated power.

The statute this Court upheld in Greenwood v. United

States, 350 U. S. 366 (1956), provides a useful contrast.

That statute authorized the Federal Government to exer

cise civil custody over a federal defendant declared men

tally unfit to stand trial only “ ‘until the accused shall be

mentally competent to stand trial or until the pending

charges against him are disposed of according to law.’ ”

Id., at 368, n. 2 (quoting 18 U. S. C. §4246 (1952 ed.)).

Thus, that statute’s “end” reasonably could be interpreted

as preserving the Government’s power to enforce a crimi

nal law against the accused. Section 4248 (2006 ed.),

however, authorizes federal detention of a person even

after the Government loses the authority to prosecute him

for a federal crime.

Third, the definition of a “sexually dangerous person”

relevant to §4248 does not require the court to find that

the person is likely to violate a law executing an enumer

ated power in the future. Although the Federal Govern

ment has no express power to regulate sexual violence

generally, Congress has passed a number of laws proscrib

ing such conduct in special circumstances. All of these

statutes contain jurisdictional elements that require a

connection to one of Congress’ enumerated powers—such

as interstate commerce, e.g., §2252(a)(2)—or that limit the

statute’s coverage to jurisdictions in which Congress has

plenary authority, e.g., §2243(a). Section 4248, by con

trast, authorizes civil commitment upon a showing that

the person is “sexually dangerous,” and presents a risk “to

others,” §4247(a)(5). It requires no evidence that this

sexually dangerous condition will manifest itself in a way

Cite as: 560 U. S. ____ (2010) 15

THOMAS, J., dissenting

that interferes with a federal law that executes an enu

merated power or in a geographic location over which

Congress has plenary authority.10

In sum, the enumerated powers that justify a criminal

defendant’s arrest or conviction cannot justify his subse

quent civil detention under §4248.

B

The remaining “considerations” in the Court’s five-part

inquiry do not alter this conclusion.

1

First, in a final attempt to analogize §4248 to laws that

authorize the Federal Government to provide care and

treatment to prisoners while they await trial or serve a

criminal sentence, the Court cites the Second Restatement

of Torts for the proposition that the Federal Government

has a “custodial interest” in its prisoners, ante, at 22, and,

thus, a broad “constitutional power to act in order to pro

tect nearby (and other) communities” from the dangers

——————

10 The Constitution grants Congress plenary authority over certain

jurisdictions where no other sovereign exists, including the District of

Columbia, Art. I, §8, cl. 17, and federal territories, Art. IV, §3, cl. 2. In

addition, Congress has “broad general powers to legislate in respect to

Indian tribes,” United States v. Lara, 541 U. S. 193, 200 (2004) (citing

Art. I, §8, cl. 3; Art. II, §2, cl. 2), including certain special responsibili

ties over “Indian country,” 18 U. S. C. §1151. Although the Necessary

and Proper Clause did not authorize Congress to enact §4248, I do not

rule out the possibility that Congress could provide for the civil com

mitment of individuals who enter federal custody as a result of acts

committed in these jurisdictions. See, e.g., United States v. Cohen, 733

F. 2d 128 (CADC 1984) (en banc) (upholding civil commitment of a

defendant under a District of Columbia statute authorizing the institu

tionalization of persons acquitted by reason of insanity). Although two

of the respondents in this case were either charged with or convicted of

criminal acts committed in such jurisdictions, see ante, at 3; 507

F. Supp. 2d 522, 527, and n. 2 (EDNC 2007), that question is not

presented here because §4248 does not make that fact essential to an

individual’s placement in civil detention.

16 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

they may pose,11 ante, at 14. That citation is puzzling

because federal authority derives from the Constitution,

not the common law. In any event, nothing in the Re

statement suggests that a common-law custodian has the

powers that Congress seeks here. While the Restatement

provides that a custodian has a duty to take reasonable

steps to ensure that a person in his care does not cause

“bodily harm to others,” 2 Restatement (Second) of Torts

§319, p. 129 (1963–1964), that duty terminates once the

legal basis for custody expires:

“There is no duty so to control the conduct of a third

person as to prevent him from causing physical harm

to another unless

“(a) a special relation exists between the actor and

the third person which imposes a duty upon the actor

to control the third person’s conduct, or

“(b) a special relation exists between the actor and

the other which gives to the other a right to protec

tion.” Id., §315, at 122.

Once the Federal Government’s criminal jurisdiction over

a prisoner ends, so does any “special relation[ship]” be

tween the Government and the former prisoner.12

——————

11 The Court also cites Youngberg v. Romeo, 457 U. S. 307 (1982), but

that case lends even less support than the Restatement. In Youngberg,

an inmate at a state hospital argued that hospital workers violated his

constitutional rights when they applied restraints to keep him in his

bed at the hospital infirmary. Id., at 310–311. In assessing that claim,

this Court noted that the hospital had a responsibility to “protect its

residents” from the danger of violence. Id., at 320 (emphasis added).

The Court never suggested that this responsibility extended to “nearby

(and other) communities.” Ante, at 14. Moreover, the hospital was a

state institution. Nothing in Youngberg suggests that the Federal

Government can detain a person beyond the date on which its criminal

jurisdiction expires for fear that he may later pose a threat to the

surrounding community.

12 Federal law permits a sentencing court to order that a defendant be

placed on a term of “supervised release” after his term of imprisonment

Cite as: 560 U. S. ____ (2010) 17

THOMAS, J., dissenting

For this reason, I cannot agree with JUSTICE ALITO that

§4248 is a necessary and proper incident of Congress’

power “to protect the public from dangers created by the

federal criminal justice and prison systems.” Ante, at 3

(concurring in judgment). A federal criminal defendant’s

“sexually dangerous” propensities are not “created by” the

fact of his incarceration or his relationship with the fed

eral prison system. The fact that the Federal Government

has the authority to imprison a person for the purpose of

punishing him for a federal crime—sex-related or other

wise—does not provide the Government with the addi

tional power to exercise indefinite civil control over that

person.13

2

Second, the Court describes §4248 as a “modest” expan

sion on a statutory framework with a long historical pedi

gree. Ante, at 9. Yet even if the antiquity of a practice

could serve as a substitute for its constitutionality—and

the Court admits that it cannot, ibid.—the Court over

states the relevant history.

Congress’ first foray into this general area occurred in

1855, when it established St. Elizabeth’s Hospital to pro

vide treatment to “insane” persons in the military and the

——————

is complete. 18 U. S. C. §§3583, 3624(e). Contrary to the Government’s

suggestion, federal authority to exercise control over individuals

serving terms of “supervised release” does not derive from the Govern

ment’s “relationship” with the prisoner, see Brief for United States 38,

but from the original criminal sentence itself. Supervised release thus

serves to execute the enumerated power that justifies the defendant’s

statute of conviction, just like any other form of punishment imposed at

sentencing.

13 The fact that Congress has the authority to “provide for the appre

hension of escaped federal prisoners,” see ante, at 3 (ALITO, J., concur

ring in judgment), does not change this conclusion. That authority

derives from Congress’ power to vindicate the enumerated power with

which the escaped defendant’s crime of conviction interfered, not a

freestanding police power.

18 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

District of Columbia. Act of Mar. 3, 1855, 10 Stat. 682.

But Congress was acting pursuant to enumerated powers

when it took this step. See Art. I, §8, cl. 17 (granting

Congress plenary authority over the District of Columbia);

Art. I, §8, cl. 14 (authorizing Congress to “make Rules for

the Government and Regulation of the land and naval

Forces”). This enactment therefore provides no support

for Congress’ claimed power to detain sexually dangerous

persons without an otherwise valid basis for jurisdiction.

Later, Congress provided for the federal civil commit

ment of “insane” persons charged with or convicted of a

federal crime. Act of Feb. 7, 1857, §§5–6, 11 Stat. 158; see

17 Op. Atty. Gen. 211, 212–213 (1881); Act of June 23,

1874, ch. 465, 18 Stat. 251; Act of Aug. 7, 1882, 22 Stat.

330. As the Court explains, however, these statutes did

not authorize federal custody beyond the completion of the

“term” of federal “imprisonment,” §§2–3, 18 Stat. 252; see

35 Op. Atty. Gen. 366, 368 (1927); 30 Op. Atty. Gen. 569,

570–571 (1916); Act of May 13, 1930, ch. 254, §6, 46 Stat.

271, and thus shed no light on the question presented

here.

In 1949, Congress enacted a more comprehensive re

gime, authorizing the civil commitment of mentally ill

persons in BOP custody. See 18 U. S. C. §§4246, 4247

(1952 ed.). This Court addressed that regime in Green

wood, but never endorsed the proposition that the Federal

Government could rely on that statute to detain a person

in the absence of a pending criminal charge or ongoing

criminal sentence.14

——————

14 In addition, at least some courts questioned the Federal Govern

ment’s power to detain a person in such circumstances. See Dixon v.

Steele, 104 F. Supp. 904, 908 (WD Mo. 1952) (holding that the Federal

Government lacked authority to detain an individual declared mentally

unfit to stand trial once it was determined that he was unlikely to

recover in time to be prosecuted); Higgins v. United States, 205 F. 2d

650, 653 (CA9 1953) (avoiding this constitutional question by interpret

Cite as: 560 U. S. ____ (2010) 19

THOMAS, J., dissenting

As already noted, Greenwood upheld the commitment of

a federal defendant declared unfit to stand trial on the

narrow ground that the Government’s criminal jurisdic

tion over the defendant—its “power to prosecute for fed

eral offenses—[wa]s not exhausted,” but rather “per

sist[ed]” in the form of a “pending indictment.” 350 U. S.,

at 375; see supra, at 16. The Court was careful to state

that “[t]his commitment, and therefore the legislation

authorizing commitment in the context of this case, in

volve[d] an assertion of authority” within “congressional

power under the Necessary and Proper Clause.” Green

wood, 350 U. S., at 375 (emphasis added). But it painstak

ingly limited its holding to “the narrow constitutional

issue raised by th[at] order of commitment.” Ibid.

The historical record thus supports the Federal Gov

ernment’s authority to detain a mentally ill person against

whom it has the authority to enforce a criminal law. But

it provides no justification whatsoever for reading the

Necessary and Proper Clause to grant Congress the power

to authorize the detention of persons without a basis for

federal criminal jurisdiction.

3

Finally, the Court offers two arguments regarding

§4248’s impact on the relationship between the Federal

Government and the States. First, the Court and both

concurrences suggest that Congress must have had the

power to enact §4248 because a long period of federal

incarceration might “seve[r]” a sexually dangerous pris

oner’s “claim to ‘legal residence’ ” in any particular State,

ante, at 15 (opinion of the Court), thus leaving the pris

oner without any “home State to take charge” of him upon

release, ante, at 5 (KENNEDY, J., concurring in judgment);

——————

ing the statute to permit federal civil detention only for a period rea

sonably related to a criminal prosecution); Wells v. Attorney General of

United States, 201 F. 2d 556, 560 (CA10 1953) (same).

20 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

see ante, at 1 (ALITO, J., concurring in judgment) (noting

that many federal prisoners, “as a result of lengthy federal

incarceration, no longer ha[ve] any substantial ties to any

State”). I disagree with the premise of that argument. As

an initial matter, States plainly have the constitutional

authority to “take charge” of a federal prisoner released

within their jurisdiction. See Amdt. 10 (stating that pow

ers not delegated to the Federal Government are “re

served” to the States, and to the people). In addition, the

assumption that a State knowingly would fail to exercise

that authority is, in my view, implausible. The Govern

ment stated at oral argument that its “default position” is

to release a federal prisoner to the State in which he was

convicted, Tr. of Oral Arg. 15; see also 28 CFR §2.33(b)

(2009), and neither the Court nor the concurrences argue

that a State has the power to refuse such a person domi

cile within its borders. Thus, they appear to assume that,

in the absence of 18 U. S. C. §4248, a State would take no

action when informed by the BOP that a sexually danger

ous federal prisoner was about to be released within its

jurisdiction. In light of the plethora of state laws enacted

in recent decades to protect communities from sex offend

ers,15 the likelihood of such an occurrence seems quite

——————

15 As we have noted before, all 50 States have developed “some varia

tion” of a system “for mandatory registration of sex offenders and

corresponding community notification.” Smith v. Doe, 538 U. S. 84, 89–

90 (2003). In addition, several States have taken further steps; some

impose residency restrictions on sex offenders, see, e.g., Kennedy v.

Louisiana, 554 U. S. ___ , ___, n. 5 (2008) (ALITO, J., dissenting) (slip

op., at 11, n. 5) (collecting statutes), and, most relevant here, 22 States

have enacted involuntary civil-commitment laws substantially similar

to §4248, see Ariz. Rev. Stat. Ann. §36–3701 et seq. (West 2009); Cal.

Welf. & Inst. Code Ann. §6600 et seq. (West 1988 and Supp. 2010); Fla.

Stat. §394.910 et seq. (2007); Ill. Comp. Stat. Ann., ch. 725, §205 et seq.

(West 2008); Iowa Code §229A (2009); Kan. Stat. Ann. §59–29a01 et

seq. (2005 and 2008 Cum. Supp.); Mass. Gen. Laws, ch. 123A (West

2008); Minn. Stat. §253B (2008 and 2009 Supp.); Mo. Rev. Stat.

Cite as: 560 U. S. ____ (2010) 21

THOMAS, J., dissenting

remote. But even in the event a State made such a deci

sion, the Constitution assigns the responsibility for that

decision, and its consequences, to the state government

alone.

Next, the Court submits that §4248 does not upset the

balance of federalism or invade the States’ reserved pow

ers because it “requires accommodation of state interests”

by instructing the Attorney General to release a commit

ted person to the State in which he was domiciled or tried

if that State wishes to “ ‘assume . . . responsibility’ ” for

him. Ante, at 17 (quoting §4248(d)). This right of first

refusal is mere window dressing. Tr. of Oral Arg. 5 (“It is

not the usual course that the State does take responsibil

ity”). More importantly, it is an altogether hollow assur

ance that §4248 preserves the principle of dual sover

eignty—the “letter and spirit” of the Constitution—as the

Necessary and Proper Clause requires.16 McCulloch, 4

——————

§632.480 et seq. (2009 Cum. Supp.); Neb. Rev. Stat. §29–2923 et seq.

(2008); N. H. Rev. Stat. Ann. §135–E:1 et seq. (West Supp. 2009); N. J.

Stat. Ann. §30:4–82.4 et seq. (West 2008); N. M. Stat. Ann. §43–1–1 et

seq. (2000 and Supp. 2009); N. Y. Mental Hyg. Law Ann. §10.01 et seq.

(West Supp. 2010); N. D. Cent. Code §25–03.3–01 et seq. (2002 and

Supp. 2009); Ore. Rev. Stat. §426.510 et seq. (2007); S. C. Code Ann.

§44–48–10 et seq. (Supp. 2009); Tenn. Code Ann. §33–6–801 et seq.

(2007); Tex. Health & Safety Code Ann. §841.001 et seq. (West 2009);

Va. Code Ann. §37.2–900 et seq. (Lexis Supp. 2009); Wash. Rev. Code

§71.09.010 et seq. (2008); Wis. Stat. Ann. §980.01 et seq. (West 2007 and

Supp. 2009).

16 The Court describes my argument as a claim that Ҥ4248 violates

the Tenth Amendment.” Ante, at 16. Yet, I agree entirely with the

Court that “ ‘it makes no difference whether one views the question at

issue [here] as one of ascertaining the limits of the power delegated to

the Federal Government under the affirmative provisions of the Consti

tution or one of discerning the core of sovereignty retained by the

States under the Tenth Amendment.’ ” Ibid. (quoting New York v.

United States, 505 U. S. 144, 159 (1992)). Section 4248 is unconstitu

tional because it does not “carr[y] into Execution” an enumerated

power. Therefore, it necessarily intrudes upon the powers our Consti

tution reserves to the States and to the people.

22 UNITED STATES v. COMSTOCK

THOMAS, J., dissenting

Wheat., at 421; Printz v. United States, 521 U. S. 898,

923–924 (1997). For once it is determined that Congress

has the authority to provide for the civil detention of

sexually dangerous persons, Congress “is acting within the

powers granted it under the Constitution,” and “may

impose its will on the States.” Gregory, 501 U. S., at 460;

see Art. VI, cl. 2. Section 4248’s right of first refusal is

thus not a matter of constitutional necessity, but an act of

legislative grace.

Nevertheless, 29 States appear as amici and argue that

§4248 is constitutional. They tell us that they do not

object to Congress retaining custody of “sexually danger

ous persons” after their criminal sentences expire because

the cost of detaining such persons is “expensive”—

approximately $64,000 per year—and these States would

rather the Federal Government bear this expense. Brief

for Kansas et al. 2; ibid. (“[S]ex offender civil commitment

programs are expensive to operate”); id., at 4 (“these pro

grams are expensive”); id., at 8 (“[T]here are very practical

reasons to prefer a system that includes a federal sex

offender civil commitment program . . . . One such reason

is the significant cost”).

Congress’ power, however, is fixed by the Constitution;

it does not expand merely to suit the States’ policy prefer

ences, or to allow State officials to avoid difficult choices

regarding the allocation of state funds. By assigning the

Federal Government power over “certain enumerated

objects only,” the Constitution “leaves to the several States

a residuary and inviolable sovereignty over all other ob

jects.” The Federalist No. 39, at 285 (J. Madison). The

purpose of this design is to preserve the “balance of power

between the States and the Federal Government . . . [that]

protect[s] our fundamental liberties.” Garcia v. San Anto

nio Metropolitan Transit Authority, 469 U. S. 528, 572

(1985) (Powell, J., dissenting); New York v. United States,

505 U. S., at 181. It is the States’ duty to act as the “im

Cite as: 560 U. S. ____ (2010) 23

THOMAS, J., dissenting

mediate and visible guardian” of those liberties because

federal powers extend no further than those enumerated

in the Constitution. The Federalist No. 17, at 169 (A.

Hamilton). The Constitution gives States no more power

to decline this responsibility than it gives them to infringe

upon those liberties in the first instance. FTC v. Ticor

Title Ins. Co., 504 U. S. 621, 636 (1992) (“Federalism

serves to assign political responsibility, not to obscure it”).

Absent congressional action that is in accordance with,

or necessary and proper to, an enumerated power, the

duty to protect citizens from violent crime, including acts

of sexual violence, belongs solely to the States. Morrison,

529 U. S., at 618 (“[W]e can think of no better example of

the police power, which the Founders denied the National

Government and reposed in the States, than the suppres

sion of violent crime”); see Cohens v. Virginia, 6 Wheat.

264, 426 (1821) (Marshall, C. J.) (stating that Congress

has “no general right to punish murder committed within

any of the States”).

* * *

Not long ago, this Court described the Necessary and

Proper Clause as “the last, best hope of those who defend

ultra vires congressional action.” Printz, supra, at 923.

Regrettably, today’s opinion breathes new life into that

Clause, and—the Court’s protestations to the contrary

notwithstanding, see ante, at 18—comes perilously close to

transforming the Necessary and Proper Clause into a

basis for the federal police power that “we always have

rejected,” Lopez, 514 U. S., at 584 (THOMAS, J., concur

ring) (citing Gregory, supra, at 457; Wirtz, 392 U. S., at

196; Jones & Laughlin Steel Corp., 301 U. S., at 37). 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 intrusted to the government.” McCulloch,

supra, at 423.

I respectfully dissent.