Supreme Court justices back `broad authority' for Congress

May 18, 2010|By David G. Savage, Tribune Newspapers

WASHINGTON — — The Supreme Court set an apparent blueprint Monday for upholding recently enacted health care changes and its national mandate that all Americans have insurance, saying Congress has a "broad authority" to pass laws that are "rationally related" to carrying out its constitutional aims.

The Constitution not only gives Congress the power to regulate interstate commerce, the justices said, but also the authority to enact all laws that are "necessary and proper" to carrying out this authority.

The "choice of means" for carrying its aims is left "primarily … to the judgment of Congress," said Justice Stephen G. Breyer in U.S. v. Comstock.

The ruling arose from a constitutional challenge not to the health care legislation but to the federal authority to hold sex offenders after they had served their prison terms. Fifteen years ago, the court upheld similar state laws, so the dispute involved only the reach of federal power.

Maryland does not have a civil commitment statute, but it has considered one and recently enacted legislation providing for lifetime supervision of some offenders.

Former state Attorney General J. Joseph Curran, chairman of a commission examining Maryland's sex offender laws, said the panel would look at the decision, which he said "will certainly reinforce what the states have been doing."

Last year, a federal appeals court in Virginia struck down the law that authorized federal prisons to hold sex criminals who are deemed to be dangerous. It said Congress "had exceeded its authority" in passing this part of the Adam Walsh Child Protection and Safety Act of 2006.

It was the first clear test of federal authority before the high court in five years, and it arose just as Congress was nearing final passage of the broad health care law. In January, U.S. Solicitor General Elena Kagan, now President Barack Obama's nominee to the high court, came before it to argue for a broad reading of congressional power in the Comstock case.

At the same time, conservative "tea party" activists, among others, were insisting the Constitution tightly limits the power of Congress. They say the health care law should be struck down because it exceeds the power given to Congress.

For its part, the Obama administration said it plans to defend the mandate as a necessary means of regulating the cost of health insurance nationwide.

By a 7-2 vote, the court upheld the power of Congress to authorize holding convicted sex offenders after they had served their terms. And Breyer's opinion, which spoke for five of the justices, said Congress can do what it deems necessary to carry out its constitutional authority.

While nowhere in the Constitution does it say Congress can establish crimes or prisons, Breyer said Congress can regulate interstate commerce, and most federal crimes, such as drug trafficking, have a clear interstate link. So if Congress can send criminals to prison, it can also require they be held indefinitely if they are deemed to be dangerous, he said.

Quoting Chief Justice John Marshall, Breyer said Congress may use "all means which are appropriate" to carry out its constitutional powers.

Breyer also rejected the notion that such prison terms invade the sovereign terrain of the states, a complaint voiced in this case and in the dispute over health care. It is true the 10th Amendment limits "powers not delegated to the United States," Breyer said. If Congress has a delegated power, such as over interstate commerce, it may regulate in a way that infringes on the state's authority, he said.

Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor joined Breyer's opinion in U.S. v. Comstock.

Justices Anthony M. Kennedy and Samuel A. Alito Jr. agreed with the outcome, but both said they took issue with parts of Breyer's broad statement of congressional powers.

Roger Pilon, vice president of the libertarian Cato Institute and a critic of the health care law, called Breyer's opinion "a breathtaking expansion of federal power. It could pave the way for the court to find that Congress has the power, with ObamaCare, to order individuals to buy health care from private vendors."

Only Justices Clarence Thomas and Antonin Scalia set out the small-government theory of congressional power that has been voiced by those challenging the constitutionality of the health care mandate. Thomas said Congress has only the "powers enumerated in the Constitution," and holding prisoners beyond their term goes beyond a specific enumerated power, he said.

Baltimore Sun reporter Michael Dresser contributed to this article.

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