OPINION OF THE COURT UNITED STATES V. COMSTOCK 560 U. S. ____ (2010) 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 Department 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. Maryland , 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 order the civil commitment of an
individual who is currently “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 difficulty in refraining
from sexually violent conduct or child molestation if released.”
§§4247(a)(5)–(6).

															   In order to detain such a person,
the Government (acting through the Department of Justice) must
certify to a federal district judge that the prisoner meets the
conditions 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 correspondingly
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 hearing 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 convincing evidence,” the court will order the prisoner’s
continued commitment in “the custody of the Attorney General,” 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 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 appropriate
ongoing treatment), in which case he will be released; or (2) a
State assumes responsibility for his custody, 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 respondents in
this case. Three of the five had previously pleaded guilty in
federal court to possession of child pornography, 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 others. 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).

															   Each of the five respondents moved to dismiss
the civil-commitment proceeding on constitutional grounds. They
claimed that the commitment proceeding is, in fact, criminal, 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 substantive 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 dangerousness 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 exceeded the powers granted to it by Art. I, §8
of the Constitution, 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 question, nor did it address
any of respondents’ other constitutional 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); 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 circumstances. Cf. Hendricks , 521 U. S. 346 ; Addington v. Texas , 441
U. S. 418 (1979). In other words, we assume for argument’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 powers, may enact such a statute as well.
On that assumption, 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]overnment 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 government, entrusted with
such” powers “must also be entrusted 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 accompanied 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 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 Necessary and
Proper Clause demands that an Act of Congress be
‘ “ absolutely necessary” ’ to the exercise of an
enumerated 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 constitutionally
enumerated power. Sabri v. United States , 541 U. S. 600 ,
605 (2004) (using term “means-ends rationality” to describe the
necessary relationship); ibid. (upholding 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’ ” (ellipsis in original)); see
also United States v. Lopez , 514 U. S. 549 , 557
(1995); Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc. , 452 U. S. 264 , 276
(1981).

															   Of course, as Chief Justice Marshall stated, a
federal 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
implement. 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
“addresse[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 extent 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 determination 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
Congressional 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 Nations,”
Art. I, §8, cls. 6, 10; Art. III, §3, nonetheless grants
Congress broad authority to create such crimes. See McCulloch, 4 Wheat., at 416 (“All admit that the
government 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 naturalization, 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 (criminalizing
voting-rights violations) in furtherance of the Fourteenth and
Fifteenth Amendments); Sabri, supra, (upholding
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 enforcement 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 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
(prohibiting smuggling contraband); §751 et seq. (prohibiting escape 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
prisoners, is explicitly mentioned in the Constitution. But
Congress 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 constitutes a modest addition to a set of federal
prison-related mental-health statutes that have existed for many
decades. 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 (legislative 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 reasonableness of the relation
between the new statute and pre-existing federal interests.

															   Here, Congress has long been involved in the
delivery of mental health care to federal prisoners, and has long
provided for their civil commitment. In 1855 it established Saint
Elizabeth’s Hospital in the District of Columbia 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 facilities (or in state facilities if a State so agreed) of
“ all persons 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 commitment 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 underlying 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.

															   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 Prisons, 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.” Judicial 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
problem 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] incompetent”
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) (statement 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 confinement 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 commitment 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 confined. 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 “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 prisoner’s
danger to the “interests of the United States,” to conform more
closely to the then-existing judicial interpretation 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
available” 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 various 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 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 Government is the custodian of
its prisoners. As federal custodian, 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 necessary for the State to
restrain the movement of residents—for example, to protect them as well as others from violence” (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 danger 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 Government to take action,
pursuant to its role as federal custodian, to refuse (at least
until the threat diminishes) to release that individual among the
general public, where he might infect others (even if not
threatening an interstate 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 reasonably 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 identified in the Reports cited
above, taken together with its responsibilities as a federal
custodian, supports the conclusion that §4248 satisfies “review for
means-end rationality,” i.e. , that it satisfies the
Constitution’s insistence that a federal statute represent a
rational means for implementing 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 Necessary and Proper Clause when it
“provides an alternative 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
Constitution” 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 Constitution “reserved to the
States.” See New York, supra, at 156, 159 (“[I]f
a power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation 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 discerning
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. Yellowley , 272 U. S. 581 , 596
(1926).

															   Nor does this statute invade state sovereignty
or otherwise improperly limit the scope of “powers that remain 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 contend that the States
are nonetheless “powerless to prevent the detention of
their citizens under §4248, even if detention 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
challenge to the current statute’s predecessor— i.e. , to
the 1949 statute we described above, supra, at 11–12. The
petitioners 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
Petitioner in Greenwood, supra, at 25 (“What has really
happened is that the Federal government has been dissatisfied with
the care given by the states to those mentally incompetent who have
been released by the Federal authorities”). 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 precedents. Again, take Greenwood as an example.
In that case we upheld the (likely indefinite) civil commitment of
a mentally incompetent federal defendant who was accused 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
establishment… . [F]rom this has been inferred the power and
duty of carrying the mail along the post road, 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
imprison, see supra, at 8–9, and, in Greenwood ,
the federal civil-commitment power.

															   Our necessary and proper jurisprudence
contains multiple 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 Necessary 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 “taxpayer 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 Necessary 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 implied power
we further inferred the “[i]mplied power” “to pass laws to …
punish” anyone who fraudulently appropriated 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 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 defendant’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 enumerated power that justifies the creation of a federal
criminal statute, and that justifies the additional implied federal
powers that the dissent considers legitimate, justifies 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 fraction 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,
Prisoners in 2008, p. 8 (rev. Apr. 2010) (Table 8), online at
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 depended 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 reasonably adapted and narrowly
tailored means of pursuing the Government’s legitimate interest as
a federal custodian 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
Government 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 constitution intended to endure for
ages to come, and, consequently, to be adapted to the various
crises of human affairs.” McCulloch , 4 Wheat., at 415
(emphasis deleted).

															*  *  *

															   We take these five considerations
together. They include: (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 considerations lead us to conclude
that the statute is a “necessary and proper” means of exercising
the federal authority that permits Congress to create federal
criminal laws, to punish their violation, to imprison violators, to
provide appropriately for those imprisoned, and to maintain the
security of those who are not imprisoned but who may be affected by
the federal imprisonment of others. 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, procedural 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
statute is reversed, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. KENNEDY, J., CONCURRING IN JUDGMENT UNITED STATES V. COMSTOCK 560 U. S. ____ (2010) 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 challenged 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 incorrect. When the
inquiry is whether a federal law has sufficient links to an
enumerated power to be within the scope of federal authority, the
analysis depends not on the number 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 controlled by
some limitations lest, as Thomas Jefferson warned, congressional
powers become completely unbounded 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).

															   This separate writing serves two purposes. The
first is to withhold assent from certain statements and
propositions of the Court’s opinion. The second is to caution that
the Constitution does require the invalidation of congressional
attempts to extend federal powers in some instances.

															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 rationality”
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 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, application 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 & Reclamation Assn., Inc. , 452 U. S. 264 ,
276 (1981)).

															   There is an important difference between the
two questions, 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
particular 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 Commerce Clause context is a demonstrated link
in fact, based on empirical demonstration. While undoubtedly
deferential, 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 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 without 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 Constitution 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 analytic 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 remaining after
taking account of powers granted to the National Government. The
Constitution delegates limited powers to the National Government
and then reserves the remainder 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
undefined. 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 letter and
spirit of the constitution, are constitutional”). It is of
fundamental importance to consider whether essential 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 proceeds by first asking
whether the power is within the National Government’s reach, and if
so it discards federalism concerns entirely.

															   These remarks explain why the Court ignores
important limitations stemming from federalism principles. Those
principles are essential to an understanding of the function 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.

															   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 National
Government relieves the States of their own primary 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 authority over a small class of persons already subject to the
federal power. Importantly, §4248(d) requires the Attorney General
to release any civil detainee “to the appropriate 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 assurance that the proffered reason for the
legislation’s necessity is not a mere artifice.

															   With these observations, I concur in the
judgment of the Court. ALITO, J., CONCURRING IN JUDGMENT UNITED STATES V. COMSTOCK 560 U. S. ____ (2010) 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 language, see ante , at 2–4 (Kennedy, J.,
concurring in judgment), 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 Constitution, see
Art. I, §8, cl. 18.

															   Section 4248 was enacted to protect the public
from federal prisoners who suffer from “a serious mental illness,
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 prisoner’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.

															   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 enumerated 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
congressional 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,[ Footnote 1 ]
created federal law enforcement and prosecutorial
positions,[ Footnote 2 ]
established a federal court system,[ Footnote 3 ] provided for the imprisonment of persons
convicted of federal crimes,[ Footnote 4 ] and gave United States marshals the
responsibility of securing federal prisoners.[ Footnote 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 commitment of dangerous federal prisoners who
would otherwise escape civil commitment as a result of federal
imprisonment.

															   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 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
Congress 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 underlying 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. Footnote 1 See, e.g. , ch. 9, 1 Stat. 112 (“An
Act for the Punishment of certain Crimes against the United
States”). Footnote 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”). Footnote 3 §1, id., at 73 (“An Act to establish
the Judicial Courts of the United States”). Footnote 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 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). Footnote 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”). THOMAS, J., DISSENTING UNITED STATES V. COMSTOCK 560 U. S. ____ (2010) 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 authorizing the Federal Government to civilly commit “sexually
dangerous person[s]” beyond the date it lawfully could hold them on
a charge or conviction for a federal crime. 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 respectfully dissent.

															I

															   “As every schoolchild learns, our
Constitution establishes 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 enumerated
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 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”).[ Footnote 1 ] This
constitutional structure establishes different default rules for
Congress and the States: Congress’ 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
Congress “[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 placement 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
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 expressly 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 inquiries: Unless the end itself is “legitimate,” the fit
between 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 legislate if the objective is anything
other than “carrying into Execution” one or more of the Federal
Government’s enumerated powers. Art. I, §8, cl. 18.

															   This limitation was of utmost importance to
the Framers. During the State ratification debates,
Anti-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
Constitution,” Alexander Hamilton noted that “it is expressly to execute these powers that the sweeping clause
. . . authorizes the national legislature to pass all necessary and proper laws.” The Federalist No.
33, at 245. James Madison 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 increase them at the end of all”).[ Footnote 2 ]

															   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
Congress 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 Lessee , 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 [Congress’] 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).[ Footnote 3 ] If the Attorney General demonstrates to a
federal court by clear and convincing evidence that a person
subject to the statute is “sexually dangerous,”[ Footnote 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 delegates 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 actually 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 Government
has never argued otherwise, see Tr. of Oral Arg. 21–22.[ Footnote 5 ]

															   This Court, moreover, consistently has
recognized that the power to care for the mentally ill and, where
necessary, the power “to protect the community from the dangerous
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 consequence, 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
(statement 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 regulatory powers of the federal
government ” (emphasis added)).

															   To be sure, protecting society from violent
sexual offenders 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., dissenting) (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.[ Footnote 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 therefore 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 interpreting 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 enumerated 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 Execution” an
end that is “legitimate.”[ Footnote
7 ] See, e.g. , Jinks v. Richland
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 Government’s enumerated powers.

															   By starting its inquiry with the
degree of deference owed to Congress in selecting means to further
a legitimate 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 Congress 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 confuses the analysis and,
if followed to its logical extreme, would result in an unwarranted
expansion of federal 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 “ ‘reasonably
adapted’ ” to those exercises of Congress’
incidental—and thus unenumerated—authorities. See ante , at
15 (concluding that “§4248 is ‘reasonably adapted’ to Congress’
power to act as a responsible federal custodian” (citation
omitted)); ante , at 22 (concluding that “the statute is a
‘necessary and proper’ means of exercising the federal authority
that permits Congress to create federal criminal laws, to punish
their violation, to imprison violators, to provide appropriately
for those imprisoned, and to maintain the security of those who are
not imprisoned but who may be affected by the federal imprisonment
of others”). 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 Congress has enacted
in the exercise of its incidental authority; the Clause plainly
requires a showing that every federal statute “carr[ies] into
Execution” one or more of the Federal Government’s enumerated powers.[ Footnote 8 ]

															   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 practical effect if Congress lacked the authority to enact
criminal laws “to punish those who steal letters from the post
office, or rob the mail.” McCulloch , supra , at
417. Similarly, 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). 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 enumerated
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.[ Footnote 9 ]
Tr. of Oral Arg. 23–25.

															   Second, §4248 permits the term of federal
civil commitment to continue beyond the date on which a convicted
prisoner’s sentence expires or the date on which the statute 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 jurisdiction 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 exercise civil custody over a federal defendant
declared mentally 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 criminal 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
enumerated power in the future. Although the Federal Government has
no express power to regulate sexual violence generally, Congress
has passed a number of laws proscribing 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 contrast, 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 that interferes
with a federal law that executes an enumerated power or in a
geographic location over which Congress has plenary
authority.[ Footnote 10 ]

															   In sum, the enumerated powers that justify a
criminal defendant’s arrest or conviction cannot justify his
subsequent 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 protect
nearby (and other) communities” from the dangers they may
pose,[ Footnote 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 Restatement 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
protection.” Id. , §315, at 122.

															Once the Federal Government’s criminal jurisdiction
over a prisoner ends, so does any “special relation[ship]” between
the Government and the former prisoner.[ Footnote 12 ]

															   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 federal 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 otherwise—does not provide the Government with
the additional power to exercise indefinite civil control over that
person.[ Footnote 13 ]

															2

															   Second, the Court describes §4248
as a “modest” expansion on a statutory framework with a long
historical pedigree. 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 overstates the relevant history.

															   Congress’ first foray into this
general area occurred in 1855, when it established St. Elizabeth’s
Hospital to provide treatment to “insane” persons in the military
and the 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
commitment 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
regime, 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 Greenwood , 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.[ Footnote 14 ]

															   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 jurisdiction
over the defendant—its “power to prosecute for federal
offenses—[wa]s not exhausted,” but rather “persist[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 , involve[d] an assertion of authority” within
“congressional power under the Necessary and Proper Clause.” Greenwood , 350 U. S., at 375 (emphasis added). But it
painstakingly limited its holding to “the narrow constitutional
issue raised by th[at] order of commitment.” Ibid. The historical record thus supports the
Federal Government’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 prisoner’s “claim to ‘legal
residence’ ” in any particular State, ante , at 15
(opinion of the Court), thus leaving the prisoner without any “home
State to take charge” of him upon release, ante , at 5
(Kennedy, J., concurring in judgment); 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
powers not delegated to the Federal Government are “reserved” 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 Government 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 domicile 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 dangerous 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
offenders,[ Footnote 15 ] the
likelihood of such an occurrence seems quite remote. But even in
the event a State made such a decision, 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 powers because it “requires accommodation of state
interests” by instructing the Attorney General to release a
committed 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
responsibility”). More importantly, it is an altogether hollow
assurance that §4248 preserves the principle of dual
sovereignty—the “letter and spirit” of the Constitution—as the
Necessary and Proper Clause requires.[ Footnote 16 ] McCulloch , 4 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
dangerous 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 programs 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
preferences, 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 objects.” 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 Antonio 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 “immediate 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 suppression 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., concurring) (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. Footnote 1 “With this careful last phrase, the [Tenth]
Amendment avoids taking any position on the division of power
between the state governments 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). Footnote 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 Proper Clause, 6 U. Pa. J. Const. L.
183, 185–186 (2003); Lawson & Granger, The “Proper” Scope of
Federal Power: A Jurisdictional Interpretation of the Sweeping
Clause, 43 Duke L. J. 267, 274–275, and n. 24 (1993). Footnote 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 sentence 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). Footnote 4 The Act defines a “sexually dangerous person”
as one “who has engaged 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 molestation if released.”
§4247(a)(6). Footnote 5 For the reasons explained in Part III–A–2, infra , the enumerated power that justifies a particular
defendant’s criminal arrest or conviction cannot justify his
subsequent civil detention under §4248. Footnote 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 . Footnote 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. Maryland , 4 Wheat. 316
(1819), while the Court’s decision today errs by skipping the
first. Footnote 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’ 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 ” (emphasis 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 corresponding 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)). Footnote 9 The statute does require the court to find
that the subject “has engaged 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. Footnote 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 responsibilities 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 commitment 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 institutionalization 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. Footnote 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. Footnote 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 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 Government’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. Footnote 13 The fact that Congress has the authority to
“provide for the apprehension of escaped federal prisoners,” see ante , at 3 (Alito, J., concurring 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. Footnote 14 In addition, at least some courts questioned
the Federal Government’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 interpreting the statute
to permit federal civil detention only for a period reasonably
related to a criminal prosecution); Wells v. Attorney
General of United States , 201 F. 2d 556, 560
(CA10 1953) (same). Footnote 15 As we have noted before, all 50 States have
developed “some variation” 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. §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). Footnote 16 The Court describes my argument as a claim
that “§4248 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 Constitution 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 unconstitutional because it does not “carr[y] into
Execution” an enumerated power. Therefore, it necessarily intrudes
upon the powers our Constitution reserves to the States and to the
people.

Summary: The Supreme Court ruled that a federal law authorizing the civil commitment of mentally ill and sexually dangerous federal prisoners beyond their prison terms is constitutional, as it falls within the federal government's authority to enact laws necessary and proper for executing its constitutional powers.