560 U.S. 126


certiorari to the united states court of appeals for the fourth circuit

No. 081224.Argued January 12, 2010Decided May 17, 2010

Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. 18 U.S.C. 4248. The Government instituted civil-commitment proceedings under 4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U.S. Const., Art. I, 8, cl. 18. Agreeing, the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground.

Held: The Necessary and Proper Clause grants Congress authority sufficient to enact 4248. Taken together, five considerations compel this conclusion. Pp.522.

(1)The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. It makes clear that grants of specific federal legislative authority are accompanied by broad power to enact laws that are convenient, or useful or conducive to the enumerated powers beneficial exercise, e.g., McCulloch v. Maryland , 4 Wheat. 316, 413, 418, and that Congress can legislate on that vast mass of incidental powers which must be involved in the constitution, id., at 421. In determining whether the Clause authorizes a particular federal statute, there must be means-ends rationality between the enacted statute and the source of federal power. Sabri v. United States , 541 U.S. 600. 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. Thus, although the Constitution nowhere grants Congress express power to create federal crimes beyond those specifically enumerated, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, or to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, Congress possesses broad authority to do each of those things under the Clause. Pp.59.

(2)Congress has long been involved in the delivery of mental health care to federal prisoners, and has long provided for their civil commitment. See, e.g., Act of Mar. 3, 1855, 10 Stat. 682; Insanity Defense Reform Act of 1984, 18 U.S.C. 42414247. A longstanding history of related federal action does not demonstrate a statutes constitutionality, see, e.g., Walz v. Tax Commn of City of New York , 397 U.S. 664, but can be helpful in reviewing the substance of a congressional statutory scheme, Gonzales v. Raich , 545 U.S. 1, and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests. Section 4248 differs from earlier statutes in that it focuses directly upon persons who, due to a mental illness, are sexually dangerous. Many of these individuals, however, were likely already subject to civil commitment under 4246, which, since 1949, has authorized the postsentence detention of federal prisoners who suffer from a mental illness and who are thereby dangerous (whether sexually or otherwise). The similarities between 4246 and 4248 demonstrate that the latter is a modest addition to a longstanding federal statutory framework. Pp.914.

(3)There are sound reasons for 4248s enactment. The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose. Moreover, 4248 is reasonably adapted to Congress power to act as a responsible federal custodian. United States v. Darby , 312 U.S. 100. 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. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody. Congress desire to address these specific challenges, taken together with its responsibilities as a federal custodian, supports the conclusion that 4248 satisfies review for means-end rationality, Sabri, supra, at 605. Pp.1416.

(4)Respondents contention that 4248 violates the Tenth Amendment because it invades the province of state sovereignty in an area typically left to state control is rejected. That Amendment does not reserve to the States those powers that are delegated to the United States by the Constitution, including the powers delegated by the Necessary and Proper Clause. See, e.g., New York v. United States , 505 U.S. 144. And 4248 does not invade state sovereignty, but rather requires accommodation of state interests: Among other things, it directs the Attorney General to inform the States where the federal prisoner is domiciled or was tried of his detention, 4248(d), and gives either State the right, at any time, to assert its authority over the individual, which will prompt the individuals immediate transfer to State custody, 4248(d)(1). In Greenwood v. United States , 350 U.S. 366, the Court rejected a similar challenge to 4248s predecessor, the 1949 statute described above. Because the version of the statute at issue in Greenwood was less protective of state interests than 4248, a fortiori , the current statute does not invade state interests. Pp.1618.

(5)Section 4248 is narrow in scope. The Court rejects respondents argument that, when legislating pursuant to the Necessary and Proper Clause, Congress authority can be no more than one step removed from a specifically enumerated power. See, e.g., McCulloch, supra , at 417. Nor will the Courts holding today confer on Congress a general police power, which the Founders denied the National Government and reposed in the States. United States v. Morrison , 529 U.S. 598. Section 4248 has been applied to only a small fraction of federal prisoners, and its reach is limited to individuals already in the custody of the Federal Government, 4248(a). Thus, far from a general police power, 4248 is a reasonably adapted and narrowly tailored means of pursuing the Governments legitimate interest as a federal custodian in the responsible administration of its prison system. See New York, supra, at 157. Pp.1822.

The Court does not reach or decide any claim that the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents are free to pursue those claims on remand, and any others they have preserved. P.22.

551 F.3d 274, reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C.J., and Stevens, Ginsburg, and Sotomayor, JJ., joined. Kennedy, J., and Alito, J., filed opinions concurring in the judgment. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined in all but Part IIIA1b.


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, 566567 (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 Courts opinion. The second is to caution that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances.


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 Courts 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, 487488 (1955) . This formulation was in a case presenting a due process challenge and a challenge to a States 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 Clauses 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 (T homas , 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 Courts 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 Courts 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 580581 ( 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 Constitutions express prohibitions. The Courts 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 Governments power, as it proceeds by first asking whether the power is within the National Governments 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.


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 Courts 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 580581 ( 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 legislations necessity is not a mere artifice.

With these observations, I concur in the judgment of the Court.