The U.S. Supreme Court has given the federal government sweeping new authority to hold people indefinitely — even after the completion of their sentences — if they find the individuals to be “sexually dangerous.” Notably, it is a reversal of the nation’s most conservative court of appeals — the Fourth Circuit — which ruled that Congress could not impose such an open-ended denial of liberty. Supreme Court nominee Elena Kagan argued for such authority, here. In the decision below written by Justice Stephen Breyer in United States v. Comstock, only two conservative justices dissented: Thomas and Scalia.
Four men contested their confinement after serving their prison terms for possession of child pornography or sexual abuse of a minor.
Thomas viewed the issue not in terms of due process but states rights. He objected to the sweeping view of the “necessary and proper” clause to allow Congress to impose such confinement:
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.
Here is the opinion: 08-1224.