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Yesterday the Supreme Court decided Comstock v. United States, the case I wrote about here. Relying on the “necessary and proper” clause of the Constitution, the Court upheld by a 7–2 margin the federal government’s authority to detain sexually dangerous prisoners after the conclusion of their sentences. The breadth of the Court’s opinion, written by Justice Breyer, makes it more likely that other exercises of federal power will be upheld, including the newly enacted mandate requiring individuals to purchase health insurance.

The framers of the Constitution split authority between the states and the federal government. Denying Congress a general power to legislate in all areas, they granted it a set of specific powers and reserved all remaining powers to the states. The limited nature of the federal government was by constitutional design a specific protection of individual liberty.

Included in the powers granted Congress was the power to enact all laws that are “necessary and proper” to perform its other constitutional powers. Of course, how one defines what is necessary and proper has a large bearing on how limited federal power is.

The scope of this authority was the major question in Comstock. Graydon Comstock, a detained inmate, argued that that the government’s power over him ceased at the end of his sentence. The Court disagreed, holding that the continued detention was necessary and proper to carrying out the purpose of Comstock’s original prison sentence.

In upholding the law, the Court adopted a lenient standard for reviewing laws under the necessary and proper clause. Under this standard, Congress may enact any laws that are rationally related to any of its specific powers. The Court suggested that the closeness of this relationship is a matter of congressional determination. Justice Thomas’s dissent, joined by Justice Scalia, argued that such an expansive view of the necessary and proper clause “comes perilously close” to granting Congress the general legislative authority that everyone, including the Court, agrees that the Constitution does not authorize.

So what does this have to do with the individual mandate? Supporters of the mandate argue that it can be upheld under Congress’s power to regulate interstate commerce, noting that the Court’s opinions have interpreted the necessary and proper clause to allow Congress to regulate activity that substantially affects interstate commerce.

In the past, the Court has refused to accept this reasoning when the law was too far removed from the actual regulation of interstate commerce. Opponents of the mandate argue that an individual’s nonactivity in the insurance market is too tangentially related to the activity of commerce to be a “necessary and proper” regulation. After yesterday’s ruling, this argument will be more difficult to maintain. If it is up to Congress to decide whether a piece of legislation has the required connection to an enumerated power, challenges to the mandate will almost certainly fail.

Of course, in future decisions, the Court may retreat from the broad view it announced in Comstock. The Court’s opinions setting the confines of federal power have been mercurial for several decades. In fact, four justices, including two who voted to uphold the detention law, specifically refused to embrace the majority opinion’s broad reasoning. But, until we see signs to the contrary, it appears that congressional self-restraint is the primary, or maybe the only, limit on federal power.

Ryan Lirette is a research associate at AEI.

In her first appearance on the Supreme Court bench, newly minted Justice Sonia Sotomayor made some comments that have renewed questions regarding her judicial philosophy.

During oral argument on the campaign-finance case Citizens United v. Federal Election Commission, she suggested that the Court should revisit more than 100 years of precedent, questioning whether corporations were properly considered “persons” entitled to rights under the Constitution. However, the reasoning behind this suggestion is questionable, given that it is based on the contention that judges created corporations as “persons” and thus can reverse that decision. This assertion is inaccurate as a matter of history and current practice. Corporations are chartered by state legislatures and are “creatures” of the legislative branch—not the judiciary. From the founding period, they have been considered artificial “persons,” a doctrine that has strong roots in the common law. Arbitrarily depriving them of their long-possessed rights through judicial decision making would constitute an improper intrusion on the authority of both the states and the legislative branch. Accordingly, it again raises the question whether Justice Sotomayor’s view of the judicial role is consistent with what was contemplated by the Constitution. Only time will tell.

Douglas Smith is an adjunct scholar at the American Enterprise Institute.

The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have received
significant attention, with many arguing that they will revolutionize the standards for bringing civil lawsuits in the federal courts, making them much more stringent. In these decisions, the Supreme Court held that a plaintiff’s complaint must contain allegations that are “plausible” on their face, and that a mere possibility that a defendant might be liable is not enough to state a claim in federal court.

The attention these decisions have received has spurred Congress to act, but not in ways that will be productive for the legal system. Senator Arlen Specter has introduced legislation entitled “The Notice Pleading Restoration Act” that would “overrule” the Supreme Court’s decisions in Iqbal and Twombly, and replace the standards articulated by the Supreme Court.

Such legislation is problematic for several reasons. First, as a matter of core competency, it is the courts—not Congress—that is in the best position to determine pleading standards. In both Iqbal and Twombly, the Supreme Court relied on nearly a century of precedent interpreting the Federal Rules of Civil Procedure. Moreover, Twombly at least was the result of a solid consensus, with seven of the justices joining in a majority decision authored by former Justice Souter.

The proposed legislation is also bad policy. As the Supreme Court observed in its decisions, defendants
often face significant burdens if litigation progresses past the pleading stage, given the broad-ranging
discovery authorized under the Federal Rules. Accordingly, there is a need for stringent judicial
scrutiny to ensure that, before these burdens are imposed, plaintiffs can at least articulate a plausible
claim.

Finally, the proposed legislation seeks to utilize procedural rules as a vehicle for substantive outcomes.
Indeed, as many commentators have observed, it is only the most recent in a series of proposed measures
Congress has floated that are designed to make it easier for plaintiffs to prevail in civil lawsuits.
Congress should think twice before amending broadly applicable procedural rules to achieve such
results-oriented outcomes.

Douglas Smith is an adjunct scholar at the American Enterprise Institute.

Contrary to claims in the media, the party-line vote on Sotomayor is about ideology, not race. It is the culmination of decades of politicization of court appointments that was launched by Democrats with only fitful responses by Republicans.

In 1987, Senate Democrats voted down Robert Bork, a brilliant federal appeals judge and former Yale law professor, solely because of his legal views.

In 1991, the same crew ambushed Clarence Thomas (for whom I served as a law clerk) with outrageous claims of sexual harassment, and failed to stop his confirmation by only four votes.

In 2003, Democrats used the filibuster for the first time in U.S. history to oppose a slate of nominees to the lower courts—several of them minorities and women with high-court potential.

Half of Senate Democrats voted against the nomination of John G. Roberts Jr., one of the finest Supreme Court lawyers of his generation, for chief justice in 2005.

For Republicans to simply defer to a president’s pick now would amount to unilateral disarmament. The only way they can force a return to a sane process is to show Democrats that they are willing to respond tit for tat.

That won’t stop the Sotomayor appointment, but it can reshape the debate on future nominees, which may not be that far off considering that five justices are age 72 or older.

In this week’s vote, Republicans can use their “advice and consent” role not to attack Sotomayor, but to move constitutional law and the court in the right direction. They can demand nominees who reject the notion that the Constitution is a “living” document that changes along with society and who respect the right of the elected branches and the states to make most policy changes.

During the next few days, the U.S. Supreme Court will issue its opinion in Northwest Austin Municipal Utility District Number One v. Holder, a challenge to the constitutionality of the recently reauthorized Section 5 of the Voting Rights Act. Section 5 requires mostly southern jurisdictions to ask permission from the federal government before any new election procedure (redistricting, moving a polling place, etc.) can go into effect.

Although this “preclearance” provision was an important element of the 1965 statute, lawmakers scheduled it to expire in 1970, recognizing that it was a serious assault on bedrock American federalism principles. But expiration never happened. In fact, the provision was extended three more times with President George W. Bush enthusiastically signing the fourth reauthorization in an elaborate White House ceremony on July 28, 2006. The bill had won approval in the Senate by a margin of 98-0 and in the House by a margin of 390-33. One week later, the Austin MUD filed its lawsuit.

If the high court finds this provision of the VRA unconstitutional, the howls of outrage from Congress will be deafening. Already warning shots have been fired across the bow of the Supreme Court from Senate Judiciary Chairman Patrick Leahy and his newest Democratic member, Sen. Arlen Specter.

Republican lawmakers don’t have many battle scars from their defense of color-blind equal protection, so it won’t be surprising to see them duck and cover if the MUD wins. But this would be unwise. Republicans (and any Democrats willing to stand up) need to acknowledge that the reauthorization was problematic and, frankly, disingenuous from the beginning.

Republicans need to lead on this, not just play defense. Here’s how.

First, Republicans should insist that if Congress chooses to pass a new voting preclearance provision, every jurisdiction in the nation must be considered for coverage—not just the ones targeted in 1965. And second, coverage should not be applied anywhere unless there is demonstrable evidence of recent, intentional governmental discrimination against minorities that existing laws cannot remedy. Of course, if Section 5 is struck down, the court’s opinion will probably highlight these exact defects, so it shouldn’t be a bridge too far for Republican lawmakers to stand their ground on these principles.