United States v. Kebodeaux

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NO. 12-418

IN THESupreme Court of the United States

UNITED STATES,Petitioner,

v.

ANTHONYJAMES KEBODEAUX,Respondent.

On Writ of Certiorarito the U.S. Court Of Appeals

for the Fifth Circuit

Brief of the Cato Institute asAmicus CuriaeinSupport of Respondent

ILYASOMINCounsel of Record

GEORGE MASONUNIVERSITYSCHOOL OFLAW3301 Fairfax Drive,

Arlington, VA 22201(703) [email protected]

ILYASHAPIROCato Institute1000 Mass. Ave., N.W.Washington, D.C. 20001(202) [email protected]


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QUESTION PRESENTEDCan the United States use the Necessary and

Proper Clause to assert perpetual jurisdiction oversomeone merely because he once was within federal

jurisdiction?


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TABLE OF CONTENTSPage

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

INTEREST OFAMICUS CURIAE............................ 1

SUMMARY OF ARGUMENT .................................... 1

I. MR. KEBODEAUXS DETENTION ISIMPROPER BECAUSE IT REQUIRES THE

ASSUMPTION OF A GREAT, SUBSTANTIVE,AND INDEPENDENT POWER BEYOND

THOSE ENUMERATED IN THECONSTITUTION...................................................5

II. MR. KEBODEAUXS DETENTION ISIMPROPER BECAUSE IT CANNOT BEJUSTIFIED WITHOUT GIVING CONGRESSUNLIMITED AUTHORITY TO REGULATE

VIRTUALLY ALL AMERICANS.......................... 9

III.MR. KEBODEUXS DETENTION IS IMPROPERUNDER UNITED STATES V. COMSTOCK..... 16

A. The Five ComstockConsiderations WeighAgainst Mr. Kebodeauxs Detention.............. 17

1. Mr. Kebodeauxs detention is not justifiedby any long history of federal involvementin the relevant field .................................. 17

2. The government lacks sound reasons formaintaining control over Mr. Kebodeaux 18


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3. Federal detention of Mr. Kebodeaux andothers similarly situated does not properlyaccommodate state interests ....................20

4. The sweeping federal authority asserted bythe government is not narrow in scope.... 21

5. The scope of the Necessary and ProperClause........................................................ 22

CONCLUSION...............................................................23


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TABLE OF AUTHORITIESPage(s)

CASESCarr v. United States,

130 S. Ct. 2229 (2010) ....................................12, 14

Gonzales v. Raich,

545 U.S. 1 (2005).................................................... 3

Knowlton v. Moore,178 U.S. 41 (1900)................................................. 2

McCulloch v. Maryland,

17 U.S. 316 (1819).......................................... 3, 5, 6

NFIB v. Sebelius,132 S. Ct. 2566 (2012)..................................passim

Printz v. United States,521 U.S. 898 (1997) ...................................................4

Smith v. Doe,538 U.S. 84 (2003)...........................................13, 14

United States v. Comstock,130 S. Ct 1949 (2010) ....................................passim

United States v. Emmons,

410 U.S. 396 (1973).............................................. 20

United States v. Kebodeaux,687 F.3d 232 (5th Cir. 2012) (en banc)..........passim


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United States v. Lopez,514 U.S. 549 (1994).......................................... 3, 20

United States v. Morrison,529 U.S. 598 (2000) ...............................................3, 4

United States v. Wrightwood Dairy Co.,315 U.S. 110 (1942)................................................ 8

STATUTES & REGULATIONS42 U.S.C. 4248 ............................................................16

CONSTITUTIONAL PROVISIONSU.S. Const. art. I, 8, cl. 6........................................... 7

U.S. Const. art. I, 8, cl. 8........................................... 7

U.S. Const. art. I, 8, cl. 18 ............................................2

OTHER AUTHORITIESThe Federalist No. 33(Alexander Hamilton) (Clinton

Rossiter ed., 1961)........................................... 17-18

The FederalistNo. 39 (James Madison) (ClintonRossiter ed., 1961)...................................................3

The FederalistNo. 45 (James Madison) (ClintonRossiter ed., 1961)............................................ 8, 16

The FederalistNo. 48 (James Madison) (ClintonRossiter ed., 1961)................................................ 10


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Gary Lawson & Patricia Granger, The ProperScope of Federal Power: A Jurisdictional

Interpretation of the Sweeping Clause, 43 DUKEL.J. 267 (1993)............................................................6

Gary Lawson & David B. Kopel, Bad News forProfessor Koppelman: The Incidental

Unconstitutionality of the Individual Mandate,121 YALE L.J. ONLINE 267 (2011) ........................6

Ilya Shapiro & Trevor Burrus, Not NecessarilyProper: Comstocks Errors & Limitations, 61SYRACUSEL.REV. 413 (2011) ........................... 22

Ilya Somin, The Individual Mandate & the ProperMeaning of Proper, in The Health Care Case:

The Supreme Courts Decision & Implications

(Gillian Metzger, Trevor Morrison, & NathanielPersily, eds., Oxford University Press)(forthcoming), available athttp://ssrn.com/abstract=2167381......................... 4

Ilya Somin, Taking Stock of Comstock: TheNecessary and Proper Clause and the Limits of

Federal Power, 2009-10Cato Sup. Ct. Rev. 239......................................... 16

The Eagles, Hotel California, on Hotel California(Asylum Records 1977) ........................................ 15


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INTEREST OF AMICUS CURIAE 1The Cato Institute was established in 1977 as a

nonpartisan public policy research foundationdedicated to advancing the principles of individual

liberty, free markets, and limited government.Catos Center for Constitutional Studies wasestablished in 1989 to help restore the principles oflimited constitutional government that are thefoundation of liberty. Toward those ends, the CatoInstitute publishes books and studies, conductsconferences and forums, and publishes the annualCato Supreme Court Review, and files amicusbriefs.The present case concerns Cato because it involves apotentially far-reaching and dangerous assertion of

federal power.

SUMMARY OF ARGUMENTAmicus submits this brief to highlight the

impropriety of the federal governments claimingjurisdiction over Anthony Kebodeaux for failing toupdate his change of address pursuant to the SexOffender Registration and Notification Act (SORNA)when he moved intrastate. Mr. Kebodeaux hadcompleted his sentence, was no longer in federal

custody or the military, and was not under anysupervised release or parole. In short, he had nospecial relationship with the federal government that

1 Pursuant to Rule 37.2(a), all parties were timely notifiedof and have consented to the filing of this brief. In accordancewith Rule 37.6, counsel affirms that no counsel for any partyauthored this brief in whole or in part and that no person orentity other than amicusmade a monetary contribution to itspreparation or submission.


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would justify his continued and indefinitesupervision.2

The continued monitoring of Mr. Kebodeaux isimproper under this Courts recent clarification ofthe term in both United States v. Comstock, 130 S.Ct. 1949 (2010), and NFIB v. Sebelius, 132 S. Ct.2566 (2012). Although cases analyzing the propercomponent of the Necessary and Proper Clause, U.S.Const. art. I, 8, cl. 18, are historically rare in thisCourts jurisprudence, those recent cases affirm theelementary canon of construction which requiresthat effect be given to each word of the Constitution.Knowlton v. Moore, 178 U.S. 41, 87 (1900). The Courthas made clear that a law may be unconstitutionallyimproper even if it is necessary.

The Supreme Court ha[s] been very deferentialto Congresss determination that a regulation isnecessary. NFIB, 132 S. Ct. at 2592 (opinion ofRoberts, C.J.). The major cases interpreting themeaning of necessary focus on the nature of theobject being regulated and its relationship to a powerof Congress. See, e.g. United States v. Lopez, 514U.S. 549, 567 (1994) (holding that the possession ofa gun in a local school zone is in no sense aneconomic activity that might, through repetition

elsewhere, substantially affect any sort of interstate

2 This brief assumes the validity the above assessment,which accords with the en banc decision below that Kebodeauxsrelease was unconditional and thus not subject to registrationrequirements under the Watterling Act because only sex-offenders residing in non-compliant states were subject tofederal registration for intrastate changes of residence. UnitedStates v. Kebodeaux, 687 F.3d 232, 235 n.4 (5th Cir. 2012) (enbanc). However, as briefly discussed below, Petitioners positionis problematic even if this statutory analysis is incorrect.


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commerce.); United States v. Morrison, 529 U.S.598, 613) (2000) (overturning the Violence AgainstWomen Act because [g]ender-motivated crimes ofviolence are not, in any sense of the phrase, economicactivity.); Gonzales v. Raich, 545 U.S 1, 25 (2005)

(defining quintessentially economic activities aspertaining to the the production, distribution, andconsumption of commodities.). The connectionbetween the regulated object and interstatecommerce can be quite attenuated, yet Congress willreceive deference if that connection does not violatethe rule that the object must in some sense beeconomic. Id.

Without the propriety requirement, a test basedon mere usefulness and convenience would soon

become a backdoor to an unbounded field of federalpower. Much like the proximate cause test forcausation in torts, the propriety test limitscongressional power to something more than mereexamination of links in a causal chain that areuseful or convenient. In NFIB, this Court madeclear that mere convenience and usefulness were notsufficient to sustain a statute under the Commerceand Necessary and Proper Clauses, NFIB, 132 S. Ct.at 2590-92, and that the Constitution does not givethe federal government an indefinite supremacy

over all persons and things. The Federalist No. 39(James Madison) (Clinton Rossiter ed., 1961).

Mr. Kebodeauxs detention is improper for twodistinct reasons. First, it amounts to the exercise of agreat substantive and independent power beyondthose specifically enumerated in the Constitution.NFIB, 132 S. Ct. at 2591 (quoting McCulloch v.Maryland, 17 U.S. (4 Wheat) 316, 411 (1819));second, the logic of the governments position would


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give it virtually unlimited power to regulate nearlyall Americans. This undermines the Constitutionscareful enumeration of federal powers. Morrison,529 U.S. at 618 n.8.; Cf. Ilya Somin, The IndividualMandate and the Proper Meaning of Proper, inThe

Health Care Case: The Supreme Courts Decisionand Implications (Gillian Metzger, Trevor Morrison,& Nathaniel Persily, eds., Oxford University Press)(forthcoming) available athttp://ssrn.com/abstract=2167381 (explaining howthese two standards are separate, thoughoverlapping, tests of propriety). The governmentsposition in this case also runs afoul of four of the fivefactors applied by this Court in United States v.Comstock, 130 S. Ct. 1949 (2010). Those factors arebest understood as standards of propriety.

Unlike in the adjudication of issues related tonecessity, Congress does not receive deference underthe test for propriety. See, e.g., NFIB, 132 S. Ct. at2591-92 (applying propriety constraints withoutdeferring to the federal governments assertions ofpower). Even if asserting jurisdiction over Mr.Kebodeaux could be tied to an enumerated power ofCongress through a chain of necessary connections,it would not be proper to do so. Mr. Kebodeaux sitsoutside of Congresss jurisdiction, and the solicitor

generals arguments that he is within congressionaljurisdiction amount to an improper grant of a great,independent, an unbounded power that tramples onthe traditional police powers of the several states.

In this case, as in others, the Necessary andProper Clause has become the last, best hope ofthose who defend ultra vires congressional action.Printz v. United States, 521 U.S. 898, 923 (1997). Toprevent the Clause from becoming a back door to


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to executing the enumerated powers, id. at 413-15,the proper element prevents Congress fromcreating a great substantive and independentpower beyond those specifically enumerated. NFIB,132 S. Ct. at 2591 (quoting McCulloch, 17 U.S. at

411); Cf. Gary Lawson & Patricia Granger, TheProper Scope of Federal Power: A Jurisdictional

Interpretation of the Sweeping Clause, 43 DUKEL.J. 267 (1993) (explaining the original meaning ofproper as a constraint on federal intrusion into thedomain of the states).

Were the Necessary and Proper Clause just aNecessary Clause, this Courts inquiry could beconfined to a means/end analysis of whether a givenlaw or assertion of jurisdiction is convenient, useful,

or conducive to Congresss execution of anenumerated power. Yet this Court is also bound tostrike down laws that undermine the structure ofgovernment established by the Constitution, NFIB,132 S. Ct. at 2592, because they are improper, even ifnecessary.

Mr. Kebodeauxs detention is not incidental to anenumerated power. Rather it is a new substantivepower that is in fact greater than the powers whichthe government claims to be executing. An incidental

power can be described as a power that is lessworthy than the enumerated power that it is joinedto. Gary Lawson & David B. Kopel, Bad News forProfessor Koppelman: The Incidental

Unconstitutionality of the Individual Mandate, 121YALE L.J. ONLINE 267 (2011). Any otherinterpretation would have the Necessary and ProperClause to granting powers that are in fact greaterthan those enumerated.


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The government claims that maintainingjurisdiction over Mr. Kebodeaux helps monitor alegitimate collateral consequence of conviction thatis intended to protect the community. Pet. Br. at 15.

Yet any risk posed by a former offender many years

after his unconditional release is hardly a genuinecollateral consequence of his original conviction.Presumably, he would pose as much or more risk tothe community had he never been convicted for hisprevious crimes in the first place. The governmentsposition implies that there is a federal interest in thepossible future crimes of anyone who has ever beenconvicted of a federal offense in the past. With onlynarrow exceptionspunishing counterfeiting, U.S.Const. art. I, 8, cl. 6, and punishing piracy, feloniescommitted at sea, and Offenses against the law ofnations,U.S. Const. art. I, 8, cl. 8Congress lacksan enumerated power to punish criminals, much lessmonitor previously released criminals in perpetuity.Providing general criminal enforcement within its

jurisdiction, such as within federal enclaves, is itselfa power incidental to the greater power to set upsuch jurisdictions in the first place.

Here, the governments argument ultimatelycreates a power that is several steps beyondincidental and instead becomes a great substantive

and independent power. The power to monitor inperpetuity those who were once in federal

jurisdiction and to impose new and onerousrestrictions on them at Congresss will isunquestionably great and could fundamentallychange the relationship between U.S. citizens andthe federal government. As a practical matter, itwould give Congress unlimited life-long authority toimpose regulations on any of the hundreds of


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thousands of people who have been in federal custodyat some point in their lives. Had the Framersintended this power to reside in Congress they wouldhave listed it among those powers enumerated in

Article I, Section Eight.

Not being a government, like the states,empowered to legislate numerous and indefiniteissues, the federal government must restrict itself topowers that are few and defined and those powerswhich are incidental to enumerated powers. TheFederalistNo. 45 (James Madison) (Clinton Rossitered., 1961). At the very least, this must mean that itis possible for someone to exit federal subject-matter

jurisdiction by ceasing to do whatever actionimplicated federal jurisdiction in the first place, e.g.

ceasing economic activities that are in the realm ofinterstate commerce. Or, conversely, if an action oncebrought someone into federal jurisdiction, such ascommitting a federal crime, then an unconditionalrelease must mean that the federal government hasrelinquished control. That control cannot returnwithout another action sufficient to bring the citizenback into Congresss jurisdiction. This dynamic is allthe more important because Congresss power withinits jurisdiction is generally thought to be plenaryand complete in itself, may be exercised to its utmost

extent, and acknowledges no limitations other thanare prescribed in the Constitution. United States v.Wrightwood Dairy Co., 315 U.S. 110, 119 (1942).


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II. MR. KEBODEAUXS DETENTION ISIMPROPER BECAUSE IT CANNOT BEJUSTIFIED WITHOUT GIVING CONGRESSUNLIMITED AUTHORITY TO REGULATEVIRTUALLY ALL AMERICANSIn NFIB v. Sebelius, 132 S. Ct. 2566 (2012), this

Court held that an inactive person could not bebrought under federal jurisdiction pursuant to theCommerce and Necessary and Proper Clauses if thatperson was not engaging in economic activity. Thepower to regulate commerce presupposes theexistence of commercial activity to be regulated. Id.at 2586. To hold otherwise, would bring countlessdecisions an individual couldpotentiallymake withinthe scope of federal regulation, and . . . empower

Congress to make those decisions for him. Id. at2587.

In NFIB, this Court understood that inactiveindividuals have a direct link to commerce and thatcompelling their behavior was arguably necessaryto regulating commerce. As Chief Justice Robertswrote, [t]o an economist, perhaps, there is nodifference between activity and inactivity; both havemeasurable economic effects on commerce. Id. at2589. Nevertheless, this Court found such a legal

command to be improper, even if necessary: IfCongress could reach beyond the natural limit of itsauthority and draw within its regulatory scope thosewho otherwise would be outside of it, then [e]ven ifthe individual mandate is necessary to the Actsinsurance reforms, such an expansion of federalpower is not a proper means for making thosereforms effective. Id. at 2592. To uphold thegovernments arguments would erode those limits,permitting Congress to reach beyond the natural


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extent of its authority, everywhere extending thesphere of its activity and drawing all power into itsimpetuous vortex. Id. at 2589 (quoting TheFederalistNo. 48 (James Madison)).

The theory by which the government seeks toregulate Mr. Kebodeaux would also improperlyextend the sphere of congressional power to anearly boundless degree. In NFIB, the governmentunsuccessfully argued that the possibility thatuninsured individuals may seek health care in thefuture made them active in the market for healthcare and thus regulable prior to actually enteringthe market. NFIB, 132 S. Ct. at 2589-90. Yet,because the class of those who may possibly enter themarket for health care is co-extensive with the class

of all U.S. citizens, Congress would by this theoryobtain a general police power akin to that possessedby the states.

The government claims that its assertion ofjurisdiction over Kebodeaux is not a major assertionof federal power because it is just an extension of aprevious registration requirement. Pet. Br. 20-27.But this argument would justify the gradualimposition of endless new requirements on anyonewho had previously been subject to federal

jurisdiction. If the federal government can use theinitial registration requirement imposed on Mr.Kebodeaux to justify the supposedly modest newrequirements of SORNA, it can then use SORNAitself to justify still further additional impositions,and so on. Each further step might be modest initself, but cumulatively they would amount tounlimited federal authority over anyone who hasever been held in federal custody or subject to anyfederal registration requirements.


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In this case, the theory proposed by the Petitioneris equally boundless, equally unprecedented, andequally as improper as the theory rejected by thisCourt in NFIB. At the time he was arrested forfailing to register his change of address, Mr.

Kebodeaux had no special relationship with thefederal government. His past crime had once placedhim under federal power. But, as the en banc FifthCircuit held, he was later properly released from that

jurisdiction.

Whether or not Congress has the power torequire federal sex offenders to register with statesex-offender registries following their release and topenalize their failure to do so, Pet. Br. at 33,because Mr. Kebodeaux was unconditionallyreleased

from federal control, he was not in a categoryproperlyunder federal jurisdiction. It would thus beimproper to permit Congress to compel him to actmerely because he was once convicted of a federalcrimeat least without a further jurisdictional hook,such as interstate travel. This jurisdictional gapfollows from the word unconditionally. The theoryproposed by the government is no different fromsaying that Congress has such an interest overanyone who ever committed any federal crime,because there is nothing that is constitutionally

special about sex crimes. Kebodeaux, 687 F.3d 232,242.

The government seeks to connect the likelihood ofa sex offenders future criminal behavior to its

justification for asserting jurisdiction and, in sodoing, articulate a limiting principle that confinesthat jurisdiction to sex offenders. It hopes this Courtwill rely on Congresss judgment that the federalgovernment has greater ties to former federal sex


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offenders than it does to other members of thegeneral public, whether those sex offenders wereunder federal criminal supervision at the time or hadcompleted their criminal terms[,] Pet. Br. at 34, aswell as the direct tie between the sexual nature of

the conviction and the resulting regulationobligation. Id. at 36. But sex offenders are far fromthe only ex-convicts who might commit additionalcrimes in the future. It is not clear why their ties tothe federal government are necessarily greaterthan those of people once imprisoned for murder,theft, securities fraud, or tax evasion.

The government performed an about-face on theCommerce Clause in the en banc Fifth Circuit.Kebodeaux, 687 F.3d. at 247 (calling it an about-

face that the Solicitor General has expressly deniedthat 2250(a)(2)(A) is constitutional as a regulationof the channels of interstate commerce[.]). Yet thegovernment still partially relies on the CommerceClause explicitly, see Pet. Br. at 50-51, by advancingthe theory that the government may monitor personsin the class of persons who had previously beenadjudicated federal sex offenders because they mightuse the channels of interstate commerce to evad[e]a States reach. Carr v. United States, 130 S. Ct.2229, 2238 (2010). In other words, part of the federal

governments justifiable interest in the class of sexoffenders is predicated on interstate commerceconcerns.

Ultimately, all of the governments analysis goesto the potential necessity of reaching thispreviously adjudicated but now released class offelons. SORNAs registration provision and criminalpenalty for federal sex offenders are means . . .reasonably adapted to the attainment of a


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legitimate end under the enumerated powers thatjustify the creation of the offenders statutes ofconviction. Pet. Br. at 31-32 (internal citationsomitted) (emphasis added). Section 2250(a)(2)(A) isreasonably adapted to serve those legitimate ends,

enforcing sex-offender-registration obligations forindividuals whose underlying federal offenses were ofa sexual nature. Id. at 33 (emphasis added). Thegovernment never addresses whether the rationaleby which it can reach these former offenders can besufficiently limited to be a proper assertion offederal power.

But it would be improper for Congress to assertperpetual jurisdiction over those unconditionallyreleased from federal jurisdiction based on the theory

that the previous reason for asserting jurisdictionover them creates greater ties to the federalgovernment that can justify imposing mandates onthis class. Yet this is precisely what the governmentunabashedly argues here: The logical basis forattaching a collateral registration consequence to afederal criminal conviction does not disappear at themoment of a prisoners release. As the Courtsdecision in Smithconfirms, a post-release impositionof a registration requirement serves the same valid

public-protection purposes as the registration

requirement imposed during supervised release.Pet. Br. at 35 (citing Smith v. Doe, 538 U.S. 84 at103-04 (2003) (holding that sex-offender registrationdoes not violate the Ex Post Facto Clause) (emphasisadded). In short, it is public protection thatprovides the logical basis for asserting a newfederal jurisdiction over previously releasedoffenders. But such a rationale is nothing more thanthe assertion of a police power over the general


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public akin to that possessed by the States. Andsuch a rationale cannot be limited to previously-released offenders.

The government uses this Courts sex-offenderregistry precedentse. g. Carr v. United States, 130S. Ct. 2229 (2010); Smith v. Doe, 538 U.S. 84 (2003);United States v. Comstock, 130 S. Ct. 1949 (2010)to underscore the special relationship between thefederal government and sex-offenders within federal

jurisdiction. In this way, the federal governmentseeks to breach the enumerated powers scheme of

Article I by stretching this Courts previous decisionsto ratify the governments theory that once in aspecial relationship; always in a specialrelationship. If permitted, this theory has no limits.

That this Court has previously given specialattention to a sub-class of people who are presentlywithin federal jurisdiction (e.g. sex offenders) doesnot mean that those who werepreviouslyin that sub-class, but are no longer, carry that specialrelationship with them forever. Recidivism iscommon with many categories of crimes. Under thegovernments theory that a post-release impositionof a registration requirement serves the same validpublic-protection purposes as the registration

requirement imposed during supervised release,Pet. Br. at 35, Congress can assert its perpetualauthority over anyone who has committed a federalcrime whenever it decides that a class of previouslyreleased criminals pose a sufficient risk of futurecriminal conduct.

The necessary element of the Necessary andProper Clause may allow Congress to make suchdeterminations about which class of criminals


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currently under federal jurisdictionpose significationrisks of future criminal conduct. The properelement, however, does not allow Congress to applythis logic in such a limitless manner to extend tothose who are no longer within its jurisdiction.

At bottom, the government bases its claim ofpower to compel the respondents conduct on the factthat he was previously under the jurisdiction of theUnited States and poses a greater risk to publicsafety than does the citizenry at large. Stripped to itsessence, the governments argument wouldultimately allow perpetual jurisdiction over anyonemerely because they were once subject to federal

jurisdiction and are now deemed to be dangerous tothe public.

Moreover, the governments theory cannot belimited to past federal criminals. After all, anyonewho was once under Congresss jurisdiction for anyreason may later pose a threat or an obstacle to afuture congressional goal. To allow Congress toregulate any citizen who was ever in federal

jurisdiction on this premise is to improperly giveCongress a vast and unbounded power.

In a sense, the governments theory treats federaljurisdiction like the Hotel California: You can enter

any time, you may even be able to check out, [b]utyou can never leave. The Eagles, Hotel California,on Hotel California (Asylum Records 1977).

Virtually everyone has entered federal jurisdiction atsome point in the past and will likely reenter it inthe future. But Congress lacks the ability toregulate an individual from cradle to grave, simplybecause he will predictably engage in particulartransactions, NFIB, 132 S. Ct. at 2591. For the same


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reasons, Congress cannot regulate an individual fromcradle to grave simply because he was once within its

jurisdiction. That cannot be the proper standard for aCongress whose powers are few and defined. TheFederalistNo. 45 (James Madison) (Clinton Rossiter

ed., 1961).

III.MR. KEBODEUXS DETENTION IS IMPROPERUNDER UNITED STATES V. COMSTOCKIn United States v. Comstock, this Court held

that Section 4248 of the Adam Walsh Act was validunder the Necessary and Proper Clause. 130 S. Ct.at 1956-67. That provision gave federal prisonofficials the power to detain sexually dangerous

federal prisoners after the completion of theirsentences. 42 U.S.C. 4248. The Court cited fivefactors justifying its decision to uphold Section 4248:(1) the breadth of the Necessary and Proper Clause,(2) the long history of federal involvement in thisarena, (3) the sound reasons for the statutesenactment in light of the Governments custodialinterest in safeguarding the public from dangersposed by those in federal custody, (4) the statutesaccommodation of state interests, and (5) thestatutes narrow scope. Id. at 1965; Cf. Ilya Somin,

Taking Stock of Comstock: The Necessary andProper Clause and the Limits of Federal Power,

2009-2010 Cato Sup. Ct. Rev. 239, 260-67 (discussingthe five factor test in detail).

We fully endorse the arguments offered byRespondent, Br. of Respt at 23-40, as well as thosearticulated by the Fifth Circuit en banc decision,Kebodeaux, 687 F.3d at 236-45, that explain why theComstockfactors cut against Kebodeauxs detention.


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Here, we highlight how the factors not only supportRespondents position, but also relate toconstitutional standards of propriety.

A. The Five Comstock Considerations WeighAgainst Mr. Kebodeauxs Detention.1. Mr. Kebodeauxs detention is notjustified by any long history of federalinvolvement in the relevant field.

Comstock described the post-detention civil-commitment of prisoners already in federal custodyas a modest addition to a longstanding history ofrelated federal action. Comstock, 130 S. Ct. at 1958.There is nothing modest about the governments

efforts to claim an endless special relationship withanyone ever convicted of a federal crime.

Examining the federal governments long historyof involvement in an area is primarily an inquiryinto the propriety of a law. Id. at 1965. A longhistory strongly implies that Washington, D.C. hasbeen properly respecting the traditional powers ofthe states. It certainly cannot be considered aninquiry into necessity, since novel extensions offederal power may often be convenient or useful

for a variety of federal purposes.Alexander Hamilton, who took a broader view of

federal power than almost any other Framer, madethis aspect of propriety very clear in Federalist 33.To illustrate the concept of an improper law, hereferred to one that attempt[ed] to vary the law ofdecent in any state, or one that undertake[s] toabrogate a land tax imposed by the authority of thestate. The FederalistNo. 33 (Alexander. Hamilton)


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(Clinton Rossiter ed., 1961). Obviously, stateinheritance laws and land taxes affect interstatecommerce. Abrogating those laws could surely beuseful or conducive to some end sought byCongress pursuant to its interstate commerce power.

But it would be improper for Congress to intrude inmatters of traditional state concern. Here there is noquestion of degree; it is a question of kind.

In Mr. Kebodeauxs case, being turned into apermanent ward of the federal government in thearea of criminal law intrudes on the traditional stateauthority over criminals within a states borders.Unquestionably, state authority over local criminallaws has historically been greater than federalauthority. Yet allowing Mr. Kebodeaux to be

imprisoned under the governments theory flips thatrelationship on its head.

What the government seeks here has never beenasserted before. In the words of the en banc lowercourt, The Department of Justice cannot find asingle authority from more than two hundred yearsof precedent, for the proposition that it can reassert

jurisdiction over someone it had long agounconditionally released from custody just becausehe once committed a federal crime. Kebodeaux, 687

F.3d at 238.

2. The government lacks sound reasonsfor maintaining control over Mr.Kebodeaux.In Comstock, this Court held that Congresss

continued commitment of sexually dangerousinmates for a period after their sentence ended was areasonably extended use of longstanding federal


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powers over its inmates. Comstock, 130 S. Ct. at1961. It therefore had sound reasons for seeking tomaintain control over Mr. Comstock. Id. at 1965.That reasoning only applies to those currently infederal custody. If the government believed that Mr.

Kebodeaux continues to pose a threat to thosearound him, then it should not have unconditionallyreleased him from federal control in the first place.

Given that Mr. Kebodeaux had been out of federalcustody for many years when the government soughtto reassert control over him, it is difficult to see whythere is any federal interest in detaining him thatwould not also apply to anybody in the United Stateswho might be considered dangerous in some way.

Moreover, it would be improper to allow Congress

to expand its jurisdiction so broadly and solimitlessly merely because it reasonably believesthat someone outside of its jurisdiction poses a threatto public safety. It is certainly reasonable to believethat once-convicted criminals pose a greater threat topublic safety than ordinary citizens. Again, however,this chain of reasonable links only applies to thenecessary part of the Necessary and Proper Clause.Even if reasonable, it would be improper to giveCongress such a great substantive, independent, and

boundless power.That this would be improper was admitted by

then-Solicitor General Elena Kagan in Comstock,when she conceded that the Federal Governmentwould not have . . . the power to commit a personwho . . . has been released from prison and whoseperiod of supervised release is also completed. Id. at1965. Thus, as the en banc Fifth Circuit put it, inthe instant case the government is reneging on


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precisely those concessions that caused the Court toreason that the civil-commitment statute wasnarrowly tailored to the governments role ascustodian in the responsible administration of itsprison system. Kebodeaux, 687 F.3d at 241 (quoting

Comstock, 130 S. Ct. at 1965).

3. Federal detention of Mr. Kebodeaux andothers similarly situated does notproperly accommodate state interests.The third Comstock factor asks whether a

statute properly accounts for state interests.Comstock, 130 S. Ct. at 1962. Like the considerationof whether a statute is part of a longstanding federal

involvement, this factor is relevant to proprietyrather than necessity. It can certainly be usefuland convenient for Congress to ignore stateinterestsand Congress often does. Yet in matters ofcore state concern, such as criminal law, it isimproper for Congress to trample state prerogativesmerely because it might be convenient to do so.

When Congress criminalizes conduct alreadymade illegal by the States, it effects a change in thesensitive relation between federal and state criminal

jurisdiction. United States v. Lopez, 514 U.S. 549,561 n.3 (1995) (quoting United States v. Emmons,410 U.S. 396, 411-12 (1973)). That change can meanthat Congress is punishing conduct more harshlythan the state wishes. When it comes to criminallawwhich is partially based on the theory that thecommunity is signaling its opprobrium for a type ofconductit is proper to allow for variance in thelevel of punishment among the differentcommunities that make up the United States.


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Unlike the statute at issue in Comstock, there isno provision here by which someone federallyprosecuted under SORNA can be subjected to statepenalties or transferred to state custody instead.Kebodeaux, 687 F.3d at 243. As the Fifth Circuit

noted, Texas does not wish to penalize Kebodeauxsconduct as harshly as the federal government. Id. at244 n.36 (Texas and forty-six other states do notsubstantially comply with SORNA.) It is impropernot to allow a state to deal with its own resident onits own terms if that resident has done nothing toput himself back in federal jurisdiction.

4. The sweeping federal authority assertedby the government is not narrow inscope.

A fourth Comstock consideration is whether thelink between the statute and an enumerated ArticleI power is not too attenuated and the application ofthe statute is not too sweeping in its scope.Comstock, 130 S. Ct. at 1963. As explained supra,the logic behind that application gives rise to agreat and independent power that is essentiallyboundless. Moreover, the necessary link is not justattenuated, it is nonexistent.

The concern for a statutes narrowness is alsohighly related to propriety rather than necessity.Under a pure means/end analysis, both broad andnarrow statutes might be useful or conducive tocarrying into execution an Article I power. Instead,concerns about narrowness are more concerns aboutimproperly unbounded powers given to a governmentwith limited power. Giving Congress perpetual

jurisdiction over anyone who has ever committed a


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federal crime or, possibly, anyone who has everentered federal jurisdiction is an expansive andbroad power.

5. The scope of the Necessary and ProperClause.Although the scope of the Necessary and Proper

Clause is unquestionably relevant to any inquiry intothe Clause, it cannot decide this or any case by itself.Since this factor is identical in every case, it cannotby itself justify upholding a statute. If it could, theother four considerations would be superfluous. Inthis case, all four other factors count against thefederal governments position, and that position

cannot be saved by relying on platitudes about thebroad scope of the Clause. Furthermore, the scope ofthe Clause cannot be merely asserted as a factor ina test when the reach of the Clause is precisely thequestion at issue. See Ilya Shapiro & Trevor Burrus,Not Necessarily Proper: Comstocks Errors &

Limitations, 61 SYRACUSE L.REV. 413, 419 (2011).

In sum, four of the five Comstock factors cutagainst the government in this case. And the onlyone that does not cannot be determinative.


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CONCLUSIONFor the foregoing reasons, we respectfully ask this

Court to affirm the decision of the en banc FifthCircuit.

Respectfully submitted,

ILYASOMINCounsel of Record

GEORGE MASON UNIVERSITYSCHOOL OF LAW3301 Fairfax Drive,

Arlington, VA 22201(703) [email protected]

ILYASHAPIROCato Institute1000 Mass. Ave., NWWashington, D.C. 20001(202) [email protected]

APRIL3, 2013

Documents

United States v. Kebodeaux