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View Diary: SCOTUS: Congress Can Lock Up Sexually Dangerous Persons (371 comments)

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  •  There's... (8+ / 0-)

    a system for challenging a civil confinement decision in place that is presumed for purposes of this decision to satisfy due process.  The question at stake in this case is not "is civil confinement a violation of due process?" or "is allowing civil confinement good policy?"  It was simply "is allowing Congress to pass a law governing this issue within Article I of the Constitution?"

    The hard right "limited government power" folks have been very smart in choosing cases in recent years in an effort to win parts of the left over to their narrow view on Congressional power under the commerce clause--this one, the medical marijuana one (Raich), using Kelo as "smash corporations!"  We need to recognize this strategy and be prepared to combat it.

    •  I would otherwise agree (1+ / 0-)
      Recommended by:
      Deadicated Marxist

      but this is not an area of the law where states are incompetent to regulate (as they are in national markets).  A state vs. federal civil confinement proceeding presents no material difference (as states have to abide by the federal due process clause) but states don't face the limit on enumerated powers.  This is even less of "economic activity" than what the Court struck down in Lopez (gun possession in schools) and Morrison (violence against women).

      Lest I praise Justice Thomas too much, he did dissent from an opinion striking down life in prison w/o parole for juvenile offenders for non-murder cases.

      "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

      by Loge on Mon May 17, 2010 at 09:52:43 AM PDT

      [ Parent ]

      •  It's a gap-filling statute (2+ / 0-)
        Recommended by:
        BachFan, condorcet

        The problem was that states didn't want to take on the costs of confining these people post-federal sentence.

        •  who cares? (1+ / 0-)
          Recommended by:
          condorcet

          why is that the federal government's problem?  The federal government takes on law-making power based on states' exercise of their budgetary priorities?

          Conceivably, that could be economic activity or that the statute could be justified under the "spending power," but that argument proves too much.  States don't want to spend money to prosecute gun cases in school zones?  Morrison invalidated specific findings that states were not adequate to address violence against women and that the pervasiveness of the problem was national in scope.  

          "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

          by Loge on Mon May 17, 2010 at 10:15:23 AM PDT

          [ Parent ]

      •  Why are you talking about Commerce Clause cases? (0+ / 0-)

        The one we're discussing is based on the Necessary and Proper Clause.

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