4-8-2009 National:
In answer to a few reader questions here is a general rundown of what recently occurred.
Background: State Civil commitment schemes were declared constitutional under the Clinton administration. see Kansas v. Hendricks, 521 U.S. 346 (1997). Now, the question today is, are federal civil commitment schemes constitutional (AWA enacted one)?
Lets go back to the beginning in North Carolina:
2007: North Carolina Federal District court declares AWA (portion about civil commitment) unconstitutional. i.e. Holding Congress did not have the power to enact FEDERAL civil commitment schemes. Note: NC Federal Dist. court is part of the Federal 4th Circuit.
2008: Then the NC Dist court decision is appealed to the 4th Cir Federal Court of Appeals. However, the 4th cir agrees with the lower district court. i.e. Holding Congress did not have the power to enact FEDERAL civil commitment schemes.
Note-1: So far the ONLY place this decision is VALID is in the 4th circuit (NC, VA, SC WV), no other circuit is required to follow it.
Note-2: The next step is to the U.S. Supreme court, and because an act of Congress is involved, the lawyer who handles the case for the United States is the Solicitor General, also part of the Justice Department.
Note-3: The job of the Solicitor General is to prove that any law previously enacted by Congress is valid, he is not allowed any personal opinion, he must follow what his job requires him to do. Under these circumstances he had NO DISCRETION, he cannot ignore that the lower decision INVALIDATED a congressional act, which are always presumed constitutional, and because of that decision (which also contained a HIDDEN question of public safety), HE MUST Appeal to the U.S. Supreme court and allow them the final say.
Note-4:Can the public influence the SOlicitor General? No, no matter who says what, even if 10 million folks contacted him, he must ignore them because his job is to represent the U.S. and prove that previously enacted federal laws are constitutional; its his job even if his personal opinion is otherwise. However, there are additional special circumstances a constitutional Act is involved and a question of public safety. Where did the question of public safety come from? Read on.
2009: So the Solicitor General appeals the 4th Cir decision to the U.S. Sup ct. Now so far we do not know exactly what he put in the appeal, as to the sex offenders which were being held, but we do know what the Judges of the 4th Circuit advised.... They wrote the following on the last two pages of their decision:
"For these reasons, we can only conclude that the district court correctly held § 4248 unconstitutional. The challengers have made a "plain showing" that, in enacting § 4248, Congress exceeded its constitutional authority. Morrison, 529 U.S. at 607.
Our holding, however, does not require that the Government’s legitimate policy concerns go unaddressed. If the federal government has serious concerns about the dangerousness of a person due to be released from federal prison, it can notify state authorities, who may use their wellsettled police and parens patriae powers to pursue civil commitment under state law. See generally Kansas v. Hendricks, 521 U.S. 346 (1997).
Moreover, if the relevant state authorities prove reluctant to take charge of such persons, the Government is not without recourse. The federal government may, for example, wield its spending power to encourage state action, see U.S. Const. art. I, § 8, cl. 1 (granting Congress the power to allocate funds to promote the "general Welfare"), by providing funding to state institutions for this purpose. Cf. South Dakota v. Dole, 483 U.S. 203, 209-12 (1987). But Congress’s perceived need for the sort of civil commitment statute at issue here does not create constitutional power where none exists. See Morrison, 529 U.S. at 627. Congress must instead seek alternative, constitutional means of achieving what may well be commendable objectives.
The power claimed by § 4248—forcible, indefinite civil commitment—is among the most severe wielded by any government. The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers. "[T]hat those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Section 4248 thus cannot be sustained as an exercise of Congress’s authority under the Commerce Clause or any other provision of the Constitution. For these reasons, we affirm the judgment of the district court. AFFIRMED"
So, the question of public safety came from the judges of the 4th cir. Given they raised the issue, the Solicitor General cannot ignore that, which effectively kills any discretion he has at times. Now, when the appeal was filed in the U.S. Sup court, Chief Justice Roberts jumped in:
"Robert's O R D E R
UPON CONSIDERATION of the application of the Solicitor General,
IT IS ORDERED that the mandate of the United States Court of Appeals for the Fourth Circuit, case No. 07-7671, is hereby stayed pending the disposition of the petition for a writ of certiorari. See Walters v. National Assn. of Radiation Survivors, 468 U. S. 1323 (1984) (Rehnquist, J., in chambers) (“The presumption of constitutionality which attaches to every Act of Congress is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships”). Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court."
This is tricky, But Roberts DID NOT order the sex offenders held (see above), he stayed the 4th cir decision, which means that decision cannot be carried out (a portion of it would have ultimately resulted in release of the sex offenders). Don't you just love how the law works?
So everything that has occurred is nothing more than steps in the appellate process when a lower court declares an Act of Congress unconstitutional, and the belief of public safety issues.
And now we wait................
eAdvocate
BTW: Another federal district court held AWA Civil Commitment unconstitutional. See
MA- Massachusetts District Court Finds Civil Commitment Law Unconstitutional
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