Extraconstitutional Kagan: Unnecessary & improper

5-25-2010 National:

As solicitor general, U.S. Supreme Court nominee Elena Kagan argued for the same misguided outcome -- and the same dubious constitutional reasoning behind that outcome -- that the United States v. Comstock majority announced this month.

Just as she urged, that majority further -- and wrongly -- overstretched the Constitution's "necessary and proper" clause to uphold indefinite "civil commitment" of mentally ill federal sex offenders who've completed their sentences.

That practice should have been struck down because, as Justice Clarence Thomas noted in his dissent, the civil commitment law does not "execute any enumerated power" (his emphasis) of Congress.

Thus, Ms. Kagan seems unlikely to vary from the expansive view of "necessary and proper" held by the Comstock majority -- which included Justice John Paul Stevens. His impending retirement prompted liberal President Obama, hoping to replace one liberal justice with another, to nominate her.

Kagan has no judicial experience. Papers she wrote decades ago are being parsed for clues about her legal philosophy. For insight into her current thinking, senators should -- at the very least -- pose pointed questions to Kagan about her Comstock role at her confirmation hearings. ..Opinion.. of TribLive