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Supreme Court justices appear split on US sex offender law

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The case represents an important test of how the court under Chief Justice John Roberts views the balance of power between the states and the national government

It is also an opportunity for the court to clarify its vision of the scope of the Constitution’s necessary and proper clause. The clause gives Congress the power "to make all laws which shall be necessary and proper for carrying into Execution ... powers vested by this Constitution in the government of the United States."

Section 4248’s civil commitment procedure has no direct tie to the traditional source of congressional power: the regulation of interstate commerce under the commerce clause. So Solicitor General Kagan is arguing that it is supported through the Constitution’s necessary and proper clause as a necessary feature of the federal criminal justice and penal system. 

Mr. Dubois urged the justices to reject such an expansive view of the necessary and proper clause.

Justice Antonin Scalia was an enthusiastic ally for Dubois.

At one point he told the solicitor general: “This is a recipe for the federal government taking over everything.”

Justice Scalia said the necessary and proper clause doesn’t exist in the Constitution to authorize the federal government to do whatever is necessary and proper for the good of society. Rather, he said, the clause is designed to authorize federal action tied to an enumerated power of the national government.

Kagan replied that the federal civil commitment program was necessary and proper to the responsible administration of the federal criminal justice system. She said Congress was aware that sometimes states were unwilling to take charge of dangerous sexual offenders upon release from federal custody. If the federal government didn’t act, these dangerous individuals might be freed, she said.

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