THE SUPREME COURT OF THE UNITED STATES
FALL TERM, 2009
DOCKET NO. 01-01234
UNITED STATES OF AMERICA,
Petitioner,
v.
BRYCE ELLIS,
Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
Brief for Petitioner
Team #P4
Issue #1
Nora Stiles - (619) 756-3108
Table of Contents
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii
QUESTIONS PRESENTED
. . . . . . . . . . . . . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS AND RULES
. . . . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE
. . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. THE NECESSARY AND PROPER CLAUSE ENDOWS CONGRESS WITH THE
CONSTITUTIONAL AUTHORITY NECESSARY TO ENACT 18 U.S.C. §
4248. . . . . . . . . . . . . . . . . . . . . . . . . 5
a. The Necessary and Proper Clause authorizes
Congressional action to execute fully an express
power. . . . . . . . . . . . . . . . . . . . . . .
5
b. Sections 2251 and 2252 are valid exercises of
Congress’ regulatory power under the Commerce Clause.
. . . . . . . . . . . . . . . . . . . . . . . . . . 7
c. Section 4248 is authorized by the Necessary and Proper
Clause because, as the keystone to a regulatory
scheme, it enables Congress to exercise and enforce
Sections 2251 and 2252. . . . . . . . . . . . . . . .8
d. The “substantially affects” test, as applied in Lopez
and Morrison, does not render Section 4248
unconstitutional. . . . . . . . . . . . . . . . . 12
(1)
CONCLUSION
Section 4248 contains a jurisdictional
element. . . . . . . . . . . . . . . .
(2)
Section 4248 is not overinclusive . . . 13
(3)
Section 4248 does not impinge on states’
authority . . . . . . . . . . . . . . . 14
. . . . . . . . . . . . . . . . . . . . . . . . . 15
i
13
Table of Authorities
Cases
Burroughs v. United States, 290 U.S. 534 (1934)
Gonzales v. Raich, 545 U.S. 1 (2005) . . . . . .
. . . . . . 14
7,8,9,10,12,13
Greenwood v. United States, 350 U.S. 366 (1956) . . . . . . 9,11
Jinks v. Richland County, 538 U.S. 456 (2003) . . . . . . . . 6
McCulloch v. Maryland, 17 U.S. 316 (1819) . . . . . . . . .
5,6
United States v. Darby, 312 U.S. 100 (1941) . . . . . . . . . 6
United States v. Lopez, 514 U.S. 549 (1995) . . . . . . .
12,13
United States v. Morrison, 529 U.S. 598 (2000) . . . . . 6,12,13
Constitutional Provisions
U.S. Const. art. I, sec. 8, cls. 3
. . . . . . . . . . . . 7
U.S. Const. art. I, sec. 8, cls. 18
. . . . . . . . . . . . 5
Statutes
18 U.S.C. § 4247 (2006)
. . . . . . . . . . . . . . . . . 11,13
18 U.S.C. § 4248 (2006) . . . . . . . . . . . . . . . 4,13,14,15
18 U.S.C. § 2251 (2006) . . . . . . . . . . . . . . . . . . .
18 U.S.C. § 2252 (2006) . . . . . .
7
. . . . . . . . . . . . . 7
Legislative Material
H.R. Rep. No. 109-218, pt. 1, 20-30 (2005) . . . . . . .3,4,7,10
ii
Questions Presented
Issue 1: Whether Congress had the constitutional authority to
enact 18 U.S.C. § 4248, which authorizes court-ordered civil
commitment by the federal government of “sexually dangerous”
persons who are already in the custody of the Bureau of Prisons,
but who are coming to the end of their federal prison sentences?
Opinions Below
999 F.9th 999 (12th Cir. 2009)
Constitutional Provisions and Rules
U.S. Const. art. 1, sec. 8, cls. 3
U.S. Const. art. 1, sec. 8, cls. 18
18 U.S.C. § 4247
18 U.S.C. § 4248
18 U.S.C. § 2251
18 U.S.C. § 2252
1
Introduction
Issue 1:
Section 4248 establishes federal authority for civil
commitment of sexually dangerous persons.
Respondent Ellis
challenges the constitutionality of Section 4248, on the grounds
that the statute exceeds Congress’ Commerce Clause power.
As
the Necessary and Proper Clause provides Congress with the
constitutional authority to enact Section 4248 as a crucial
component of a regulatory scheme, Petitioner respectfully
requests that this Court reverse the Twelfth Circuit.
First, the Necessary and Proper Clause authorizes
Congressional action to execute and enforce an enumerated power.
The Supreme Court has historically interpreted the Necessary and
Proper Clause as a source of constitutional authorization for
legislative action in furtherance of the regulation of
interstate commerce.
Second, Sections 2251 and 2252, which
criminalize the sexual exploitation of minors and the interstate
market for child pornography, are valid legislative regulations.
The constitutional validity of Sections 2251 and 2252 are not
challenged; the express goal of banning a commercial commodity,
child pornography, from the interstate market clearly falls
within Congress’ commerce clause powers.
Third, Section 4248 is
authorized by the Necessary and Proper Clause because it is an
2
essential element of a comprehensive regulatory scheme.
Section
4248 enables Congress to combat sexual predators’ recidivism
rates, a dangerous reality that threatens the efficient
enforcement of Sections 2251 and 2252.
Finally, the
‘substantially affects’ test does not render Section 4248
unconstitutional, because the statutory language of Section 4248
restricts its jurisdiction and application.
The limited
applicability of Section 4248 ensures that Congress does not
overreach into states’ jurisdiction or impinge on states’
authority.
Statement of the Case
Issue 1:
While no one would deny that the sexual exploitation of
children is a problem in America, recent studies have exposed
its prevalence and reach.
(2005).
H.R.Rep. No. 109-218, pt. 1, 20-30
The depth of the problem is overwhelming, especially
when one considers that the sexual victimization of juveniles is
underreported: “1 in 5 girls and 1 in 10 boys are sexually
exploited before they reach adulthood, yet less than 35 percent
of these assaults are reported to authorities.”
Id.
The study
further revealed that one out of every seven victims of sexual
assault was under the age of six.
Id.
The widespread availability of child pornography on the
Internet indicates that sexual exploitation of minors is on the
3
rise.
Id.
The Internet provides users with both anonymity and
immediate access.
Id.
Child pornography has thus become a
commodity, which is traded across state lines through the use of
the Internet.
Id.
Congress criminalized the sexual
exploitation of children, as well as the distribution and
possession of child pornography, through 18 U.S.C. §§ 2251,
2252.
(R. at 9).
In 2006, Congress passed the Adam Walsh Protection and
Safety Act, which includes 18 U.S.C. § 4248 (2006).
(R. at 2).
Included in the Act was Section 4248, which authorizes the
government, pursuant to procedural safeguards, to civilly commit
sexually dangerous persons.
18 U.S.C. § 4248 (2006).
Only
twenty-one states have civil commitment statutes for sexually
dangerous prisoners.
(R. at 9).
Congress intended the Act to
be a “comprehensive bill to address the growing epidemic of
sexual violence against children” and to “address loopholes and
deficiencies in existing laws.”
(R. at 2).
The legislative
history explains one such loophole, the problematic rate of
recidivism for sex offenders: “Released sex offenders are four
times more likely to be rearrested for a sex crime than released
non-sex offenders.”
H.R.Rep. No. 109-218, pt. 1, 20-30 (2005).
Additionally, access to child pornography may “reinforce sexual
predators … or motivate those who have contemplated assaulting a
child to do so.”
Id.
4
Respondent Ellis pled guilty to violating § 2252(a).
at 3).
Ellis knowingly received child pornography.
sentenced to thirty-two months in federal prison.
Id.
Id.
(R.
He was
Unless
civilly committed pursuant to Section 4248, he will soon reenter
society.
Id.
Argument
I. THE NECESSARY AND PROPER CLAUSE ENDOWS CONGRESS WITH THE
CONSTITUTIONAL AUTHORITY NECESSARY TO ENACT 18 U.S.C. §
4248.
a. The Necessary and Proper Clause authorizes
Congressional action to execute fully an express
power.
The Necessary and Proper clause states: “The Congress shall
have Power to make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers and all other
Powers vested by this Constitution…” U.S. CONST. art. 1, sec. 8,
cl. 18.
The Supreme Court recognized early on that, considering the
national reliance on Congress to fulfill their delegated duties,
Congress “must also be entrusted with ample means for their
execution.”
McCulloch v. Maryland, 17 U.S. 316, 408 (1819).
If
the Constitution expressly delegates certain powers exclusively
to Congress, then, in the interest of effective government,
Congress must also be authorized to take action in furtherance
of fulfilling those national duties.
5
The Necessary and Proper
Clause’s terms therefore “purport to enlarge, not to diminish
the powers vested in the government.”
Id. at 420.
When the legislature acts in furtherance of its enumerated
powers through the Necessary and Proper Clause, the judiciary
does not require the legislation to be ‘absolutely necessity.’
Id. at 413.
“It is enough that a statute is conducive to the
due administration of justice in federal court, and is plainly
adapted to that end.”
462 (2003).
Jinks v. Richland County, 538 U.S. 456,
Furthermore, the courts presume constitutionality
of such statutes, invalidating only “upon a plain showing that
Congress has exceeded its constitutional bounds.”
v. Morrison, 529 U.S. 598, 607 (2000).
United States
If legislation exerts
control over intrastate activities and is challenged on the
basis that Congress acted outside of their enumerated powers,
the courts will uphold legislation “when the means chosen,
although not themselves within the granted power, were
nevertheless deemed appropriate aids to the accomplishment of
some purpose within an admitted power of the national
government.”
United States v. Darby, 312 U.S. 100, 121 (1941).
Through the presumption of constitutionality and its examination
of the means in relation to the exercise of enumerated power,
the Supreme Court has thus historically interpreted the
Necessary and Proper Clause as authorizing Congress to take
6
appropriate action that enables the exercise and enforcement of
an express power.
b. Sections 2251 and 2252 are valid exercises of
Congress’ regulatory power under the Commerce Clause.
The Commerce Clause empowers Congress to “regulate Commerce
with foreign Nations, and among the Several States, and within
the Indian Tribes.”
US CONST. art. I, sec. 8, cls. 3.
In 2006,
Congress enacted 18 U.S.C. §§ 2251 and 2252 to criminalize the
sexual victimization of minors and the possession or
distribution of child pornography.
18 U.S.C. §§ 2251, 2252
(2006).
According to the legislative findings, the widespread
availability of child pornography on the Internet is one of the
greatest indicators that the sexual exploitation of minors is
increasing in the United States.
20-30 (2005).
H.R.Rep. No. 109-218, pt.1,
The Internet provides immediate access, as well
as the emboldening cloak of anonymity.
Id.
Child pornography
has thus become a commodity, traded across state lines and
easily transmitted from pedophile to pedophile.
Id.
It is not debated that the Constitution authorizes Congress
to enact Sections 2251 and 2252.
“It has long been settled that
Congress’ power to regulate commerce includes the power to
prohibit commerce in a particular commodity.”
Raich, 545 U.S. 1, 19 (2005).
Respondent Ellis does not
7
Gonzales v.
challenge the validity of Sections 2251 or 2252.
guilty to violating §2252(a).
Ellis pled
Ellis knowingly received child
pornography, and was therefore sentenced to thirty-two months in
federal prison.
c. Section 4248 is authorized by the Necessary and Proper
Clause because, as the keystone to a regulatory
scheme, it enables Congress to exercise and enforce
Sections 2251 and 2252.
The Necessary and Proper Clause authorizes Congress to
create thorough regulatory schemes in order to effectively
legislate within their Commerce Clause powers.
In Gonzales, 545
U.S. at 7-8, two California residents, who produced and consumed
medical marijuana, challenged the constitutionality of enforcing
the Controlled Substances Act (“CSA”) in California.
The Court
held that the locally grown and used marijuana, which never
crossed state lines, was nonetheless subject to federal
prohibition under the CSA.
Id. at 32-33.
The Court identified
the CSA as “a comprehensive regulatory scheme specifically
designed to regulate which controlled substances can be used for
medicinal purposes, and in what manner.”
Id. at 27.
The Court
reasoned that Congress “had a rational basis for believing that
failure to regulate the intrastate manufacture and possession of
marijuana would leave a gaping hole in the CSA.”
Id. at 22.
Therefore, Congress was acting within the authority granted by
the Necessary and Proper Clause, pursuant to their Commerce
8
Clause authority.
Id. at 22.
The reach of the federal
legislation was lawful because it was necessary to Congress’
ability to execute fully its express power, the regulation of
interstate commerce.
Reinforcing this position is the holding in Greenwood v.
United States, 350 U.S. 366, 375, (1956), which validated the
constitutionality of a civil commitment process for dangerous or
mentally ill federal prisoners.
Greenwood was arrested for
robbing a post office, but the district court found him to be
insane and therefore unable to stand trial.
Id. at 373.
Pursuant to a civil commitment statute for the mentally ill and
insane, Greenwood was transferred to the custody of the Attorney
General.
Id. at 372.
Federal custody would last until his
sanity was restored, he was no longer dangerous, or until his
state of residence assumed custody.
Id. at 372.
The Supreme
Court held that, although there was little likelihood that
Greenwood would ever recover, the statute was constitutionally
valid.
Id. at 375.
The court’s reasoning, though brief,
clearly stated that the statute was “within congressional power
under the Necessary and Proper Clause.”
Id. at 375.
As in Raich, 545 U.S. at 22, where the comprehensive
legislation was necessary to avoid a “gaping hole in the CSA,”
Congress intended the Adam Walsh Protection and Safety Act to be
a “comprehensive bill to address the growing epidemic of sexual
9
violence against children” and to “address loopholes and
deficiencies in existing laws.”
30 (2005).
H.R.Rep. No. 109-218, pt.1, 20-
Section 4248’s civil commitment process enables
Congress to close a uniquely challenging hole in prior
legislation: sexual predators’ rate of recidivism.
The legislative findings establish that released sex
offenders are four times more likely to be rearrested for a sex
crime than other released offenders.
1, 20-30 (2005).
H.R.Rep. No. 109-218, pt.
As discussed above, Sections 2251 and 2252
criminalize the sexual exploitation of children and the exchange
of child pornography, a perverse commodity with an interstate
market.
Access to child pornography may “reinforce sexual
predators … or motivate those who have contemplated assaulting a
child to do so.”
Id.
As detailed below, Section 4248 is the
keystone to the entire regulatory scheme that seeks to eradicate
the interstate market for child pornography.
Sexual predators’ high recidivism rate renders Sections
2251 and 2252 ineffective in achieving their main purpose, which
is to protect children from sexual victimization.
Section 4248
cures this frustration of purpose by preventing dangerous
convicts from reentering society and recommitting their crime
with a new, young victim.
Just as the Controlled Substances Act
in Raich required a thorough regulatory system that targets the
complexities of the interstate drug trade, Congress’ legislation
10
to eradicate the interstate market for child pornography
requires a preventive scheme that combats the recidivism rate of
sexual predators.
Section 4248 breaks sexual predators’ vicious
cycle, the horrific strings of sexual victimization,
imprisonment, and subsequent release.
Only twenty-one states
have civil commitment statutes for sexually dangerous prisoners,
which further establishes that only Congress has the tools
necessary to implement a national, preventative measure in order
to complete the regulatory structure.
Section 4248 is thus
necessary to achieve Congress’ valid regulation of an interstate
market; therefore, the Necessary and Proper Clause authorizes
Section 4248 because it allows Congress to effectively exercise
its Commerce Clause power.
Applying the Supreme Court’s holding and reasoning in
Greenwood supports the conclusion that the Necessary and Proper
Clause authorizes Congress to enact Section 4248.
Sexually
dangerous federal prisoners, who engaged (or attempted to
engage) in sexually violent conduct or child molestation and who
suffer from a mental illness, are likely to frustrate the
purpose of Sections 2251 and 2252.
18 U.S.C. § 4247 (2006).
sexually dangerous person who reenters society will probably
seek out more child pornography, possibly sexually assault a
child, or both.
As in Greenwood, the civil commitment is
11
A
constitutionally valid, regardless of its probable length,
through the Necessary and Proper Clause.
d. The “substantially affects” test, as applied in Lopez
and Morrison, does not render Section 4248
unconstitutional.
In both United States v. Lopez, 514 U.S. 549, 567 (1995)
and Morrison, 529 U.S. at 627, the Supreme Court found federal
legislation unconstitutional, reasoning that the congressional
enactments exceeded Congress’ authority to regulate commerce
under the Commerce Clause.
In Lopez, 514 U.S. at 558, the Court
identified “three broad categories of activity that Congress may
regulate under its commerce power.”
These categories included:
the channels of interstate commerce, the instrumentalities of
interstate commerce, and activities that “substantially affect”
interstate commerce.
Id. at 559.
The Court further explained:
“Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be
sustained.”
Id. at 560.
Unlike the congressional enactments in Lopez and Morrison,
Section 4248 is part of a comprehensive legislative scheme that
directly regulates economic, commercial activity. Raich thus
controls the outcome: the Necessary and Proper Clause provides
Section 4248 with its constitutional authority.
There are,
however, three additional factors which demonstrate that
Congress has not reached past its constitutional authority: (1)
12
Section 4248 contains a jurisdictional element, (2) Section 4248
is not overinclusive, and (3) Section 4248 does not impinge on
States’ authority.
(1)
Section 4248 contains a jurisdictional
element.
The language in Section 4248 limits its application to
individuals already in federal custody.
Section 4248 clearly
reads: “Institution of Proceedings. - In relation to a person
who is in the custody of the Bureau of Prisons…”
4248(a)(2006)(emphasis added).
18 U.S.C. §
This opening qualification
restricts the statute by requiring that the federal government
commence civil commitment proceedings only where the federal
government has already established its jurisdiction over the
prisoner.
The statutes invalidated by Lopez and Morrison lacked
a jurisdictional element.
Raich, 545 U.S. at 23-25.
The
jurisdictional element in Section 4248 thus supports the above
conclusion that Section 4248 is one part of a comprehensive
regulatory scheme.
(2)
Section 4248 is not overinclusive.
The statutory definition of a sexually dangerous person
applies to an individual who has “engaged or attempted to engage
in sexually violent conduct or child molestation … and … suffers
from a serious mental illness, abnormality, or disorder…” 18
U.S.C. § 4247 (2006)(emphasis added).
13
The Government must
therefore establish two elements at the hearing: i) the
prisoner’s sexually violent history, and ii) the prisoner
suffers from a mental illness.
Such a narrow definition
supports the conclusion that Section 4248 is not to be read in
isolation.
Section 4248 is not overinclusive because its own
language narrows its applicability to sexually violent
individuals with mental disorders.
Section 4248 thus allows
Congress to efficiently enforce the two underlying statutes,
Sections 2251 and 2252.
Furthermore, should the Court view Section 4248
overinclusive in some other respect, Congress is entitled to
some deference in their statutory constructions: “If it can be
seen that the means adopted are really calculated to attain that
end, the degree of their necessity, the extent to which they
conduce to the end, the closeness of the relationship between
the means adopted and the end to be attained, are matters for
congressional determination alone.”
Burroughs v. United States,
290 U.S. 534, 547-548 (1934).
(3)
Section 4248 does not impinge on States’
authority.
Section 4248 requires the Attorney General to release the
sexually dangerous federal prisoner to state custody.
“The
Attorney General shall release the person to the appropriate
official of the State in which the person is domiciled or was
14
tried if such State will assume responsibility for his custody,
care, and treatment.”
18 U.S.C. § 4248(d)(2006)(emphasis
added).
In statutory construction, “shall” translates to
“must.”
Requiring the transfer to state custody shows that
state control over the individual is preferred.
Once the
sexually dangerous person is in a state’s custody, the federal
government has relinquished control.
Therefore, Section 4248
does not impinge on States’ authority.
In summary, the Necessary and Proper Clause gives Congress
the constitutional authority to enact Section 4248.
As a
crucial element of a comprehensive legislative scheme, Section
4248 allows Congress to execute and enforce regulation of the
interstate market for child pornography.
Section 4248’s
statutory construction ensures its limited applicability, which
reinforces its reading as one element of a comprehensive
regulation of an interstate market.
Conclusion
For the reasons set forth above, the Petitioner, the United
States of America, respectfully requests that the Supreme Court
reverse the decision of the Twelfth Circuit and hold that 18
U.S.C. § 4248 (2006), which authorizes court-ordered civil
commitment by the federal government of sexually dangerous
15
persons already in federal custody, is constitutionally valid
under the Necessary and Proper Clause.
Respectfully Submitted,
______________________
Nora Stiles
Attorney for Petitioner
16