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Hastings Constitutional Law Quarterly

Abstract

Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision of the Adam Walsh Child Protection and Safety Act of 2006 Was within Congress's authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers.

The discussion will begin with and overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to regulate this subject, the Commerce Clause, is wholly inapplicable to an act like the Commitment Provision-legislation aimed at criminal law enforcement where States historically have been sovereign.

Next will be and evaluation of the current split between the Fourth and Eighth Circuits, which will show that only the Fourth Circuit performed an analysis of the relevant Supreme Court law and found the Commitment Provision unconstitutional under those precedents. The Eighth Circuit, on the other hand, relied only on its own, distinguishable precedents. Thus the only Circuit court to have analyzed the constitutionality of the Commitment Provision under Supreme Court precedent has found it to be unconstitutional.

Finally, this note will show that the Commitment Provision does not satisfy the due process rationales for which the Supreme Court has found state-authorized civil commitment constitutional. The structure of the Commitment Provision neither comports with the classic rationale for lower proof burdens in state civil commitment schemes, nor does it provide for a probable cause hearing within a reasonable amount of time and the general practice is to keep prisoners locked for months beyond their release dates.

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