Hendricks was still confined, at the age of 72, a couple of years ago. At a state hospital.
This was the first of several cases, starting in 1997, regarding commitment procedures for sex offenders.
Notice that the statute talks about "long-term care," as though it were a nursing home. It was based on the WA statute, which had been upheld by the WA courts. So you had to be:
At his hearing, incidentally, Hendricks doesn't have the privilege of not testifying: it's not a criminal trial. And sure enough, he admits he will do it again.
Initially there was no treatment, but by the time it reached SCOTUS, he was getting something like 30 hours/week. He was the first case, though, so they didn't have their act together at first.
Hendricks says that regardless of the procedures, this act is unconstitutional. That's a classic substantive due process claim: no matter what procedures you supply, you can't confine me on these grounds. Just "dangerousness" isn't enough for confinement: at the very least, you should have to diagnose a mental illness (as evaluated by a psychiatrist), and pedophilia isn't one of those.
Boumediene argued sort of like this: you can't hold me indefinitely as an enemy combatant. Of course, the court didn't go that way, and focused on the procedures.
Anyway, SCOTUS grants cert, and 5-4 upholds the KS statute.
The dissent says this isn't a civil commitment at all: it's a criminal statute in disguise. The ex post facto (by interpretation) and the double jeopardy clause (explicitly) apply only to criminal cases.
The majority says this doesn't serve either punishment or deterrence (he can't BE deterred-- that's the whole problem). It does serve incapacitation and rehabilitiation policies, but those are the core of civil commitment as well.
This sure looks like straight-up preventive detention. Of course, it only applies to people who have already been convicted (in Hendricks's case, 5 times, and he admits he'll do it again). Civil commitment is the recognized exception to the prohibition against preventive detention, and it is difficult to get someone civilly committed (for good reason: it's obvious that it could be abused).
Since these acts started to get passed (early 1990s), about 3,000 people have been confined in about 20 states. Only 50 have been pronounced "cured" and released (some have gotten out for medical hardships, etc.).
Would Hendricks have plea-bargained, had he anticipated these consequences? The statute hadn't even been written when he struck that bargain (of course, had he been convicted, he might be in the same boat).
What makes this OK? Well, it doesn't target many people, it's expensive to hold them this way because of all the treatment (so that will discourage abuse), and so on. But what judge (or panel of justices) would want to order this guy's release?
The KS SC actually invalidated the act, but they maybe knew for certain that it would be appealed to the feds.
Psychiatrists aren't very interested in pedophilia: why call it an illness if you can't treat it? KS wants to give treatment, but their main concern is the future potential victims. And if we devote state psychiatric funds to this patient (who can't be cured), we're depriving others (for whom it might have done some good) of that benefit. Nationwide, these statutes are costing about $450M/year, and not a lot of obvious return on that investment.
Obviously, the court is worried about the preventive detention problem, and it's not clear that its solution is perfect. There's a case this term on the subject, but it seems unlikely that Hendricks will be overruled.
Eastern had the potential to be another biggie. Congress declines to raise taxes to cover the healthcare promises, and won't shift money around either. But we can't leave these folks hanging like that. Since we're not going to pay for this, we need to find some other lucky party.
Eastern enterprises challenges this shifting of moey.
5 members say congress has gone too far with this move: it is the utter abnegation of any kind of due process and liberty of congress. All members object to the retroactive allocation of liability, but only 5 say it's unconstitutional, but they can't agree on how to call it unconstitutional.
So, on the one hand, it violates the takings clause. The problem with that logic is that takings analysis has always been about real estate and property before. After all, taxes are kind of a taking: if this is really a taking, then we open up all kinds of slippery slopes. Still 4 members say it's a taking: bring on the debate. Three of those four say only that it's a taking. Thomas, though, says that whatever we call it, if it's unconstitutional we can find all kinds of clauses that it violates-- the main thing is the retroactivity.
Retroactive penalties are devastating to investors: they've put up their funds, and when they turn a profit the government just takes it away. So Thomas is forthright: this is ex post facto, so let's just call it that. Unfortunately, 200 years ago, SCOTUS said that ex post facto concerns were only related to criminal cases. And we didn't call Hendricks criminal. Thomas, though, makes a frontal assault: let's overturn Calder v. Bull-- that was dumb. That kind of move, however, is too upsetting to the law. But of course, if it's a taking, that might upset a lot too.
So that's 4 of the majority. Kennedy is the fifth. But he can't bring himself to say it's a taking. Or ex post facto. He does say it's unconstitutional (so that's a majority), but he uses an ostensibly more benign way to get there: a violation of due process. However, since Lochner there has been no economic due process. So that can of worms is maybe open again. But Lochner was due process liberty of contract, and Kennedy says that was what we wouldn't tangle with anymore. This is "due process property," not liberty or contract. OK, so we dodge the Lochner bullet, but this too opens up a whole new vista.
So it's a mess, and everybody is playing fast and loose with precedent and terminology. Still, for Kennedy to have gone along with the taking's analysis, he'd have to go against his own concurrences in Nolen and Dolen. And likewise Scalia and Thomas can't go along with a substantive due process vehicle, because of what they've said in abortion/privacy cases.
So nobody is willing to be embarrassed, and the result is that the opinion is just unreadable.
Meanwhile the four dissenters do go so far as to agree that there is a constitutional limit here, and they agree that the test is substantive due process. It's just that this isn't beyond the pale of what's allowed: after all, if Eastern doesn't pay, who does? That means: everything is constitutional, if the circumstances demand. This is the same dissenting group as in Lopez, and this is pretty much what they said then.
All the same, this is the case the re-introduced some sort of due process right to economic liberty back to the constitution. Unfortunately, since nobody can read the case, no lower courts have really tried to use or explicate what it means.
What does "super" in "superfund" mean? It means we're not going to fund it. Congress lately doesn't put much in there, and relies on private companies to fund cleanups. Lots of people find the joint and several liability for cleanups to be much like Eastern, but that logic doesn't seem to get taken up by the courts, in spite of the statement that there is an economic dimension to the constitution.
This is the mirror image of Craigmiles v. Giles: funeral director licensing required to sell caskets.
The state is basically granting monopoly protection to funeral directors, and the markups on caskets are extreme. In Craigmiles, that was rejected. The Powers court just dismisses that: in 1937 these rights died.
Of course, if 2 circuits disagree, it seems ripe to grant cert. But that has not happened: perhaps the court doesn't want to come near economic due process again.
On the regulatory side, you can argue separation of powers. The legislature makes the rule. Courts should not have the power to decide what this issue should be (judicial review). About 65 years of precedent, too. Substantively, if we allow this liberty, you're allowing a free market, which will lead to equality problems: increasing disparity of wealth. So if egalite is a major policy (and it is), we shouldn't sacrifice it for a little liberty of contract. And generally, regulation is an OK thing, and courts should keep their hands off of it: opening the door of economic due process means we'll quickly be back to 1936, which means 1937 is coming right after, and that was no good. Also, there'll be a flood of litigation, because all sorts of people will find regulations they think interfere with their liberty.
On the plaintiff's side, there's liberty: that's enshrined in the constitution. These regulations frustrate our freedom to pursue the profession of our choice. Plus, free markets generate high standards of living: happy people, working hard, doing what they want to do... it has made trillions of dollars over the years. And separation of powers here, too: state control, vindicated by the courts, of people means state monopoly of power, and that's tyrrany. Decisionmaking by regulation is inefficient and frustrating. Judicial review is good here: courts need to intervene in cases where minorities are oppressed, and it's the court's obligation to counter tyrrany.
Anyway, Powers is like about 99% of the cases concerning this issue: there's no problem with this regulation.
About 20% of occupations require some kind of license.
The dissent's point about ducking federal review is really interesting. If WI can keep this issue in house, though, nobody else will trifle with it. Still, we've got a powerful court here, a willful court.
Still, what have we got here, in terms of WI constitutional problems? The right to a remedy, for one. And the right to a jury trial (if that right doesn't include the right to whatever award the jury decides, it's empty). And equal protection: we are born equally free, etc.
The court announces a new standard: rational basis with bite. Basically that means that the equal protection clause basically means that legislatures do not control policy in this area. It's not enough merely to have a rational basis: the court is free to disagree.
Note that the court totally ignores the fact that Ferdon will be earning interest on this money-- the court just fudges this-- because he gets paid the whole sum up front.
What about the theory that young people suffer more? We issue a life sentence for young murderers the same as old... why do we think it's OK for young killers to get this disproportionately heavy sentence? Again this is sort of a weakling argument from the court.
The court asserts that caps have no effect, that's maybe like rational basis, because who would pass a statute that has no effect. If it's a 2% effect, though, and the total is $2T, that's $40B! So even this small effect might be quite large.
Dissent: the court is not a super-legislature! (Separation of Powers, Judicial Review).
Also, sort of a battle of the studies about malpractice costs and defensive medicine. This is not law any more-- it's just replicating the debate that we had in the political process.
And courts that go with this bitey kind of rational basis just anger the legislature and attract political attention to themselves.
Note that lawyers have mixed feelings about malpractice caps. On the one hand, we allege that lawsuits aren't raising the cost of medicine much, and people need their remedies. On the other hand, we too can be sued for malpractice.
What does this case say about an economic dimenstion to the WI constitution? Is the right to non-economic damages actually an economic right? Maybe there's an economic dimension here against free contract (else doctors would require a covenant not to sue, or to limit liability). The court here, maybe, is protecting the tort system with constitutional coverage.
Note that by the court's logic, a higher cap is even more unconstitutional, because it affects fewer people (and therefore has even less of a rational basis).