This is the Cato Daily Podcast for Friday, May 28, 2010.

I'm Caleb Brown.

Should the Department of Justice be able to declare an ex-con sexually dangerous and civilly commit them?

Does the necessary and proper clause... sexually dangerous and civilly commit them.

Does the necessary and proper clause provide Congress open-ended authority?

Those are a couple of the issues in the complicated Comstock case.

Roger Pillan, Vice President for Legal Affairs at the Cato Institute, says there is one important

substantive matter in the troubling case that no justice's opinion touched on.

This case involved a challenge to the Adam Walsh-Smith Protection Act of 2006, which authorized

the Department of Justice to civilly commit sexually dangerous people after they had

served their term and so it raises all kinds of questions of a rights nature

but those due process questions were not before the court.

There was only one question before the court in this case, and that's a question of where

does Congress get its authority under the Constitution to enact such a statute?

So it's that most basic of constitutional questions.

And Justice Breyer, writing for the majority, found the authority in the Necessary and Proper Clause.

The dissent by Justice Thomas, joined by Justice Scalia, found that argument utterly

wanting.

Walk us through the necessary and proper clause

generally and how it applies here.

The basic issue here concerns the fact that the Constitution is a Constitution of limited

powers. There are only 18 powers that Congress has. The last of those is the

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