[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in two cases. In United States v. Comstock [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether Congress had the authority to enact certain provisions of the Adam Walsh Child Protection and Safety Act [18 USC § 4248 text], which allow a person deemed "sexually dangerous" to be civilly committed after the expiration of a federal criminal sentence. The US Court of Appeals for the Fourth Circuit found [opinion, PDF; JURIST report] that the law was beyond Congress' authority under the Commerce Clause [Cornell LII backgrounder]. US Solicitor General Elena Kagan [official profile] defended the law, arguing:
What Congress said here was something pretty simple and very reasonable. It said if we, the Federal Government, have somebody in our custody, and we know that that person has the kind of mental illness that is going to cause grave danger to the community; and we know that there is no one else who is in a good position to prevent it; and we know that we were in part responsible for that vacuum, then we should be able to do something about it. That's what section 4248 says, and section 4248 is constitutional for that reason.Some of the justices seemed skeptical of Kagan's position, with Justice Antonin Scalia calling the law "a recipe for the federal government taking over everything." Counsel for the respondents distinguished sex offenders from people found not guilty by reason of insanity. Last week, a three-judge panel from the US Court of Appeals for the First Circuit upheld [JURIST report] the law, finding that civil commitments were within the power granted to Congress under the Constitution's Necessary and Proper Clause as an extension of the government's custodial responsibility for federal inmates.
In Abbott v. Abbott [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether a ne exeat clause, which prohibits one parent from removing a child from the country without the other parent's consent, confers a "right of custody" within the meaning of the Hague Convention on International Child Abduction [text]. The Hague Convention requires a country to return a child who has been "wrongfully removed" from his country of habitual residence. Under Art. 12, a "wrongful removal" is one that occurs "in breach of rights of custody." The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that ne exeat rights do not constitute "rights of custody" within the meaning of the Hague Convention. Counsel for the petitioner argued:
The Hague Convention exists to ensure that custody disputes are resolved by the courts of the country of habitual residence rather than through abduction. It thus generally requires the return of a child who is abducted in violation of a right of custody. So too, a ne exeat right permits a parent to require that the child reside in the country of habitual residence, thereby rendering international abduction illegal.Counsel for the respondent distinguished rights of custody from rights of access.
Ne exeat rights are not only rights of custody under the text of the convention, but they also track the convention's vital purpose of ensuring that children are not subject to international abduction.