We discussed The Uniques on Monday, giving a sort of introduction to the authors, the estimable Comfort Love and Adam Withers, and the story itself. Very briefly, Comfort and Adam are awesome, and The Uniques is an unfolding story, still in its early stages, about a world where superheroes aren’t just a sort of bonus pack to reality that somehow doesn’t affect anything, but a vital, hugely important part of modern history. Which might be the most ambitious and fun thing that we’ve seen anyone try to do. So you should read it.
This week, we’re going to start looking at the way The Uniques deals with law and the legal system. And where better to start than with what has been the single most debated issue in any superhero setting: registration.
I. Registration in The Uniques
The Uniques is only nine issues in, so we’re still learning how this world works. But from what we can tell so far, uniques are required to register if they want to engage in superheroics in public. It’s not entirely clear whether this extends to any and all use of super powers, or just crime-fighting or rescue activities, but the way things are written it seems more like the latter. The core team of characters has had a few incidents with the Special Enforcement Corps (unfortunately abbreviated “SEC,” which to the legal eye suggests a significantly more boring real agency), and they’re becoming increasingly insistent that if the team wants to continue to operate that they need to register. It’s also unclear whether the SEC is with the state government or the federal government, but it seems to be the latter. There’s also mention of some kind of stipend for registered heroes, though again, we don’t know much about how that works.
II. Real Law
A. Registration and Due Process
So far, most of this actually looks pretty plausible. If superpowered individuals suddenly appeared on the world stage, regional and national governments would take about fifteen minutes before passing some kind of law about them, and sixty years is enough time for the administrative apparatus surrounding uniques to reach something like maturity. Some kind of registration scheme seems almost a foregone conclusion, but the authors, intentionally or not, seem to have avoided one of the biggest potential problems with registration acts generally. Because they’ve tied the need for registration to particular activities rather than simply having super powers, they avoid some pretty significant constitutional problems. For example, the main character is part of a family of uniques. Her parents were registered and part of a publicly-known team. But her younger sister doesn’t seem to be. She’s got a super power—think Mystique but normal-looking—but she doesn’t use it for crime-fighting or public safety purposes. No, she’s a body-double and stuntwoman in Hollywood films. The government doesn’t seem to notice or care, at least not so far.
This is important, because the Supreme Court has previously expressed skepticism about the regulation of physical conditions. For instance, in the 1960s, Los Angeles made it a misdemeanor to be addicted to narcotics. In Robinson v. California, 370 U.S. 660 (1962), the Supreme Court held that punishing someone for an involuntary physical condition violated the Eighth Amendment. The core holding is that in order to be charged with a criminal act, there must be some act. But the Supreme Court held just a few years later in Powell v. Texas, 392 U.S. 514 (1969) that there’s a difference between public behavior and physical conditions, when it upheld a law prohibiting public intoxication. So while the state can’t make it illegal to be drunk, they can make it illegal to be drunk in public.
Those cases were about criminal law, but the same distinction could easily be applied in a due process/equal protection context when we think about registering powers. One can certainly make an argument that certain powers are just so dangerous that the government has an interest in regulating them. But the idea that the government can regulate people who choose to use their powers in public is much, much easier sell, and doesn’t require one to even make that argument, particularly if those uses are confined to areas of traditional government activity like law enforcement or public safety. This also sidesteps a lot of secondary problems like deciding what constitutes a “super power.” In a world with lots of “super powers,” the line between “uniques” and “typics” could easily become blurry, particularly when we consider gadget-based heroes like The Uniques’s Dreadnaught, Marvel’s Iron Man, or DC’s Batman. Requiring registration of powers as such would potentially require the government to engage in a case-by-case evaluation of everyone who might have a power. This would be an enormous pain. Linking registration to activity is just a smart way of doing things.
B. Registration and Federalism
Further, it makes all kinds of sense that there would be some official government agency specifically tasked with dealing with super-powered individuals and super-powered crimes. This agency would be staffed by people with powers themselves, or at the very least access to all the coolest toys. Both seem to be true here. The implication is that this is a federal agency. We discussed registration acts and federalism both in reference to Watchmen’s Keene Act and the Superhuman Registration Act, and we concluded in both cases that a federal registration act would likely be a valid exercise of the Commerce Power. The question is why the federal government should be able to regulate uniques instead of state governments. States regulate physicians, lawyers, insurance companies, etc., so why shouldn’t they also regulate uniques? It’s not a bad question, and next month’s ruling in Florida v. HHS might cause us to re-evaluate our analysis. But for now, the law seems to support such a regime. This seems particularly true in The Uniques, as uniques are finally shown to have the significant impact upon national security and foreign policy that they would obviously have if they existed. Uniques seem to be involved in national security, military activities, and diplomacy, in addition to more traditional law enforcement activities. As such, it would stand to reason that Congress could invoke a variety of powers in addition to the Commerce Power in regulating uniques and their activities. While foreign policy may be shared between Congress and the President, it is an entirely federal power.
It’s still pretty early in the series, but so far, The Uniques has one of the most functional and sensible registration regimes that we’ve seen. Unlike Marvel’s Civil War, registration is a normal and expected part of life, and seems to be implemented more reasonably than the SHRA seems to have been. Specifically, the registration requirement seems to be linked to using one’s powers in public, and possibly even using them in certain ways like crime-fighting or public safety. Unlike in Watchmen, “costumed adventuring” isn’t effectively banned, just regulated. We’ll take a look at some of the other issues presented by the series in future posts.