Regarding the Sabri grant, and Eric Muller's question (disclosure: I helped write an amicus brief for the NACDL supporting cert):
There is a clear and (I think) "cert-worthy" circuit split over the question whether the statute (Section 666) requires the government to establish a "nexus" between the alleged bribe and the federal-program funds used to meet the $10,000 limit. Some courts have said neither the statute nor the Constitution requires such a connection; others have said that the statute should be read to require one, to avoid possible federalism problems (recall Jones, the arson case from a few years ago). A few judges (Judge Bye, dissenting in Sabri), though, have insisted that Section 666 lacks a constitutional basis, because neither the Court's conditional-spending cases, nor its necessary-and-proper doctrines, authorize federal prosecutions simply because the corrupt conduct involves someone affiliated with an organization that receives federal funds. (As Eric points out, Congress could, under current law, federalize a great deal of "local" bribery using a different "hook" -- e.g., the Commerce Clause -- but it pretty clearly did not do so here, either under Lopez or even Perez). In fact, Judge Hansen below specifically rejected the argument (which some courts had accepted) that Section 666 prosecutions were like a Dole-type spending condition. He went on to conclude that the Sweeping Clause provided an appropriate textual basis for the law and its application.
For what it's worth, I argue for a position much like Judge Bye's in an article forthcoming in the Cornell Law Review. The paper and abstract are available on the SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=428903
In my view, David Engdahl put it well, about ten years ago: "The Constitution does not contemplate that federal regulatory power should tag along after federal money like a hungry dog." Still, as many on this list have observed, the Court has not shown much enthusiasm for importing its "New Federalism" themes into the Spending Power context.
best,
Rick G.
At 04:24 PM 10/15/03 -0400, you wrote:
Eric Muller posed this question on his blog (http://www.isthatlegal.org); I wonder what people think about it.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]
> Sent: Wednesday, October 15, 2003 3:32 PM
> To: [EMAIL PROTECTED]; [EMAIL PROTECTED]
> Subject: Puzzling cert grant
>
>
> I am at a loss to understand the Sabri case, on which the Court yesterday
> granted cert.
> --Eric
>
>
> http://www.isthatlegal.org/archives/2003_10_12_isthatlegal_archive.html#1066
> 24604536734652
>
> The Supreme Court yesterday granted certiorari in a case out of the Eighth
> Circuit involving a federal bribery statute. The law in question makes it
> illegal for a state employee of an agency that gets more than $10,000 in
> federal funding to accept a bribe in an amount greater than $5,000.
>
> The case is apparently getting litigated as a Spending Clause issue, so
> the issue before the Court is whether the law exceeds the Congress's
> Spending Clause powers in that it doesn't require that the $5,000 bribe
> relate in any way to the $10,000 in federal funding.
>
> I am at a loss. Congress would unquestionably have the power, under the
> Commerce Clause, to make it illegal to pay a money bribe in an amount
> greater than $5,000 to anyone. That would just be a prohibition of a money
> transaction--something that would be OK even under the new rules of the
> federalism game that the Court has been giving us. (Think of it this way:
> wouldn't Congress have the power to pass a law that made it illegal to sell
> more than $5,000 worth of cocaine? More than $5,000 worth of tobacco? I'm
> not asking whether it would be wise for Congress to pass such a law--just
> whether it would have the power to do so.)
>
> So if it has that power, then why should we care that it has chosen to
> restrict the scope of the statute to situations where the victim agency
> receives more than $10,000 in federal funding?
>
> The buzz is (scroll down to Greenhouse's description of this case) that
> this might be the case where the federalism revolution reaches the Spending
> Clause. But I don't see how, or why.
>
>
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