Re: FW from Eric Muller: RE: Puzzling cert grant

[Randall Bezanson]

        I would highly recommend reading the 8th Circuit's opinion.  In brief, the court holds that (i) the statute is an exercise of the spending power; (2) but that it is not a "conditions" statute [i.e. placing a condition on spending federal funds, where a nexus argument night well be made]; yet (3) it is nevertheless constitutional as an exercise of Congress'  power to enact direct laws under the authority of the spending power and to use any means necessary to the proper end (necessary and proper power a'la McCulloch), including laws governing the conduct of those who receive federal funds, but not requiring any nexus to the federal funds themselves (but, alternatively, to the practices and honesty of the recipients, one presumes).  This is a pretty interesting way of framing the question.

        As to Congress being able to enact the same statute under the Commerce Clause, the answer is likely:  perhaps so, but it doesn't matter, for Congress picked the Spending Power quite specifically, and having done so Congress is stuck with the enumerated power it selected.  It's not hard to think of good reasons why this should be so.

Randy Bezanson
University of Iowa

At 03:24 PM 10/15/2003, 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.
>
>