When I first read the court of appeals decision in Sabri (while looking for
an exam question last semester), I was struck by the potential
expansiveness of its reasoning. The court emphatically rejects treating
section 666 as a conditional spending statute -- and doesn't make Eric
Muller's move of treating the case as a commerce clause case -- but
instead broadly concludes that the statute is a "legitimate exercise of
Congress's undisputed power to make a law that is necessary and proper for
the carrying out of its enumerated power to provide for the general welfare
of the United States." That is, since Congress has the power to spend
money for the general welfare, it can "police the integrity of" those who
receive the money and punish those who attempt to corrupt them by offering
them bribes -- even if the action that the briber sought has nothing to do
with the federal funds. The court notes that "money is fungible" and that
"maladministration of funds in one part of an agency can affect the
allocation of funds, whether federal or local in origin, throughout an
entire agency."
Under that reasoning, it would seem that Congress would have the power to
criminalize not simply the offering of a bribe to a recipient of federal
funds, but (say) theft from the recipient of federal funds. Doesn't theft
of funds "affect the allocation of funds, whether federal or local in
origin"? And if Congress can criminalize theft from the recipient of
federal funds, it would seem to open up precisely the limitless police
power that judicially-enforced federalism seeks to avoid. How about
theft from students receiving student loans, theft from parents receiving
food stamps for their children, theft from the recipients of a tax rebate?
theft from the recipients of federal reserve notes?? And how about federal
statutes to "police the integrity" of students receiving student loans,
parents receiving food stamps, tax payers receiving rebates, or even anyone
receiving federal reserve notes?
Ed Hartnett
Seton Hall
Eugene Volokh
<[EMAIL PROTECTED] To: [EMAIL PROTECTED]
LA.EDU> cc:
Sent by: Discussion Subject: FW from Eric Muller: RE:
Puzzling cert grant
list for con law
professors
<[EMAIL PROTECTED]
v.ucla.edu>
10/15/03 04:24 PM
Please respond to
Discussion list for
con law professors
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.
>
>
