One reason why section 666 may look more "like a general police power"
statute rather than a conditional spending statute is that it does not
simply regulate the activities of the recipient of federal funds, or the
employees or agents of that recipient.
Subsection (a)(2), which is the provision involved in Sabri, criminalizes
the behavior of outsiders in their dealings with the recipients of federal
funds. Even if the recipient of federal funds -- and its agents and
employees -- are models of integrity who flatly refuse a bribe offered by a
complete stranger, the person who offered the bribe has violated 666(a)(2).
I certainly don't have any sympathy for the person who offered the bribe,
and having grown up in Hudson County, New Jersey, am painfully aware of the
importance of federal prosecutions to combat local corruption. (Yet
another indictment was handed up yesterday.) But if all wrongdoing
_against_ recipients of federal funds -- as opposed to wrongdoing _by_ them
-- can be a federal crime, then the spending clause is rather close to a
police power, at least in a world of ubiquitous federal spending.
That doesn't answer the constitutional question. It may be that in the
constitutional world of massive federal spending made possible by the 16th
amendment, there are no judicially enforceable limits that can (or should)
prevent the spending power from effectively being a police power -- even
without the use of imposing conditions on the _recipients_ of federal
funds. But I took Eric Muller's original question to be why anyone would
think that Sabri might be an important spending clause case. For those who
believe that there must be judicially enforceable federalism limits on
national power, the court of appeals decision in Sabri might appear quite
threatening.
Ed Hartnett
Seton Hall
Marty Lederman
<[EMAIL PROTECTED] To: [EMAIL PROTECTED]
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Sent by: Discussion Subject: Sabri: Puzzling cert grant?
list for con law
professors
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10/16/03 06:33 AM
Please respond to
Discussion list for
con law professors
Just a few minor responses to Professor Garnett's several important
points:
1. The fact that section 666 "says nothing" about commerce does not
determine whether it can be sustained as Commerce Clause legislation. See
my previous post, and those of Professors Bagenstos and Froomkin.
2. It's true that section 666 "does not require prosecutors to prove
anything about commerce, instrumentalities, or effects," and therefore,
unlike, say, the Hobbs Act, it is not obvious that a prosecution under
that statute could be sustained on the basis of proof of a "jurisdictional
element." But cf. Salinas v. U.S., 522 U.S. 52, 60-61 (1997) (upholding
conviction under section 666 against an as-applied constitutional
challenge because of the Supreme Court's own conclusion -- unsupported by
any jury finding (because there was no statutory basis for asking the jury
the question) -- that "[t]he preferential treatment accorded to [the
briber] was a threat to the integrity and proper operation of the federal
program").
Professor Muller's original point, however, was that because this is an
anti-bribery statute, it is necessarily the case that in every
prosecution, the government must prove an actual or attempted money
transaction. Accordingly, isn't section 666, like the prohibition on
intrastate extortionate credit transactions upheld in Perez, an "example[]
of the exercise of federal power where commercial transactions were the
subject of regulation . . . within the fair ambit of the Court's practical
conception of commercial regulation and . . . not called in question by [
Lopez]"? Lopez, 514 U.S. at 573-74 (AMK and SOC, concurring (citing,
inter alia, Perez)). In cases such as Perez and Wickard, involving
regulation of concededly economic activity, proof of a jurisdictional
"interstate commerce" element ordinarily is not necessary.
3. Even if section 666 could be sustained under the Commerce Clause, I do
not recall the Department of Justice ever invoking the Commerce power in
support of its constitutionality (although I have not, of course, read
every brief it's ever filed on 666), and therefore I would not be
surprised if the SG does not do so in Sabri, either.
4. Professor Garnett writes: "Nor is it a conditional-spending statute
that can be evaluated under the Dole, Pennhurst, etc. (That is, Section
666 has nothing to do with enforcing obligations against those who receive
federal-program funds with notice of those obligations)." In some sense,
this is correct, in that the specific prohibition applies against the city
agency's employees, rather than against the city (the funding recipient)
itself. But in this respect, the statute is analogous to the Hatch Act
provision, upheld in Oklahoma v. CSC, restricting the political activities
of certain state employees. The Court in Dole did not suggest that such
"employee specific" Spending provisions are to be treated under a different
constitutional test. See 483 U.S. at 207, 210 (discussing Oklahoma v.
CSC). In both types of cases (i.e., Dole on the one hand; Oklahoma and
Sabri on the other), the recipient government or agency has the power to
eliminate the condition by refusing to accept the funds, and presumably
has the power (at least in theory) to see that the condition is enforced,
by policing the official capacity activities of its employees. This
doesn't mean, of course, that section 666 passes muster under Dole and
Oklahoma; but I'm unclear as to why it can't be "evaluated under" such
precedents, or why it "looks . . . like a general police power" statute.
5. Professor Garnett writes that "[i]f, for example, the City of
Springfield receives a gang-intervention grant from the DOJ, all bribes
(of more than $5,000) involving the City of Springfield -- not just bribes
involving or touching upon that grant -- become federal crimes." Although
it does not answer the constitutional question, it is worth noting that
this is hardly the only federal statute that does not require
demonstration of any direct "involving or touching upon" nexus between the
money and the condition. For example, the post-Grove City amendments to
title VI, title IX, and the Rehab Act, as well as RLUIPA, all impose their
antidiscrimination requirements to all of the operations of a department,
agency, special purpose district, or other instrumentality of a State or
of a local government, or of a college, university, or other postsecondary
institution, or of a public system of higher education or a local
educational agency system of vocational education, or other school system,
if such entity receives any federal financial assistance. (For one brief
explanation about why such a nexus is constitutional, see pages 11-19 of
http://www.usdoj.gov/osg/briefs/2000/0responses/2000-1488.resp.pdf.)
----- Original Message -----
From: Rick Garnett
To: [EMAIL PROTECTED]
Sent: Thursday, October 16, 2003 3:54 AM
Subject: Re: FW from Eric Muller: RE: Puzzling cert grant
Dear all,
It is true that -- under current doctrine -- a Commerce Clause statute
could be drafted that would apply to much of the corrupt conduct currently
targeted by Section 666. But I don't see how this fact saves Section 666,
which is not a Commerce Clause statute, and could not be judicially read
or re-written as one. This law says nothing -- and does not require
prosecutors to prove anything -- about commerce, instrumentalities, or
effects. Nor is it a conditional-spending statute that can be evaluated
under the Dole, Pennhurst, etc. (That is, Section 666 has nothing to do
with enforcing obligations against those who receive federal-program funds
with notice of those obligations).
Section 666 federalizes bribery when the bribe involves someone affiliated
with an organization that receives federal-program money. If, for
example, the City of Springfield receives a gang-intervention grant from
the DOJ, all bribes (of more than $5,000) involving the City of
Springfield -- not just bribes involving or touching upon that grant --
become federal crimes. The statute's premise appears to be that the
(effectively unlimited) power to spend in pursuit of the General Welfare,
combined with the Necessary and Proper Clause, creates what looks to me
like a general police power. This is, in my view, a striking claim, and
one that the Court should confront. Put differently, I think the concerns
about the statute go well beyond worries that Congress should have said
more clearly what it was doing.
best,
Rick Garnett
Notre Dame Law School
(London)
At 10:47 PM 10/15/03 -0400, you wrote:
At 09:29 PM 10/15/2003 -0500, you wrote:
If I were going to argue that they should (which I haven't thought much
about), I'd start by pointing out that we haven't done a very good job of
coming up with other, substantive limits on the spending power, so
imposing a procedural hurdle in the form of a clear invocation
requirement would cut back on the extent to which that power can undercut
limits on the other powers, like commerce.
Ernie Young
Don't we already have all the clear invocation requirement we need in the
Spending Clause context in the Pennhurst clear statement rule, in all of
its permutations?
And anyway, what seems to be interesting here is that there's no concern
that Congress is using its spending power to get around limitations on
other powers -- here the commerce power justification might well be
stronger than the spending power justification. So even one who agrees
that there should be a clear-invocation requirement for open-ended powers
that allow Congress to circumvent limitations on other powers (like the
spending power and maybe Section 5) would need some other argument to
justify a clear-invocation requirement for a "less powerful" power like
the
commerce power.
Richard W. Garnett
Notre Dame Law School
Notre Dame, IN 46556
(574) 631-6981
[EMAIL PROTECTED]
http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html
