I appreciate Marty Lederman's detailed observations. And, I agree with him
that "[t]he fact that section 666 'says nothing' about commerce does not *determine*
whether it can be sustained as Commerce Clause legislation" (my emphasis). I
expect, though, that --Wickard, Perez, etc. notwithstanding -- this Court would
require, if not a jurisdictional element, some evidence that in fact Congress
enacted Section 666 as a commercial regulation.
I do not mean to be obstinate, but it still seems to me that the
conditional-spending cases do not apply very well here, and that Oklahoma v.
CSC is not to the contrary. After all, Section 666 does not regulate only the
activities of employees of funds-receiving entities, but also the corrupt
activities and attempts of all those who seek to bribe such employees.
Similarly, Marty's observations about title VI, title IX, the Rehab. Act, etc.
strike me as supporting the proposition that in the conditional-spending
context -- which the Court tends to analogize roughly to a contract-type
situation -- Congress may impose obligations on consenting funds recipients
that reach to the far ends of the recipients' institutional structures. But
these statutes and programs do not, so far as I know, reach as far as Section
666 purports to do.
As I understood Professor Muller's opening observation, the question was
whether Sabri presented an interesting or cert-worthy question. The premise of the
opinion below, and of Section 666, is that, merely by spending money, Congress
acquires an interest sufficient under the Sweeping Clause to authorize
criminalizing the corrupt conduct of any person dealing with any agent of any
branch or department of a funds-receiving organization. Whether or not the
Commerce Clause permits Congress to federalize all or most bribery, the
question whether this premise is consistent with the idea of limited and
enumerated powers is, I think, and as Professors Bezanson and Hartnett have suggested, worth this Court's attention.
best wishes,
Rick Garnett
Notre Dame Law School
(London)
At 06:33 AM 10/16/03 -0400, you wrote:
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
Notre Dame Law School
Notre Dame, IN 46556
(574) 631-6981
[EMAIL PROTECTED]
http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html
