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This sounds distubingly like a strong Hamilton
interpretation.
Jeff Renz
----- Original Message -----
Sent: Wednesday, October 15, 2003 3:02
PM
Subject: Re: FW from Eric Muller: RE:
Puzzling cert grant
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.
>
>
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