Sabri v. United States - draft article

This is a draft of an article I am writing. I hope to peddle it to the Champion. Anyhow, it is a work in progress, since I will need the Court's opinion to finish it. If you have any comments, please e-mail them to me.

INTRODUCTION

March, which is tornado season, is said to come "in like a lion, out like a lamb." Expect March to bring a little madness from the Supreme Court. Sabri v. United States (No. 03-44), set for argument on March 4th, has come in like a lamb, but will likely come out like a lion.

Sabri asks, among other questions, whether Congress exceeded its enumerated powers when it enacted the federal program bribery statute, 18 U.S.C. §666(a)(2). The federal program bribery statute makes is a federal offense to offer a bribe of $5,000 to any person whose organization receives over $10,000 a year in federal funds.

The Minnesota District Court rejected the government's argument that Congress had power under the Spending Clause to criminalize these bribes. The Eight Circuit agreed with the District Court but nonetheless upheld the law as valid under the Necessary and Proper Clause. Namely, under the rational basis test, Congress could have concluded that it was necessary and proper to enact the bribery statute in order to protect the money, or to ensure that the money appeared to be untainted.

BACKGROUND

Basim Omar Sabri is a property developer in Minneapolis, Minnesota. Sabri was undertaking a huge property development that would require both extensive regulatory approval and the current property owner's pre-existing structures to be condemned. Allegedly, Sabri enlisted the illicit help of a city councilman and chair of the land use arm of Minneapolis, Brian Herron, to help him achieve these ends.

The Unite States alleges that Sabri offered three separate bribes to a Herron: (1) $5,000 to threaten current property owner's with eminent domain if they would not sell their property to Sabri; (2) $10,000 if Herron would convince the city council to approve Sabri's project; and (3) $80,000 as a 10% kickback to Herron for obtaining $800,000 in grants to Sabri.

The United States thus charged Sabri with three counts of violating the federal program bribery statute, 18 U.S.C. §666(a)(2), which criminalizes bribes of $5,000 or more made to any organization that receives more than $10,000 a year in federal funding. Since Minneapolis receives approximately $28.8mm a year in federal funding, and since the bribes were all $5,000 or more, Sabri found himself under federal jurisdiction.

Sabri's council immediately challenged the facial constitutionality of the federal program bribery statute. They argued, among other things, that the statue did not require the government to prove a nexus between the alleged bribe and the federal funds. Since no showing of a federal interest was required, the law was unconstitutional, since Congress does not have the power to reach bribes that involve truly local dealings. Indeed, the law of property and whether or not Sabir would obtain local regulatory approval, of which Counts 1 & 2 are predicated upon, are truly local matters.

WHERE IS THE FEDERAL INTEREST?

The Constitution created a federal government of enumerated powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961). Lacking among these enumerated powers is the so-called police power, although the Constitution does confer some textual power upon the national government in the criminal arena.

Article I, §8, Cl. 6 gives Congress the power to punish counterfeiting U.S. currency. Article I, §8, Cl. 10 provides that Congress may punish piracies and other felonies committed on the high seas. Finally, Article III, §3, Cl. 2 allows Congress to punish treason. In each of these areas, there is a substantial national interest. Indeed, states attempting to legislate in those areas will find their laws preempted.

Congress also has power to criminalize conduct that substantial affects interstate commerce. United States v. Lopez, 514 U.S. 549 (1995). However, the activity must not merely have a substantial effect on interstate commerce: the conduct must fairly be described national, and not merely local. Thus, mere possession of a firearm is not a national matter even though the illegal use of firearms may result in significant harm to the national economy. Lopez, 514 U.S. 549. Sexual assault is also not a national issue, even though gender motivated violence, in the aggregate, has a national affect. United States v. Morrison, 529 U.S. 598 (2000).

"OUR FEDERALISM" AS A METHOD OF CONSTITUTIONAL INTERPRETATION

It used to be that if Congress had an enumerated power to enact some piece of legislation, then it had the power under the Supremacy Clause to preempt any state action in that area. In order words, Congress either had the power to enact a law, or it did not. However, the modern federalism cases seem to require the Court to, as part of the initial inquiry into the scope of an enumerated power, consider the federalism implications of a broad conferral of power.
In Jones v. United States, the Supreme Court refused to interpret the federal arson statute to extend to the burning of property not involved in interstate commerce. Had the Court interpreted the federal arson statue to cover the burnings of private property not involved in interstate commerce, it would have cast serious doubts on the constitutionality of the statute. This was so even though the home Jones allegedly burned down was worth $87,500, and even though Congress alleged it had Commerce power to criminalize the arson.

In United States v. Lopez, 514 U.S. 549 (1995), the Court struck down the Guns Free School Zone Act, 18 U.S.C. 922(g)(1)(A), as exceeding Congress’ commerce power because if Congress could punish the mere possession of a firearm within 1,000 feet of a school zone, then it would also necessarily follow that Congress could regulate all garden variety crimes, family law, and education. In United States v. Morrison, 120 S.Ct. 1740 (2000) the Court struck down the Violence Against Women Act, 42 U.S.C. 13981, because if Congress had the power to provide a federal private right of action for domestic abuse (a very serious but also very local problem), then it would necessarily follow that there would be no limits on Congressional power. Finally, in Jones v. United States, 120 S.Ct. 1904 (2000) the Court construed the federal arson statute, 18 U.S.C. 844(i), narrowly since it would have had substantial constitutional defects if it extended to the burning of a home that involved in interstate commerce, even though the value of the home was not insubstantial. Collectively, these cases stand for the proposition that under the Constitution, the long arm of Washington can not extend to activities truly local in nature and matters of traditional state concern. Applying a similar analysis, we must ask if Congress has the power to enact Section 666, does it not also have the power to reach all other truly local affairs? The answer to this question is, yes.

As a matter of constitutional interpretation, a limited reading of Congressional power is required lest the Court “obliterate the distinction of what is national and what is local…” Jones & Laughlin Steel, 301 U.S. 1, 37 (1937) (Cardozo, J., concurring). “[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” United States v. Morrison, 529 U.S. 598 (2000) “[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). Concerns for the proper scope of the national government - present during the founding of this great country, present during the days of the great Cardozo, and present today - should have guided the majority’s reading of the Spending Clause.

THE SPENDING CLAUSE

The Spending Clause provides that Congress shall have the “Power To … provide for the … general Welfare.” Art. I, § 8, Cl. 1. In other words, Congress has the power (unremarkable, really) to spend money. This power to spend also “is not limited by the direct grants of legislative power found in the Constitution.” United States v. Butler, 297 U.S. 1, 66 (1936). In other words, Congress may spend money on matters not specifically described in the Constitution.

Congress also has broad power under the Spending Clause to do "indirectly what is may not do directly." Congress may do so by conditioning a State's receipt of federal funds on accepting certain terms attached to that money. And so, in South Dakota v. Dole, Congress was able to persuade, ala the power of the purse, all 50 states to raise their respective drinking ages to 21.