Sabri v. United States

The oral argument transcript for Sabri v. United States (No. 03-44) is available here.

Although the case was briefed on Spending Clause and Necessary and Proper Clause grounds, Court watchers and Constitutional Law scholars kept asking "What's the big deal? Isn't the federal program bribery statute constitutional on commerce clause grounds?" See this exchange, for example. However, the advocate for Sabri was totally unprepared to discuss this issue. See the below exchange from the oral argument transcript.

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QUESTION: Why -- why can't it be constitutional under the Commerce Clause? I know the Government doesn't rely on that, but respondent can be supported here on any -- any ground. Why -- why isn't this a commercial transaction as -- as, you know, our -- our Commerce Clause law is? So long as the transaction is commercial, we will assume it's interstate commerce. We'll accept Congress'
judgment on that. Why isn't a commercial transaction when you bribe somebody? Money for -- for whatever the favor he does.

ANSWER: A couple things, Your Honor.
First of all, there is not a requirement that interstate
commerce nexus be proved in the statute.

QUESTION: That's not necessary. So long as
it's commercial, our cases -- our recent cases, say so
long as it's commercial, we'll accept Congress' judgment
that it's interstate.

ANSWER: Well, if Congress could create
commerce -- Commerce Clause jurisdiction everywhere that
it could spend money, then --

QUESTION: No, no, not everywhere it could spend
money. Everywhere there is a commercial transaction. One
of our cases, for example, held that loan-sharking could
be covered under the Commerce Clause because it was a
commercial transaction, just as illegal as -- as the --
the bribery here, but if that could be covered by the
Commerce Clause, why can't this?

ANSWER: Because without -- without a
showing that in each case there was a connection between
interstate commerce and the transaction --

QUESTION: That's not what our cases require.
QUESTION: Is that true of the drug statutes
too?

ANSWER: I'm sorry, Your Honor?

QUESTION: I mean, is it true whenever the Feds prosecute a person for a drug transaction, a jury has to
determine there was a connection between these drugs and interstate commerce?
I've never heard of that requirement that -- that the -- that the jury would have to determine whatever
facts are necessary for the statute to be constitutional even -- even though that's not an element of the offense. Does that come out of a case or someplace? Where does it come from?

ANSWER: Well, unless -- unless there was an understanding that in every instance there was an
effect on interstate commerce, then --

QUESTION: I mean, there might be instances where there's no effect on interstate commerce, a home --
you know, that -- that will be an issue, homegrown marijuana. So suppose there is some drug somewhere that has no effect. It just didn't. There could be such a thing. We can imagine it. But does that mean in all these other cases that Congress -- that the statute is void because the jury hasn't found -- I'd be repeating myself. You answer.

ANSWER: I -- I think that it is different because the Commerce Clause is -- is a regulatory power
that permits Congress to regulate. The Spending Clause power is -- is a different sort of power. It does not make that --
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Unfortunately for you and me (who are pseudo-clients when the most significant federalism case of the 21st Century is argued), the advocate was not well-briefed on the Commerce Clause, and the various approaches the Justices take.

This was a FEDERALISM case. It involved the proper distribution of power between the State and Federal governments. The power to criminalize conduct, part of the so-called "police power" was reserved to the States. Congress was not delegated a general police power in the Constitution. When Congress enacts federal criminal law, it is acting at the zenith of its power. When Congress enacts a federal criminal law that punishes state and local actors for their exchanges with private citizens, then Congress is exceeding its power under the Commerce Clause, since the Commerce Clause only gives Congress the power to regulate commerce "among the several States."

The Court has read the Commerce Clause to give Congress the power to regulate wholly instrate commerce, but then only if it substantially affects interstate commerce. To determine if an activity substantially affects interstate commerce, the Court has generally applied the "aggregate effects" test from Wickard v. Filburn. However, both Justice Scalia and Thomas have recently critized the aggragate effects test. Chief Justice Rehnquist, and Justices O'Connor and Kennedy would probably be receptive to narrowing the scope of the aggregate effects test, especially since the federal program bribery statute takes from the States the power to regulate the intrastate activities of its political subdivisions. Remeber that Rehnquist spoke in Garcia about the return of the Tenth Amendment.

The problem is that too many lawyers think that arguing before the Supreme Court is some sort of honor that they deserve after a long career. Also, every lawyer thinks she is good enough to argue before the Supreme Court, maybe because he did Moot Court in law school or is otherwise a self-styled brilliant speaker. I have listened to and read hundreds of hours of oral arguments transcripts at Oyez. Very few lawyers are qualified to aruge in this forum. It is for good reason that Ken Starr, Miguel Estrada, and Lawrence Tribe are - time after time - retained to argue before the Court.

A lawyer who argues before the Court unprepared breaches his ethical obligation to his client. He also dishnors all of us, since the Constitution belongs to you and me, the People. Machiavallei spoke of three levels of intelligence: 1. - those who create ideas; 2. - those who can understand and comprehend those ideas; 3. - those who can do neither. Most of us are "2's." Has society degenerated such that everyone thinks himself a "1"?