A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.

Tuesday, January 20, 2004

There is no greater insult to a teacher than to forever remain a student.

People who devote their lives to Nietzche's work irritate me. Those people also irritate Zarathustra, who writes: "One requites a teacher badly if one remains merely a student."

If I remember correctly, the Kaufmann edition is slightly different, with Zarathustra saying, "There is no greater insult to a teacher than to forever remain a student."

Regardless of the preferred translation, the morale is clear.

Sabri v. United States.
Why has this case not received more ink? I did a Google search w/"Sabri v. United States" and received only 5 pages of hits, of which many were duplicative. This is a MAJOR case. Major if you consider United States v. Lopez and United States v. Morrison to be major cases.

Sabri asks, among other questions, whether congress has power under either the Spending or Sweeping Clauses to enact the federal program bribery statute, 18 U.S.C. s 666(a)(2)? [The other questions involve matters of statutory interpretation and the application of a facial challenge to criminal statutes]. In other words, did Congress exceed its enumerated powers by creating a law that criminalizes monetary exchanges not involving federal funds?

Sabri is a property developer who allegedly offered three bribes to a city councilman, Brian Herron: One each for $5,000; $10,000; and $80,000. Sabri allegedly said he would pay Herron $10,000 to threaten people who owned property that Sabri wanted with the city's power of eminent domain if those property owners would not sell to Sabri. The $5,000 was allegedly offered in exchange for Herron's ensuring that Sabri would obtain regulatory approval over a major development project. The $80,000 was allegedly offered as a 10% kickback to Herron if he would divert $800,000 of city money to Sabri's project. [Isn't is grand that city councilpersons may condemn your property notwithstanding the public use requirement of the Takings Clause?]

Anyhow, the government contends that because it provides Minneapolis with over $10,000 a year in federal funding (28.8mm precisely), it has the power to criminalize bribes aimed at municipalities with control over that money, even if the person making the bribe is not after the federal money. In support of this position, the government offers at least three arguments.

FIRST, because Congress SPENDS money, it may enact legislation pursuant to those expenditures. Applied here: Congress spent 28.8mm. Section 666 is a regulation enacted pursuant to this expenditure. Or, SECOND, Section 666 is attached as a condition to federal expenditures. To wit, even if Congress did not have an independent textual power to enact Section 666, it is allowed to attach conditions to federal funds, even if those conditions, if passed as separate legislation, would be unconstitutional. When Minneapolis accepted the federal money, it agreed that its citizens would be subjected to criminal liability for offering bribes. In other words, the citizens of Minnesota, by and through their duly elected representatives, accepted those conditions. Or, THIRD, under the Necessary and Proper Clause congress may enact any legislation that is rationally related to another textual power. The textual power here is the Spending Clause.

And the argument goes: Congress had the power to spend money (in the form of grants and other allocations) for local public works projects. Then, Congress rationally concluded that Section 666 was necessary and proper to protect the money from either being corrupted or from appearing that it could be corrupted. For some reason, the FBI is better and ferreting out corruption than local governments. Even if that is not true, Congress was at least rational to conclude This..

In opposition to this position rests common sense and an origional understanding of the Constitution.

Outside the legal arguments we see that the problem, of course, is how in the hell does Congress have the power to punish the $5,000 and $10,000 bribes that were allegedly offered to a local councilman as a quid pro quo for helping Sabri obtain development approval? If the government is correct, then Sabri offered Herron some money for favors regarding a local development project. What PROPER interest does congress have in such local dealings? These dealings, if true, are shady. But isn't that a problem for Minnesota? Why is the local politics of Minneapolis, Minnesota my business in Alabama, Arkansas, or New York? Why is such local conduct worthy of national attention?

There are also legal arguments against this power-grab by congress.

As a first principle, Congress is limited to enumerated powers. If there is no text in the Constitution granting Congress the power to enact a law, then congress may not enact such law. Nowhere in the Constitution is congress given a general police power - the power to define and punish crimes. Textually, congress may punish or define a couple of crimes, such a counterfeiting, treason, and felonies committed on the high seas. But that is the textual limit.

And although the supreme court has read into the Commerce Clause congressional power to punish crimes, those intances are limited to activities that substantially affect interstate commerce. Nowhere has the court read into the Spending Clause a similar power. Instead, a proper reading of the Spending Clause is that it confers upon congress the power to tax and spend. Nothing more. A criminal law is far removed from spending money, outside the salaries of federal enforcers, facilities, & etc.

The conditions doctrine must fail since Sabri was not in-privy to any alleged condition. Besides, congress can not violate principles of federalism in attaching conditions to money. Punishing local corruption, such as involved with the first two alleged bribes is solely a state matter. When congress seeks to put its nose in that tent, it violates principles of federalism, which allows congress only enumerated - and therefore limited - powers. And so, on federalism grounds, the conditions argument must fail.

Similarly, the necessary and proper argument fails because a law that violates principles of federalism is, by definition, not-proper.

The 8th Circuit Court of appeals opinion: here

The government's opposition to Sabri's petition for cert. is here

Sabri's brief on the merits is here

The CATO Institute's amicus brief is here
Illinois v. Lidster, some scary language

In Illinois v. Lidster, the U.S. Supreme Court held that a road-side traffic stop whose only purpose was a fishing expedition for law enforcement officials, did not violate the 4th Amendment.

The Court writes that a per se rule against information gathering checkpoints is not needed because law enforcement departments do not have the resources to monitor every intersection. (Slip Opinion at 6). In other words, a lack of money is all that protects the American citizen from tyranny.

So long to a Supreme Court that cares about individual rights.
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Via Drudge
"I'm starting to think that the only things I agree with my president about are war and tax cuts"

So John Derbyshire, the greatest Anglo-American writer since Orwell, writes in a piece about President Bush's plan to colonize Mars.