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Friday, March 19, 2004

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.


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.


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.


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).


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 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.
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.

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

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 --

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"?

Monday, March 15, 2004

Dean Starr?

Ken Starr is one of six people interviewing for the position of Dean of the Pepperdine Law School.

Update: It appears that the link isn't working. You can read the full story by doing a google search with the words: Pepperdine and the Graphic and Ken Starr.

Update: The link is now working. The full story is here.
Bean Counter "philosopher"

Apparently Brian Leiter, a law professor at the University of Texas, has acted out his insecurity on a young law student.

I have always disliked Leiter. First, he is much too old to be studying Nietzsche. Even Zarathustra admonised that "There is no greater insult to a teacher than to forever remain a student." By this standard, Leiter would be spewed from Zarathustra's mouth. The name of my blog comes from my respect for - and enjoyment of - Nietzsche's writings. Overpundit. A pundit is something to be overcome. But, Brian, we all have to move on. We have to grow up. Zarathustra said so. How could you have you studied him your whole life but missed this penultimate truth?

Second, Leiter took pot shots at Professor Doug Kmiec. (Doug Kmiec, [a] right-wing law professor at Pepperdine, whose political prominence outstrips his intellectual achievements by a noticeable margin ..."). Again, Leiter has devoted his life, his very soul to studying someone whose whole philosophy is based on becoming the overman, and thus, having the strength to move on.

Third, any "fame" Lieter has is based almost solely on his numerous rankings. These rankings are a glorified form of bean counting. They could be done by a marginally qualified law student (or, indeed, an intelligent college student).

I am not impressed. Nor am I intimidated. I have not forgotten that, "In the beginning the noble caste was almost always the barbarian caste [who owed their strength] to will."

Holy Cross

Given the fabulous opinion of Crawford v. Washington, I thought I would share with you what Edward Bennett Williams described as the first transcript of a cross-examination. It comes from the Thirteenth Chapter of Daniel.

In Babylon there lived a man named Joakim, who married a very beautiful and God-fearing woman, Susanna, the daughter of Hilkiah; her pious parents had trained their daughter according to the law of Moses.

Joakim was very rich; he had a garden near his house, and the Jews had recourse to him often because he was the most respected of them all.

That year, two elders of the people were appointed judges, of whom the Lord said, "Wickedness has come out of Babylon: from the elders who were to govern the people as judges."

These men, to whom all brought their cases, frequented the house of Joakim.

When the people left at noon, Susanna used to enter her husband's garden for a walk.

When the old men saw her enter every day for her walk, they began to lust for her.

They suppressed their consciences; they would not allow their eyes to look to heaven, and did not keep in mind just judgments.

Though both were enamored of her, they did not tell each other their trouble, for they were ashamed to reveal their lustful desire to have her.

Day by day they watched eagerly for her.

One day they said to each other, "Let us be off for home, it is time for lunch." So they went out and parted; but both turned back, and when they met again, they asked each other the reason. They admitted their lust, and then they agreed to look for an occasion when they could meet her alone.

One day, while they were waiting for the right moment, she entered the garden as usual, with two maids only. She decided to bathe, for the weather was warm.

Nobody else was there except the two elders, who had hidden themselves and were watching her.

"Bring me oil and soap," she said to the maids, "and shut the garden doors while I bathe."

They did as she said; they shut the garden doors and left by the side gate to fetch what she had ordered, unaware that the elders were hidden inside.

As soon as the maids had left, the two old men got up and hurried to her.

"Look," they said, "the garden doors are shut, and no one can see us; give in to our desire, and lie with us.

If you refuse, we will testify against you that you dismissed your maids because a young man was here with you."

"I am completely trapped," Susanna groaned. "If I yield, it will be my death; if I refuse, I cannot escape your power.

Yet it is better for me to fall into your power without guilt than to sin before the Lord."

Then Susanna shrieked, and the old men also shouted at her, as one of them ran to open the garden doors.

When the people in the house heard the cries from the garden, they rushed in by the side gate to see what had happened to her.

At the accusations by the old men, the servants felt very much ashamed, for never had any such thing been said about Susanna.

When the people came to her husband Joakim the next day, the two wicked elders also came, fully determined to put Susanna to death. Before all the people they ordered:

"Send for Susanna, the daughter of Hilkiah, the wife of Joakim." When she was sent for, she came with her parents, children and all her relatives.

Susanna, very delicate and beautiful, was veiled; but those wicked men ordered her to uncover her face so as to sate themselves with her beauty.

All her relatives and the onlookers were weeping.

In the midst of the people the two elders rose up and laid their hands on her head.

Through her tears she looked up to heaven, for she trusted in the Lord wholeheartedly.

The elders made this accusation: "As we were walking in the garden alone, this woman entered with two girls and shut the doors of the garden, dismissing the girls.

A young man, who was hidden there, came and lay with her.

When we, in a corner of the garden, saw this crime, we ran toward them.

We saw them lying together, but the man we could not hold, because he was stronger than we; he opened the doors and ran off.

Then we seized this one and asked who the young man was, but she refused to tell us. We testify to this." The assembly believed them, since they were elders and judges of the people, and they condemned her to death.

But Susanna cried aloud: "O eternal God, you know what is hidden and are aware of all things before they come to be: you know that they have testified falsely against me. Here I am about to die, though I have done none of the things with which these wicked men have charged me."

The Lord heard her prayer.

[Enter the Cross-Examiner] As she was being led to execution, God stirred up the holy spirit of a young boy named Daniel, and he cried aloud: "I will have no part in the death of this woman."

All the people turned and asked him, "What is this you are saying?"

He stood in their midst and continued, "Are you such fools, O Israelites! To condemn a woman of Israel without examination and without clear evidence?

Return to court, for they have testified falsely against her."

Then all the people returned in haste. To Daniel the elders said, "Come, sit with us and inform us, since God has given you the prestige of old age."

[Enter the Crucible of Cross-Examination]
But he replied, "Separate these two far from one another that I may examine them."

After they were separated one from the other, he called one of them and said: "How you have grown evil with age! Now have your past sins come to term:

passing unjust sentences, condemning the innocent, and freeing the guilty, although the Lord says, "The innocent and the just you shall not put to death.'

Now, then, if you were a witness, tell me under what tree you saw them together."

"Under a mastic tree," he answered. "Your fine lie has cost you your head," said Daniel; "for the angel of God shall receive the sentence from him and split you in two."

Putting him to one side, he ordered the other one to be brought. "Offspring of Canaan, not of Judah," Daniel said to him, "beauty has seduced you, lust has subverted your conscience.

This is how you acted with the daughters of Israel, and in their fear they yielded to you; but a daughter of Judah did not tolerate your wickedness.

Now, then, tell me under what tree you surprised them together."

"Under an oak," he said. "Your fine lie has cost you also your head," said Daniel; "for the angel of God waits with a sword to cut you in two so as to make an end of you both."

The whole assembly cried aloud, blessing God who saves those that hope in him.

They rose up against the two elders, for by their own words Daniel had convicted them of perjury. According to the law of Moses, they inflicted on them the penalty they had plotted to impose on their neighbor: they put them to death. Thus was innocent blood spared that day.

Hilkiah and his wife praised God for their daughter Susanna, as did Joakim her husband and all her relatives, because she was found innocent of any shameful deed.

And from that day onward Daniel was greatly esteemed by the people.