Constitutional Law Class Notes 2/2/04


This week is all Sabri all the time!


An aside about deference – a common thread


To clarify a point from last time: The scope of the Spending Clause is broader, according to the Court, than the Commerce Clause.  The Court perceives Congress as having more room to maneuver under the Spending Clause than under the Commerce Clause.  For example, Lopez says we can’t have a nationally mandated primary school curriculum justified by the Commerce Clause power.


The Court will not second-guess Congress about whether a certain economic policy will be effective, as long as the policy is enacted under one of the enumerated powers.  In Wickard, the regulation of Filburn’s wheat might not have been necessary to get us out of the Depression, but the Court gave Congress deference as to the means Congress chose to stoke interstate commerce.


The idea of deference is very important throughout this semester with respect to every subject we’ll study.  Every case we’ll see this semester is, in a sense, about deference.  Every case includes a constitutional challenge to what the government wants to do.  In many cases, statutes (legislative power) will be challenged, while in some other cases, executive power will be challenged.  Whenever the Court is begin asked to invalidate an exercise of governmental power on the grounds that such exercise is unconstitutional, the Court, implicitly or explicitly, asks the question: “How much deference should our part of the government give another governmental authority to do what it feels is right?”


If Congress has passed a law, presumably Congress believed itself to be acting constitutionally.  Congress isn’t in the business of violating its own oath.  Every time the Supreme Court overrides an act of Congress, it overrides the judgment of the members of that body.  It is, in a sense, an indictment of the integrity of another branch of government.  So the Court always thinks to itself: “How much latitude should we give Congress on this issue?”


Deference cuts through all the topics we’ll cover in this class.  It also relates to the “standard of review” the Court should apply when adjudicating the particular constitutional claim in front of it.  The higher the standard of review, the more scrutiny the Court gives the relevant government agencies involved.  A rigorous standard of review is used, for example, in freedom of speech claims.  A lower standard of review or scrutiny gives the government more deference.  So in each topic we study, we’ll ask what standard of review will apply with respect to each case.


Foley says that the Court is struggling with the standard of review issue in the area of federalism.  Breyer’s dissent in Lopez says that the “rational basis test” applies to Commerce Clause analysis.  The “rational basis test” is a very relaxed standard of scrutiny.  That means Congress gets a big benefit of the doubt.  Breyer thought the Court shouldn’t make a judgment about whether guns near schools would lead to damage to the interstate economy, but rather the Court should review whether Congress could rationally think that guns near schools could conceivably lead to damage to interstate commerce.  Breyer would say as long as such a connection is conceivable, Congress is entitled to make it and have it upheld.


Note that the Court didn’t really respond to Breyer on that point.  The majority focused on the fact that Breyer couldn’t come up with a law that would go over the line if the statute under consideration was upheld.  That leads us to ask whether the level of review in Commerce Clause cases has been raised.  Foley says that Lopez and Morrison have not clearly set out just what standard of review the Court is applying.


We saw last week in South Dakota v. Dole references to the “rational basis test” as part of the inquiry in a Spending Clause case.  That was the test for applying the “general welfare” prong.  The majority and dissent parted ways on the “relatedness” prong.  Justice O’Connor was unwilling to apply such a loose standard of review as allowed by the majority.


Note that you could applying different amounts of deference, or, in other words, different standards of review with regard to different parts of a test.  The Court can let the standard of scrutiny “float” up and down, even within the same case.  So pay attention to what level of scrutiny is being used.


United States v. Sabri


Sabri was a developer in Minnesota.  He was indicted for allegedly bribing a city council member.  Who indicted him?  He was indicted by a federal prosecutor.  What federal law is Sabri alleged to have violated 18 U.S.C. § 666.  Are there some funky words in the statute?  What does it mean to “corruptly” give something?  It can be “anything of value”.  It can be given to “any person”.  The statute applies not only to state and local government but also Indian tribes.  The statute doesn’t specifically target state officials.  The statute actually also includes non-governmental organizations that receive federal funds.  The statute seems pretty broad!  The size of the bribe could be much lower than the threshold value.  The threshold seems to deal with not the size of the bribe, but the size of the business or transaction that the wrongdoer is seeking to influence.


So the statute’s words seem to say that giving anything of value to any person with the intent of influencing a state agent or agency will be bribery.  The statute seems very broad!  Is Congress trying to grab too much authority?


Congress has written this statute and yet Congress has limited scope of authority.  Congress has the commerce power.  Could this statute be justified under that power?  Congress is spending money.  Could this statute be justified under the Spending Clause?


Does the challenge in this case have to be a facial challenge?  Could Sabri have brought an as-applied challenge instead?  How is Sabri using the term “facial challenge”?


Why is it that the analysis of South Dakota v. Dole does not apply to this case?  Why does this case raise altogether new issues?


We’ll talk about the disagreement of the majority and dissent in regard to the scope of the Necessary and Proper Clause.  As the dissent reads this statute, the federal government could jail someone for bribing a meat inspector even though the city might only get money for its parks.  Is this a correct reading of the statute?


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