Constitutional Law Class Notes 2/3/04

More on Sabri

We talked at length about the statute, 18 U.S.C. § 666 yesterday. Now, let’s focus on the constitutional argument that Sabri is making as to why the statute is unconstitutional. What part of the Constitution does Sabri cite in support of his point?

Sabri claims that the statute is facially unconstitutional. How come? Is it a matter of relatedness between the bribe and federal spending? Is there an inadequate “jurisdictional hook” in the statute?

What was the “jurisdictional hook” issue in Lopez? It’s not the “substantial effect” test. The question is whether the statute addresses, for example, “interstate commerce” and only allows prosecution if the conduct is related to that power of Congress.

§ 666 does not have a jurisdictional hook of that type. There is a requirement that the bribe be received by a government or organization that receives a minimum of $10,000 in federal funds. Why isn’t the $10,000 part of the statute a jurisdictional hook? It’s not a Commerce Clause hook, but that’s not the constitutional peg on which we’re trying to hang this statute. Could it be that we have a jurisdictional hook but that the hook is insufficient?

We could say that Congress attempted a jurisdictional hook here. Congress didn’t say that we’re going to punish all acts of bribery against state and local officials. They limited the statute to agencies that receive a minimum amount of federal funds. But there may be an insufficient connection between the bribe and the federal interest that’s being protected.

The existence of a jurisdictional hook is a type of connection or nexus. This case insists that an element of the crime is the fact that an agency received $10,000 in federal funds. That creates a connection between the conduct to be criminalized and the Spending Clause. But this connection might not be good enough.

A jurisdictional hook is an element of the statute that is explicitly tied to the source of federal authority. The presence or absence of a jurisdictional hook is important to the courts’ reasoning, but it’s only one factor to be analyzed.

What is the Court going to do? Foley thinks the federal government has four safe votes. But if cert was granted, it means there are at least four justices interested in reviewing the case.

“Facial” challenges

Why does Sabri insist he’s bringing a “facial” challenge? Sabri wants to challenge the statute “on its face”, that is, as written. He claims that the statute, as written, is improper.

This concept is in contrast to an “as-applied” challenge. In such a challenge, you claim that the statute isn’t faulty on its face, but it is defective as applied to a certain situation (i.e. my situation).

Sabri doesn’t go with an as-applied challenge because it would be a sure loser for him. How come? Well, the facts don’t look good for Sabri.

Also, note that this case is coming up on a motion to dismiss an indictment rather than to overturn a conviction. The district court granted the motion to dismiss the indictment, which is why Sabri never got to trial. The whole question of “facial” versus “as-applied” challenges has nothing to do with Sabri’s guilt or innocence as it would be proved to a jury. The bribe is merely “alleged”, but for the purposes of this challenge we could accept the facts as given.

But why would an “as-applied” challenge fail?

The Court will ask similar questions in the cases of both “facial” and “as-applied” challenges. For example: Is this statute always constitutional, in each and every instance that it could apply? That’s one extreme. On the other hand, is there a single instance in which the government could constitutionally bring charges? There’s the other extreme, and the two extremes define a range in the middle.

Sabri was said to benefit from the federal funds in connection to the bribe that he was giving. Sabri was trying to get a community development grant, and the grants came from the federal government! Sabri was trying to get $800,000 in federal funds! He was going to kick back $80,000 to a councilmember in order to get help getting that cash!

Sabri wants his development project to receive a portion of the federal funds, and his bribe is an effort to try to obtain those funds. The statute doesn’t require that kind of connection, but given that connection it seems like the prosecution is okay in this case. Sabri can’t get the indictment dismissed in its entirety if he brings an as-applied challenge. Sabri’s fact pattern has the kind of nexus that he argues the statute must have in order to be constitutional. That’s why an as-applied challenge would fail.

Sabri doesn’t claim that his conduct can’t constitutionally be punished by Congress. Sabri instead claims that the statute Congress wrote to get after him was a badly written statute.

Salinas is referenced in the briefs and the opinion. That case involved money which the federal government had been giving out to state and local agencies under a prison program. The court said that the statute applied to that fact pattern and that it was constitutional to apply it in that context.

It seems clear that it is legitimate for Congress to try to stop people from bribing state and local officials to try to get at federal funds.

So it turns out that at least some applications of this statute are valid and permissible. This statute is not 100% unconstitutional. It is not necessarily 100% constitutional, but it could also be somewhere in between.

There is a doctrine that says if the statute would be valid as applied to you, then you don’t have standing to sue to protect third party rights. Sabri tries to get around this by saying that even though he could be punished under a better written statute, there are some people who can’t get punished at all because of the way the statute is written.

Sabri is asking the court to say that just because the statute is written defectively, that makes the statute itself invalid in all its applications, because every time the government punishes under that statute, it punishes in a situation where it doesn’t have to ask about the “nexus”. Sabri thus argues that every prosecution under this statute is tainted and invalid.

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