Constitutional Law Class Notes 2/5/04


Sabri distinguished from Dole


Sabri, although a Spending Clause case, does not involve the analysis we looked at in South Dakota v. Dole.  How come?  Well, the Dole analysis is for something totally different.  Why does that analysis involve a separate problem?


In this case, the federal government is contracting with the city of Minneapolis.  The federal government doesn’t just hand out money with no strings.  You actually have to use the money to revitalize neighborhoods, and that means a certain thing in terms of zoning, health and safety, and so on.  Minneapolis is certainly obligated to do something in return for getting the federal funds.  But that’s not what this case is about.  Why?


It’s has to do with the third party!  This criminal statute regulates the conduct of third parties, and not the recipients of the money.  This law is directed against Sabri and others in his position.  The law is not directed against the city of Minneapolis as the recipients of the funds.  This is different than Dole: The state of South Dakota itself was having restrictions imposed on it.  It wasn’t 19 year old potential drinkers who were directly regulated.


One of the goals of this course is to translate what we know into the most specific legal language.


Notwithstanding the difference between the cases, can we make an argument from Dole that will help in this case?  You could try to make an argument from O’Connor’s dissent.


Does this statute go beyond the scope of protecting federal funds?  Is it regulatory in a sense that will bother Justice O’Connor?  Well, in some sense, of course it’s regulatory.  We want to regulate people who engage in bribery.  But we’re not just invoking the Spending Clause, but also the Necessary and Proper Clause.  We could argue that the statute is necessary and proper for enforcing the spending power.


How else can we use the “ethos” of Dole?  The main argument is that this law, because it’s so broad and attenuated, it must flunk the Necessary and Proper Clause as not really necessary under any definition of that term.  In fact, one of the amicus briefs for Sabri argues that “necessary” really means “necessary” and not just convenient!


Maybe there is a way to use Dole as a secondary battle for Sabri.  We have our necessary and proper points.  But let’s think of the case from the perspective of the state governments whose interests the Constitution is trying to protect by limiting federal power.  From that point of view, if Congress has the ability to use the Necessary and Proper Clause in the way that the government is arguing here, then there will be federal regulation that kind of piggybacks on all the spending in which Congress engages.


This is worse!  These are hidden conditions!  At least in Dole, the conditions were up-front.  Is this a “gotcha” situation?


We expect state and local law to punish state and local officials.  But if we allow this new power to tag along, then whenever Congress spends more than $10,000, you add this “hidden condition”.  So this isn’t a direct Dole argument, nor is it a direct Lopez argument.  But it appeals to the fundamental federalism values expressed in those cases.


Dole was a quid pro quo.  Could Congress have said: “We’re not going to ask South Dakota to agree to a minimum drinking age of 21.  Instead, we’re going to give them some money to build some roads and laws that say that they must build the roads safely.  Then, two years later, after road construction starts, we’ll impose as a matter of general federal regulatory law a drinking age of 21.


“You can never force a judge to do anything!  They’ve got the robes on!”


Briefs are written both to persuade and to show a judge how they could write an opinion to rule for the side they want to rule for.


You could use a case that includes the Necessary and Proper Clause plus something else to argue for the Spending Clause plus the Necessary and Proper Clause.


Some thoughts on the briefs


The Solicitor General’s office writes extremely good briefs.  The briefs are good models for our own briefs.  They know what they’re doing and they know who their audience is and how to structure an argument for their audience.


The petitioner’s brief is written by someone who is less sophisticated as to practice before the Supreme Court.  Foley thinks it is too generic and talks about federalism and federalism values in terms that are too general.  It doesn’t talk enough about the factual points of the case.


Foley would start by saying: “This law causes people to be subject to federal criminal law even when there is absolutely no connection between the bribe they offer and a threat to federal funds.”  We may be concerned about corrupt government employees, but there’s no concern that there will be crossover between one huge bureaucracy and another.  That would be Foley’s central point.  This argument is buried in the government’s brief.


The amicus brief kind of falls between the two in Foley’s mind.  The brief provides information to the justices that they would want to know (especially Scalia and Thomas who are interested in original intent).  He thinks it works well as an amicus brief, but it wouldn’t work as the brief for a party.  The amicus brief doesn’t hold back in suggesting that the Court overrule some of its old decisions.  It’s unlikely that you’re going to win by having the Court overturn a 200 year old case.  But many of the justices like really old history and stuff.


We’re not trying to reach a definitive conclusion about Sabri.  The thing to pay attention to is what I think the strongest argument is on each side of the case.  If I were Sabri’s lawyer, what would I put down at the beginning of the brief?  What might swing O’Connor or Kennedy?  Or if I’m the government trying to uphold this law, what are the top arguments I would want to make in response?  I would probably want to argue, among other things, that we can uphold this statute without subverting our core idea of dual sovereignty.


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