Constitutional
Law Class Notes
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
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
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
“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.