Facts: Sabri was charged under 18 U.S.C. § 666 for bribing an agency that receives federal funds. Sabri moved to dismiss the indictment, claiming that § 666 was facially unconstitutional because it lacked a “jurisdictional hook” between the federal funds and the conduct. The district court accepted the argument and dismissed the indictment. The federal government appealed to the Eighth Circuit.
Issue: Did Congress have the power to enact § 666 under the Spending Clause or some other enumerated power?
Rule: All statutes passed by Congress must fall within one of its enumerated powers in order to be constitutional.
Analysis: The majority starts by saying that § 666 is not a condition on the receipt of federal funds and cannot be sustained on that basis. The court notes that § 666 does not address itself to the conduct of the recipient of federal funds, but rather to the conduct of third parties.
However, the court does find that § 666 is constitutional under a combination of the Necessary and Proper Clause and the Spending Clause. The statute doesn’t seem to hold up under the Spending Clause alone, so the court looks elsewhere in the Constitution. The court cites authority for the proposition that the Necessary and Proper Clause, among other things, allows Congress to pass laws that help it disburse federal funds. The court sees the Necessary and Proper Clause as an affirmation that Congress can use a wide range of means to achieve constitutionally enumerated ends.
The court says that the issue therefore boils down to whether § 666 is an appropriate means to achieve a constitutional end under the Spending Clause. There are two questions to be answered: (1) Can Congress enact criminal legislation under the Necessary and Proper Clause? (2) Is the enactment of § 666 rationally related to the desired end?
The majority has no problem finding support for their conclusion that the federal government has the power to pass federal criminal laws to help enforce its constitutional powers. The majority further claims that § 666 is rationally related to its goal of protecting the integrity of federal funds and not so broad as to regulate purely state or local criminal conduct.
Judge Bye, dissenting, says the law may be applied to offenders whose conduct has no connection to federal interests, and thus the law oversteps the bounds of federal constitutional authority. Bye says that “necessary” and “proper” are separate requirements. Bye finds that some of the authority that would be given to Congress if § 666 was upheld is not “proper”. Bye makes a big deal out of the fact that at oral argument the government disavowed the Necessary and Proper Clause as a basis for upholding § 666.
Conclusion: The district court is reversed.
Notes on Oral Argument
Is the statute facially unconstitutional? The most important issue according to the government is stare decisis. They say that the Supreme Court has already considered the basis of the defendant’s motion to dismiss and has already rejected it. The district court’s order is purported to conflict with the holding of United States v. Salinas.
In that case, the Supreme
Court rejected the argument that § 666 was not allowed under the Spending
Clause without the requirement that government show an effect on federal
funds. The government claims that the
only way to distinguish the petitioner’s argument in Salinas and the defendant’s argument here is that while the
petitioner in Salinas was asking for
the statute to be declared unconstitutional as applied to him in particular, Sabri
wants the district court to declare the statute unconstitutional as applied to
everyone, including, the government points out, Salinas. But, the government says, the Supreme Court
has already found that the statute is
constitution as applied to
The government cites some sources for the belief that § 666 is constitutional under the Spending Clause.
One of the judges asks why §
666 cannot be justified under the Necessary and Proper Clause. The
A judge asks whether forcing Sabri to make an as-applied challenge at the close of the evidence would shift the burden of proving a federal “nexus” or connection from the government to the defendant (who would have to show a lack of a connection).
Another judge points out that
even if the district court is affirmed, the defendant doesn’t get to walk, but
rather will have to face the music in
“I’d like to save the remainder of my time, if I could.” “You have no time remaining.” “I’ll save it anyway.”
The appellee claims that § 666 is the only statute they can find that is purportedly allowed under Congress’s Spending Clause power. He claims that Congress doesn’t have the power to pass federal criminal statutes under that Clause. One of the judges says that even though the Constitution doesn’t explicitly authorize statutes like this, there is a strong federal interest in protecting federally funded programs.
The appellee says that the purported authorization of § 666 and other potential federal criminal statutes under the Spending Clause plus the Necessary and Proper Clause would result in a general police power and therefore no limit on what criminal conduct the federal government could regulate, so long as it could claim it was protecting the “general welfare”.
The appellee disputes that
the section of
The judge asks about the so-called “cross-cutting conditions” on federal grants like anti-discrimination provisions. Could § 666 be considered an “anti-corruption” condition? The appellee kind of dodges the issue.
At the end of oral argument, one of the judges gushes about how great the briefs and arguments were. Yay!