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
Appellant
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.”
Appellee
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!