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April 2004

The Aggregate Affects Test and Due Process

Why doesn't it, in the context of criminal laws, violate due process for the courts to apply the aggregate affects test to criminal statutes enacted pursuant to the Commerce Clause? If one can't be punished for the crimes of others, then how can one's offense conduct - which by itself would not have any effect on interstate commerce - be aggregated with that of others. In effect this punishes one for the acts of all others?

After all, enacting a crime is a necessary antecedent to punishment.  Thus, isn't reaching A's conduct, which is possible only by aggregatinv B-Z's conduct, the same as punishing A for B-Z's acts?    

An Introduction to Crime & Federalism

The text of the Constitution enumerates, and therefore limits, Congress' powers.  Article I, §1. ("All legislative powers herein granted shall be vested in a Congress of the United States [ ].")   Contrast this language with Article II, §1 which says, "The executive Power shall be vested in a President of the United States of America."  And Article III, §1, which states, "The judicial Power of the United States, shall be vested in one Supreme Court [ ]."  Notice that only those legislative powers granted belong to Congress.  This constitutional language was not accidental. 

The Federalist Papers address the principle of enumerated powers.  "[I]t is to be remembered, that the general government is not to be charged with the whole power of making and administering laws.  Its jurisdiction is limited to certain enumerated objects[ ]."  The Federalist No. 41.  The Federalist No. 45 famously states: "The powers delegated by the proposed Constitution to the Federal Government are few and defined."

We can count on one hand Congress' textual basis to define or punish crimes.  Thus, "[t]he Congress shall have Power to declare the Punishment of Treason [ ],"  Art. III, §3, the power to "define and punish Piracies and Felonies committed on the high seas and Offenses against the Law of Nations," Art. I, §8 Cl. 10, and "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States." Art. I, §8 Cl. 6.  Today, however, the number of criminal statutes is almost inestimable.

According to a report of the American Bar Association, there are over 3,300 federal crimes.  Federalization of Federal Criminal Law, Appendix C. These laws are interspersed in 50 titles of the United States Code.  Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. Law. Rev. 46 (1998).  Also, the violation of federal regulations is often made criminal: the ABA estimates that the violation of at least 10,000 regulations is a federal crime.  Federalization of Federal Criminal Law at 10.

We used to be able to count on one hand when Congress could define or punish crimes.  Now no one can know the extent of potential criminal liability under federal law.  This blog will explore what happened.

Sabri v. United States - A Class Project

For Advanced Constitutional Law Supreme Court Seminar, I had to assume the identity of Justice Anthony M. Kennedy and write an opinion from his judicial perspective. The case I chose was Sabri v. United States (No. 03-44). My prediction was the Justice Kennedy would vote to strike down the federal program bribery statute, 18 U.S.C. 666(a)(2). I lost the vote, since my other classmates, assuming the identity of other justices, outvoted me.

What follows is my dissenting opinion. [Note: This opinion was due on October 25, 2003 and thus did not have the benefit of briefing. Also, I did not focus on the Commerce Clause since the class voted it constitutional on Spending Clause grounds. Moreover, I can't figure out why Sabri challenged the law based on the statutory language.].

UPDATE: I could not have been more wrong. A unanimous Court upheld the law.

Justice Kennedy, dissenting.

Presented before this Court are analytically complex, but nonetheless answerable questions. First, does 18 U.S.C. 666(a)(2) (Section 666) require on its face that the Government prove a nexus between the challenged conduct and federal funds? (1) Second, if no such nexus is required, is Section 666 constitutional under the Spending Clause? More generally, we must answer this question: Does the Spending Clause confer upon Congress a power that, upon its exercise, becomes unlimited?

The majority's holding should have been based on a simple syllogism. To wit, Congress may not criminalize conduct unrelated to a federal interest. Section 666 does not require the Government to show a direct nexus between the challenged conduct and federal funds. Therefore, Section 666 is unconstitutional.

Instead, the majority concluded that although Section 666 does not require the Government to prove a nexus between the challenged conduct and federal funds, Section 666 was nonetheless constitutional under the Spending Clause as a federal regulation attached as a condition to federal funds. Because this holding destroys the Founders' conception of both enumerated powers and federalism, I must dissent.

It is axiomatic that Congress is limited to enumerated powers. M'Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961) ("The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.") By definition, to enumerate some things is to exclude others. The Founders listed and therefore limited Congress' power to define and punish crimes. Art. I, § 8, Cl. 6 (counterfeiting U.S. currency); Art. I, § 8, Cl. 10 (piracies and felonies committed on the high seas); Art. III, § 3, Cl. 2 (treason). In each of these areas, Congress has a substantial and legitimate interest since only it may coin money; the high seas are of national import; and one can commit treason only against his country, not his state. Thus, based on the text of the Constitution wherein the power to define and punish crimes is specifically mentioned, Congress does not have the power to enact Section 666.

Today, however, the federal criminal law receives its own title in the United States Code, see, e.g., Title 18 U.S.C. §§ 1-2722, largely because this Court has generously read the power to punish and define crimes into other constitutional provisions. A majority of this Court would read into the Spending Clause a general power to define and punish crimes. This is a misreading of our other federal powers cases addressing those limited acts that Congress may criminalize.

Admittedly, Congress may enact federal criminal statutes under the Commerce Clause. United States v. Lopez, 514 U.S. 549 (1995). However, the activity must substantially affect interstate commerce such that the conduct can fairly be said to be national, and not merely local. Mere possession of a firearm is not a national matter even though the illegal use of firearms result in much harm to the economy. Lopez, 514 U.S. 549. Sexual assault is also not a national issue, even though gender motivated violence, in the aggregate, has a national affect. United States v. Morrison, 529 U.S. 598 (2000). Our holdings in Lopez and Morrison were not so much based on affirmative premises, or the definition of "commerce."

Rather, as a matter of constitutional interpretation, a limited reading of Congressional power is required lest we "would obliterate the distinction of what is national and what is local." Jones & Laughlin Steel, 301 U.S. 1, 37 (1937) (Cardozo, J., concurring); United States v. Morrison, 529 U.S. 598 (2000) ("[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.") (internal citations and quotation marks omitted). Concerns for the proper scope of the national government - present during the founding of this great country, present during the days of the great Cardozo, and present today - should have guided the majority's reading of the Spending Clause.

The text of the Spending Clause cannot provide Congress the power the Court gives it today, since the Spending Clause is limited on its face to the "Power To provide for the general Welfare." Art. I, § 8, Cl. 1. Admittedly, "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." United States v. Butler, 297 U.S. 1, 66 (1936). Never the less, before today, the Spending Clause was not read by this Court to confer upon Congress the power to define and punish crimes.

The text of the Spending Clause does not provide a grant of police power. Nor is there an enumerated power to punish bribery. Still, somehow the Court reads into the power to spend for the general welfare the power to define and punish crimes. This reading can not be correct textually for it is impossible to read "police power" into the Spending Clause. What this Court should have said is that the Spending Clause does not confer upon Congress the power to define and punish crimes unless those crimes relate to a substantial federal interest.

Moreover, this holding is also required by past precedent, for although the question before the Court today is one of first impression, the principle of enumerated powers that underlie our most significant federalism cases.

In United States v. Lopez, 514 U.S. 549 (1995), we struck down the Guns Free School Zone Act, 18 U.S.C. 922(g)(1)(A), as exceeding Congresss commerce power because if Congress could punish the mere possession of a firearm within 1,000 feet of a school zone, then it would also necessarily follow that Congress could regulate all garden variety crimes, family law, and education.(2) In United States v. Morrison, 120 S.Ct. 1740 (2000) we struck down the Violence Against Women Act, 42 U.S.C. 13981, because if Congress had the power to provide a federal private right of action for domestic abuse (a very serious but also very local problem), then it would necessarily follow that there would be no limits on Congressional power. Finally, in Jones v. United States, 120 S.Ct. 1904 (2000) we construed the federal arson statute, 18 U.S.C. 844(i), narrowly since it would have had substantial constitutional defects if it extended to the burning of a home that involved in interstate commerce, even though the value of the home was not insubstantial. Collectively, these cases stand for the proposition that under the Constitution, the long arm of Washington can not extend to activities truly local in nature and matters of traditional state concern. (3) Applying a similar analysis, we must ask if Congress has the power to enact Section 666, does it not also have the power to reach all other truly local affairs? The answer to this question is, yes.

If, as the majority seems to hold, Congress may enact any legislation to protect the integrity of federal funds, even legislation that does not require the Government to prove a nexus between the federal funds and the challenged conduct, then are there any conceivable limits to Congress' power under the Spending Clause? To ask the question is to answer it. And how can one doubt the answer, based on the facts of this case.

Count 1 of the federal indictment against petitioner alleges that he offered $5,000 to Herron to help him obtain regulatory approval for a local project. Count 2 alleges that petitioner offered Herron $10,000 as a payment for Herron to threaten local property owners with the City's power of eminent domain if those owners did not sell out to petitioner. (4) These alleged private acts of petitioner are matters of wholly local corruption, not involving the allocation or receipt of any federal feds, are punishable by Minnesota law, Minn. Stat. 609.42. Yet the language of 666 covers both of these truly local acts. (5) According to the majority, it would not matter if Congress enacted a General Criminal Law Statute, which is almost what Section 666 is. Section 666 is, after all, a general anticorruption statute that makes wholly local acts of corruption a federal crime. The issues of Congressional overreaching, present in Lopez, Morrison, and Jones, do not seem to matter here.

Regardless, as a matter of textual interpretation, the Spending Clause can not per se provide Congress the power the Court today gives. (6) Nor should Section 666 have been upheld as a condition attached to federal funds.

Congress may attach conditions to the recipient of federal funds, South Dakota v. Dole, 483 U.S. 203 (1987), allowing Congress to do indirectly what it may not do so directly. Oklahoma v. Civil Service Comm'n, 330 U.S. 127 (1947). Thus, Congress could nudge South Dakota to raise its minimum drinking age to 21, and persuade Oklahoma to fire a civil service employee engaged in political activities.

Unlike in South Dakota and Oklahoma, Congress here did not encourage the States to do something. It might be a different case if Congress had said to the States, "In exchange for our providing this federal grant in the amount of $10,000, you agree that you will vigorously enforce your state anticorruption laws. A consequence of your failure to do so will be the loss of future federal funds." But that is not what Congress did here.

Rather than nudge the hand of the States in a given direction, Congress slapped it away. Congress federalized local anticorruption law. Congress went too far. (7)

At any rate, the power to attach conditions to federal funds is not an independent conferral of power, nor is it unqualified. (8) Nor does the conditions doctrine does not give Congress the power to conspire with the states to allow Congress to violate principles of federalism.

The genius of the Founders was that they split the atom of sovereignty. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("Federalism was our Nation's own discovery. [ ] It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other"). The Framers recognized that federalism was not good qua good: Federalism was good because it furthered individual liberty. "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison). By limiting the States and Congress to their proper prerogatives, the People would enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.

And just as separation of powers prevents Congress from overstepping its constitutional prerogative, INS. v. Chadha, 462 U.S. 919 (1983), Congress may also not overstep structural limitations imposed by federalism by attaching conditions to federal funds. Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991) ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.")

Nor may states "consent" to the violation of federalism, an alleged condition attached to federal funds notwithstanding. The majority regrettably finds otherwise. Under their theory the States and Congress may act-in-concert to violate principles of federalism. This understanding is false. The States have a police power. Congress does not. The States and Congress may not act-in-concert to provide Congress power the Constitution does not provide. Federalism, like separation of powers, is a structural limitation on power. Unlike an individual right that a citizen may waive when it serves a tactical purpose, federalism constraints are absolute.

In conclusion, I dissent because Congress is limited to enumerated powers. These enumerated powers do not include a general police power. Nor can a general police power can not be read into the Spending Clause. Nor may a police power flow from federal expenditures. Moreover, Congress can not attach a criminal statute as a condition to a federal grant since States can not consent to something they can not do. Namely, a State can not allow Congress to violate principles of Federalism, anymore than the Executive can allow Congress to violate principles of Separation of Powers. Federalism limits Congressional encroachment into state and local affairs absent a significant federal interest.

Unfortunately, the Court does not recognize the imprudence of its holding. In refusing to invalidate the Section 666, the Court today holds that Congress has the power to regulate family law, garden variety crimes, and even education. All Congress need do to reach these truly local matters is provide a $10,001 grant to each of the 50 States. Since all 50 States already receive such grants, Congress, after reading this holding, will have work much to do.

(1) The Court correctly held that, as a matter of statutory interpretation, Section 666 does not facially require the Government to prove a nexus between the bribe and federal funds. Although this Court should construe statutes narrowly to avoid constitutional questions, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988), “No rule of construction [] requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope.” United States v. Raynor, 302 U.S. 540, 552 (193). Title 18 U.S.C. 666(a)(2) is broad, expansive, and unequivocal. It finds criminally liable any person who offers a bribe of $5,000 or more to an employee of a state or government agency that received $10,000 or more a year in federal grants or loans. This interpretation is also guided by precedent. Salinas v. United States, 522 U.S. 52, 5X (1997) (interpreting parallel section of 18 U.S.C. 666 said “The enactment’s expansive, unqualified language, both as to bribes forbidden and the entities covered, does not support the interpretation that federal funds must be affected…”). Indeed, the Government agrees with this interpretation, as it indicted petitioner for alleged bribes involving wholly local corruption.

(2) Yes, if it were true that Congress had the power to reach the mere possession of a firearm within 1,000 feet of a school, then it would have to follow that Congress could reach other areas of traditional state concern, such as criminal law, family law, and education. Since Congress can not, a priori, reach these areas of traditional state concern, then these it follows that these corollaries are false because they necessarily followed their antecedent (upholding the GFSZA). This antecedent, as we held, was false.

(3) It used to be that if Congress had an enumerated power to enact some piece of legislation, then it had the power under the Supremacy Clause to preempt any state action in that area. In order words, Congress either had the power to enact a law, or it did not. However, our modern cases require the Court to, as part of the initial inquiry into the scope of an enumerated power, consider the federalism implications of a broad conferral of power.

(4) That local governments have such broad power to take property for mere private use is itself a problem not before this Court today.

(5) Count 3 alleges that petitioner offered Herron an $80,000 bribe. Whether Congress is able to punish acts involving these substantial amounts of money under the Commerce Clause remains open. See, Jones v. United States (interpreting federal arson statute to cover burning of home not used in interstate commerce but nonetheless valued at $87,000 would raise serious constitutional questions). Today this Court only addresses limitations on Congress’ power under the Spending Clause.

(6) For the same reasons Section 666 can not be sustained under Congress’ spending power, it may also not be upheld under the Necessary and Proper Clause. Such a broad reading of the Necessary and Proper Clause would likewise obliterate the concepts of enumerated powers and federalism.

(7) The majority’s reliance on Salinas v. United States, 522 U.S. 52 (1997) and Fischer v. United States, 529 U.S. 667 (2000) are not persuasive. In Salinas we specifically left open the question whether in some other situation, Section 666 would be unconstitutional. This is just that situation since unlike in Salinas, the petitioner here is a private party not delegated the power over any federal funds. In Fischer we merely answered the question whether “benefits” included federal grant.

(8) In Dole, this Court recognized that conditions attached to federal funds must meet four requirements. First, the spending must be for the general welfare. Second, the conditions attached to expenditures must be unambiguous. Third, the condition imposed upon the states must related to a federal interest. Fourth, the condition can not violate other provisions of the Constitution. Thus, applying the Dole test, Section 666 must fail since the statute does not require the Government to prove a federal interest in the bribe. Indeed, Counts 1 & 2 of the Indictment against petitioner involve matters of wholly local corruption. What federal interest exists in a bribe urging a local councilman to use the power of eminent against local property owners or in obtaining local regulatory approval? How the Court upheld Section 666 is a mystery.