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An Improper Extension of the Necessary and Proper Clause in Sabri

Article I, section 8 confers upon Congress the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers."  Of the Necessary and Proper Clause, the great Chief Justice Marshall wrote:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spit of the constitutional, are constitutional." 

M'Culloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 (1819).

In Sabri v. United States, eight members of the Court said: 

"Congress has authority under the Spending Clause to appropriate federal monies to promote the general welfare, and it has corresponding authority under the Necessary and Proper Clause to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars." 

Slip op. at *4 (citations omitted).

That sounds sensible.  It is rational (under the rational basis test) that Congress should be able to punish state and local officials who steal federally appropriated funds.  It is also rational that Congress be able to punish private actors who seek to wrongfully obtain this money.  But the scope of federal power at issue is much greater here. 

Recall what Sabri was charged with.  Count 1: Sabri allegedly offered Herron a $5,000 bribe for Herron's help in obtaining regulatory approval for the project.  Count 2: Sabri offered a $10,000 bribe to Herron in exchange for Herron's threatening local property owners with the City's power of eminent domain if the property owners would not sell their property to Sabri.  Count 3: Sabri offered Herron an $80,000 kickback offered in exchange for Herron's siphoning $800,000 in City development grants to Sabri. 

It seems clear that Section 666 is necessary and proper legislation to prevent the conduct described in Count 3.  But said the Court about all three counts: "[It is] obvious that the acts charged against Sabri himself were well within the limits of legitimate congressional concern."  Id. at 8.

I agree that there might be a national interest in preventing corrupt state and local officials from threatening local property owners with eminent domain.  But that would be proper, if at all, only under Congress' Section 5 enforcement power as legislation to protect the natural law - and constitutionalized - right to property.  But the Court is examining Congress' spending power.  In this context, what is the national SPENDING concern with corrupt officials threatening local property owners with eminent domain or approving a local downtown revitalization project?  Imagine the New York Times have the following top of the fold headline: Minneapolis approves zoning application.  That would be a joke.  But, says Justice Souter:

"Section 666(a)(2) addresses the problem at the sources of bribes, by rational means, to safeguard the integrity of the state, local, and tribal recipients of federal dollars. It is true, just as Sabri says, that not every bribe or kickback offered or paid to agents of governments covered by ยง666(b) will be traceably skimmed from specific federal payments, or show up in the guise of a quid pro quo for some dereliction in spending a federal grant. [ ] But this possibility portends no enforcement beyond the scope of federal interest, for the reason that corruption does not have to be that limited to affect the federal interest. Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value."

Slip op. at *4-5 (emphasis added).

This says to me that Congress may enact prophylactic legislation to protect federal spending.  In other words, even though two counts against Sabri involved wholly local conduct, Congress may nonetheless punish him to prevent him (and state officials) from hypothetical future conduct.  This reading makes me pessimistic about future federalism challenges to federal criminal laws.

It is not persuasive to say that "corrupt contractors do not deliver dollar-for-dollar value," id., because a corrupt contractor who receives money from the states would presumably be a constitutionally allowed target of an anticorruption statute.  Counts 1 & 2 have nothing to do with Sabri receiving federal funds. 

Only Justice Thomas (who would uphold the law on Commerce Clause grounds because of stare decisis concerns) recognized that the Court's approach "greatly and improperly expand[s] the reach of Congress' power under the Necessary and Proper Clause."  Concurrence of Justice Thomas at *5.  Justice Thomas said:

"[T]he Court appears to hold that the Necessary and Proper Clause authorizes the exercise of any power that is no more than a 'rational means' to effectuate one of Congress' enumerated powers." 

Id. at *1. 

I wonder how Chief Justice Marshall's admonition that legislation under the necessary and proper clause be "plainly adapted" has come to mean any legislation that is rational is constitutional.  To see why the Court is wrong to turn "plainly adapted" to rational basis, read this amicus brief from the CATO Institute; and this article from Professor Barnett.

I receive federal Stafford loans.  Could Congress make it a crime to assault me, on the ground that it is necessary and proper measure to ensure that I remain healthy and thus able to repay their loans?  After Sabri, is there any reason why Congress could not enact a federal assault statute that is applicable to anyone who assaults the recipient of federal aid?

The Hobbs Act and Federalism

United States v Hickman, 179 F.3d 230 (5th Cir. 1999) (Higginbotham, dissenting).

In this case an en banc panel of the Fifth Circuit equally split as to the constitutionality of the Hobbs Act as applied to five co-defendants.  Therefore, the Hobbs Act stands. 

Background of the Case

Five defendants were tried as co-conspirators for committing various robberies in Texas - six successful robberies and one attempted robbery.  The amount stolen in the successful robberies was: $230, $1848, $1300, $1160, $1300, and $2000.  One robbery led to a killing. 

Although state charges were filed, the United States Attorney obtained a federal indictment charging the defendants with violations of the Hobbs Act and the state charges were never pursued.  The theory for federal jurisdiction was "depletion-of-assets."  Namely, that the robbery victims will have less money to spend on interstate commerce.

Analytical Structure of Hickman

Congress has the power to regulate interstate commerce under Article I, section 8 of the Constitution.  Pursuant to United States v. Lopez, 514 U.S. 549 (1996) (the first case to strike down a law enacted pursuant to the commerce clause since 1937), this power spans three areas.  "First, Congress may regulate the use of the channels of interstate commerce."  Id. at 558.  "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities."  Id.  Third, Congress's commerce power "includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."  Id. at 558-59.  There are two crucial aspects of category three that demand attention.

First, in determining whether an activity substantially affects interstate commerce, the Court will aggregate all actual and potential instances of the conduct.  Wickard v. Filburn, 317 U.S. 111 (1942).  Thus, farmer Filburn's growing of 17 acres of wheat, while not itself having a substantial affect on interstate commerce, would if every farmer grew wheat for private consumption.  Second, congressional acts passed pursuant to the commerce clause were subject to rational basis level of review.  This means that the Court will accept almost any justification for the law.

Since the robberies did not involve categories 1 or 2, the dissenters attempted to determine the appropriate level of review for laws purportedly constitution under category 3.  The dissenters "would hold that substantial effects upon interstate commerce may not be achieved by aggregating diverse, separate individual instances of intrastate activity where there is not a rational basis for finding sufficient connections among them."  Id. at 231.  Thus, "a local robbery spree can be within Congress's power only if it by itself has a substantial effect."  Id.  "Aggregation demands connection."  Id. at 232.

Elementary, my dear Watson

As the great Holmes (Sherlock) once said: "When you eliminate the impossible, whatever remains - however improbable - must be the truth."  "If one could aggregate robberies under the Hobbs Act to satisfy the constitutional demand of a substantial effect on commerce, there would be no reason one could not aggregate murders, or other felonies, to sustain general federal jurisdiction over all crimes."  Id. at 232.  However, we know that the Constitution does not confer upon Congress a general police power.  We know that Congress can not enact a federal murder statute covering garden variety murders.  Thus, if the premises, if accepted as true, would lead to a general police power, then those premises must be false.

Federal-State balance

"[W]e cannot invent rational bases that Congress might have identified."  Hickman at 236.  (citing United States v. Bass, 404 U.S. 336, 349 (1971) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state power balance."))

The Fifth Circuit does not say, although I do believe, that every time Congress enacts a criminal statue unrelated to its enumerated powers to define and punish crimes, it has altered the federal-state balance.

Other sources

SCOTUSblog has a description of Hickman (within the context of describing Judge Jones's judicial philosophy) here. has an article about the case here.

Misc. facts

The government argued that if the court struck down the Hobbs Act under its new level of review, then the federal arson statute would, 18 U.S.C. 844(I) would be unconstitutional.  Incidentally, in Jones v. United States, 529 U.S. 848 (2000), the Court interpreted the federal arson statute to not apply to the burning of a commercial residence valued at $87,000 because to do otherwise would make it constitutionally suspect.

Among the dissenters was Judge Edith Jones, certainly no friend of criminal defendants.  Also notable was that Michael R. Dreeben from DOJ argued the case for the government.  Mr. Dreeben also argued Sabri. v. United States (No. 03-44) for the government.  If I traded baseball cards, I'd be looking for a Dreeben rookie card.

Federalism and the Federal Prosecution of State and Local Corruption

 Professor Peter J. Henning has an excellent article (that does not read that much like a law review article) here.  The author's executive summary is below:

The Article considers the application of federalism to determine the constitutionality of federal statutes used to prosecute corruption of state and local officials. The question of the federal government's role in enforcing criminal laws against state and local officials has become especially relevant since the Supreme Court's decisions in United States v. Lopez and United States v. Morrison, which invalidated federal statutes because they exceeded congressional authority to regulate in areas already subject to the police power of the states. The Court relied in part on the principle of federalism embedded in the constitutional structure to limit Congress' power to regulate certain types of conduct, specifically crimes of violence.