The New, New Federalism?
A Supreme Court Case to Be Decided This Terms Tests Whether Congress Can Use the Spending Power to Create a Broad Federal Crime

By ALAFAIR BURKE

Thursday, Dec. 11, 2003

This Term, the Supreme Court will decide the case of Sabri v. United States. Its decision may well be a landmark in the area of federalism.

The Rehnquist Court has proved that it is serious about limiting the authority of the federal government. However, so far the Court has done little to restrict the federal government's broad ability to act pursuant to its Spending Power.

The result is that what the federal government cannot do directly, it may be able to do with the Spending Power - incentivizing the states, with money grants, to do what it cannot constitutionally compel them to do. With Sabri, the Court appears set to limit Congress's exercise of the Spending Power, at least in the context of federal criminal law.

The Constitutional Power and Federal Statute Implicated In Sabri

The Constitution's Spending Power authorizes Congress to "provide for the . . . general Welfare of the United States." It is an immensely important Congressional power, as it authorizes virtually all expenditures of federal funds. In addition, in practice, it allows Congress to compel states to comply with federal conditions by using the "carrot" of federal funds, and the "stick" of their withdrawal (and possible civil penalties) if a state fails to comply.

At issue in Sabri, however, is a unique use of the Spending Power to impose criminal penalties rather than conditions on federal funds. The federal program bribery statute makes bribery relating to a transaction involving $5,000 or more a federal crime - as long as the recipient is the agent of an organization or government that receives federal benefits of more than $10,000 a year.

In other words, the statute says that an organization or government's acceptance of federal funds can expose its employees (or other agents) and the third parties who bribe them to federal criminal prosecution for bribery offenses that otherwise would be state law concerns.

Can the mere receipt of funding have this consequence of criminal exposure? Or is some further connection between the funds and the alleged act of bribery necessary? The Supreme Court has suggested that some nexus may be necessary. But so far, it has not directly resolved the issue - or indicated what nexus, exactly, is sufficient.

Prior Federal Bribery Statute Cases Have Avoided the Key Jurisdictional Issue

Since 1997, the Court has twice rejected the opportunity to answer the nexus question.

In Salinas v. United States, the Court upheld the conviction of a sheriff's deputy who accepted gifts in exchange for arranging "contact visits" for a federal prisoner. The deputy was the agent of a county whose jail was paid for in large part by federal funds - thus triggering the federal program bribery statute.

The Court rejected the defendant's argument that the government should have to prove that the bribe actually affected the expenditure of federal funds. However, it expressly declined to consider whether the federal statute required some other nexus between the bribe and the federal funds because, in the case before the court, a close connection existed: The bribes involved a federal prisoner bribing a deputy at the very jail that was the recipient of the federal funds.

Three years later, in United States v. Fischer, the Court held that a hospital receiving Medicare funds to treat patients received "benefits" within the meaning of the federal programs bribery statute. But it also hinted that there might be limitations to the reach of the statute - stating that the mere receipt of federal funds, standing alone, would not always be a sufficient federal nexus.

Indeed, to reason otherwise, the Court observed, "would turn almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance." The Court noted that other cases might require further limitations on the statute to ensure a federal interest in bribery cases, but, again, the Court did not specify what those limitations might be.

Why the Court Is Likely to Narrow the Reach of the Federal Programs Bribery Statute

The Court could dispose of Sabri - as it did Salinas and Fischer - without reaching the crucial nexus question. That is because the defendant's constitutional challenge to the statute is a facial one, a difficult claim to mount.

A facial challenge, unlike an as-applied challenge, requires the plaintiff to show that no set of circumstances exists under with the statute would be valid. Yet Salinas and Fischer have already shown that the statute can be applied constitutionally at least in some instances. Perhaps Sabri should have to wait until the prosecution presents its evidence, then show that the statute is unconstitutional as applied to him.

But the Court likely would not have agreed to hear the case - over the Government's objection - if it was not ready to make a definitive statement on the statute's reach. In formulating that statement, the tension will be between the apparent intent of Congress and the Court's federalist concerns.

The statute is broad: It criminalizes bribes in connection with "any" business or transaction of an organization, government, or agency that receives the statutory amount of federal benefits. (Emphasis added.) And the Court is likely to take the statute at its word - as the rules of statutory construction require, and as has been the Court's trend in the past.

Moreover, it seems plain that this breadth was intentional. At the time the statute was enacted, the lower courts were still jostling over the question of whether the general federal bribery statute could ever apply to local or private parties. The new federal programs bribery statute was intended to fill a gap in federal enforcement.

The problem is that a literal reading of the statute will collide with the Court's federalist concerns. The Court already remarked in Fischer that reliance upon federal funds is so commonplace that, unless confined in some way, the statute threatens to "turn almost every act of fraud or bribery into a federal offense" - a result the Court plainly sees as intolerable.

How the Court May Resolve The Nexus Question

So assuming the Court does reach the nexus question, what nexus will it find sufficient?

The Court could hold - as some scholars have suggested - that no nexus will suffice to save the statute, because the Spending Power is not a valid vehicle for creating federal crimes. But if that were the case, surely the Court would have given a hint to that effect in Salinas and Fischer. Instead, it hinted at a nexus requirement that would apply to limit the reach of a statute that was a valid exercise of the Spending Power.

It is more likely that the Court may take the same road it followed in its Commerce Clause cases, creating a new rule - like a nexus requirement - to avoid unrestricted federalization of crimes. Under the court's recent Commerce Clause cases, the Court has prevented Congress from federalizing crimes by requiring not only that the crimes affect commerce, but also that they do so "substantially" and are "economic."

Similarly, in Sabri, the Court might require a nexus not just between the bribe and an agent of an organization receiving federal funds, but also between the bribe and the federal spending program itself. (Such a nexus was present in both Salinas and Fischer, so this would be consistent with the Court's prior cases.)

For example, such a nexus would exist if a defendant paid a $5,000 bribe to a patrol officer to get out of a DUI, where the police department received the statutory amount of federal funding as part of an anti-drunk driving program. But the nexus would not exist, under the same circumstances, if the police department's only funding was for community policing or an anti-terror unit - programs that have nothing to do with the defendant's bribe.

If There Is a Criminal Nexus Requirement, Might There Be A Civil Counterpart?

If Sabri establishes a nexus requirement for the federal programs bribery statute, that will raise an even more important question: Should there be a similar nexus requirement for other spending power legislation?

Traditionally, the Court has dealt with Spending Clause questions much as it has dealt with contract law questions: The federal government provides money, and in exchange, the recipient agrees to abide by stipulated conditions. Contract partners can agree to almost any arrangement, as long as it isn't illegal or unconscionable. So if one views the federal government and the States as contract partners when the federal government exercises the Spending Power, then the federal government and the States can agree to just about any conditions on the funds, whether they are related to the federal spending program or not.

But looking at federal funding of State programs as simply a contract (or contract-like issue) arguably ignores the balance of power between federal and State governments, a balance of great concern to the current court. Perhaps the Court will limit the influence of these "contracts" by making sure the federal government's conditions have some nexus to its purpose in granting the funds.

To do so would ensure that the federal government's control over the States is issue-specific, and not total. States cannot afford to give up all federal funding. But they might sacrifice funding for a given program in exchange for freedom from federal conditions on that program.

Some spending legislation would fulfill any nexus requirement the Court might impose. For instance, the government uses the Spending Power to fund educational institutions with the obvious purpose of assisting education. A federal statute - Title IX - prohibits sex discrimination by educational programs receiving federal funds. The string attached to the funds bears a rational relationship to the government's purpose in spending the funds: Girls may not learn as well in an environment in which they are disfavored or harassed because they are girls.

But under a nexus requirement, some other conditions imposed on federal money might be invalidated. Consider, once again, the government's funding for education. The Solomon Amendment requires higher education institutions that receive federal funds to permit military recruiting on campus. But where is the nexus? Military recruiting does not aid education, in the way that, for instance, nondiscrimination rules, academic standards, or other conditions that affect the educational environment do.

Thus, if a nexus requirement were applied to all spending legislation, the Solomon Amendment might fail. Or, alternatively, it might be narrowed to a prior version of the Solomon Amendment, under which only Department of Defense funds could be withdrawn if military recruiters were barred.

And that narrowing might make a real-world difference. Many schools object to the Solomon Amendment's requirements, because allowing the military to recruit despite its "don't ask/ don't tell" policy violates the schools' own non-discrimination policies. But they cannot afford to give up all federal funding, so they continue to allow access. They might, however, be willing to forego Department of Defense funding alone in order to adhere to their commitment to nondiscrimination against gays and lesbians.

For all these reasons, Sabri is a case to watch. Not only may it herald new requirements for federal criminal offenses, it may also herald new requirements for all conditional federal spending.


Alafair Burke is an Associate Professor of Law at Hofstra Law School and was previously a prosecutor in Portland, Oregon. She is also the author of the mystery novel Judgment Calls.

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