Sabri v. United States – Oral Argument – March 03, 2004

Media for Sabri v. United States

Audio Transcription for Opinion Announcement – May 17, 2004 in Sabri v. United States

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William H. Rehnquist:

We’ll hear argument now in No. 03-44, Basim Omar Sabri v. the United States.

Mr. Birrell.

Andrew Stuart Birrell:

Mr. Chief Justice, and may it please the Court:

Section 666(a)(2) of title 18 is unconstitutional on its face because it never requires the jury to find an element that the Constitution always requires.

The statute’s unambiguous language allows a violation to be proved with entirely local conduct unrelated to Federal spending.

It thus intrudes deeply into an area the Court has recognized as one in which the States possess primary authority.

William H. Rehnquist:

Yet there’s no doubt, Mr. Birrell, is there, that in some circumstances the statute could be constitutionally applied?

Andrew Stuart Birrell:

There are no circumstances where 66(a)(2)… 666(a)(2) could be constitutionally applied, Your Honor, because the… because the statute never requires that the jury find a connection between the Federal spending and the offense conduct.

In the same way that there were possibly circumstances in Lopez where there might have been an adequate Federal connection, but because the jury is not required to find it, there are not any circumstances where the statute could be constitutional.

Antonin Scalia:

Why… why can’t it be constitutional under the Commerce Clause?

I know the Government doesn’t rely on that, but respondent can be supported here on any… any ground.

Why… why isn’t this a commercial transaction as… as, you know, our… our Commerce Clause law is?

So long as the transaction is commercial, we will assume it’s interstate commerce.

We’ll accept Congress’ judgment on that.

Why isn’t a commercial transaction when you bribe somebody?

Money for… for whatever the favor he does.

Andrew Stuart Birrell:

A couple things, Your Honor.

First of all, there is not a requirement that interstate commerce nexus be proved in the statute.

Antonin Scalia:

That’s not necessary.

So long as it’s commercial, our cases… our recent cases, say so long as it’s commercial, we’ll accept Congress’ judgment that it’s interstate.

Andrew Stuart Birrell:

Well, if Congress could create commerce… Commerce Clause jurisdiction everywhere that it could spend money, then–

Antonin Scalia:

No, no, not everywhere it could spend money.

Everywhere there is a commercial transaction.

One of our cases, for example, held that loan-sharking could be covered under the Commerce Clause because it was a commercial transaction, just as illegal as… as the… the bribery here, but if that could be covered by the Commerce Clause, why can’t this?

Andrew Stuart Birrell:

–Because without… without a showing that in each case there was a connection between interstate commerce and the transaction–

Antonin Scalia:

That’s not what our cases require.

Stephen G. Breyer:

Is that true of the drug statutes too?

Andrew Stuart Birrell:

–I’m sorry, Your Honor?

Stephen G. Breyer:

I mean, is it true whenever the Feds prosecute a person for a drug transaction, a jury has to determine there was a connection between these drugs and interstate commerce?

I’ve never heard of that requirement that… that the… that the jury would have to determine whatever facts are necessary for the statute to be constitutional even… even though that’s not an element of the offense.

Stephen G. Breyer:

Does that come out of a case or someplace?

Where does it come from?

Andrew Stuart Birrell:

Well, unless… unless there was an understanding that in every instance there was an effect on interstate commerce, then–

Stephen G. Breyer:

I mean, there might be instances where there’s no effect on interstate commerce, a home… you know, that… that will be an issue, homegrown marijuana.

So suppose there is some drug somewhere that has no effect.

It just didn’t.

There could be such a thing.

We can imagine it.

But does that mean in all these other cases that Congress… that the statute is void because the jury hasn’t found… I’d be repeating myself.

You answer.

Andrew Stuart Birrell:

–I… I think that it is different because the Commerce Clause is… is a regulatory power that permits Congress to regulate.

The Spending Clause power is… is a different sort of power.

It does not make that–

William H. Rehnquist:

And you say here Congress does not rely on the Spending Clause because it… it makes conduct criminal against an individual.

Andrew Stuart Birrell:

–I believe that Congress passed this law under the Spending Clause power.

I believe that’s what they intended to do.

All the–

Ruth Bader Ginsburg:

To spend for the general welfare was the basis in the court below and that combined with Necessary and Proper.

Andrew Stuart Birrell:

–That’s right, Your Honor.

Ruth Bader Ginsburg:

And that’s the position that was taken below, and I think most of the courts of appeals went on that same ground.

Andrew Stuart Birrell:

It’s my understanding that every court that has looked at this has said that Congress attempted to pass this… this particular statute under the Spending Clause.

Antonin Scalia:

Does… does it matter what they intended to pass it under?

I mean, if they have the power under another… under another head, would… would that not be enough?

Andrew Stuart Birrell:

That is true, Your Honor.

They could… they could… the statute could be upheld if Congress has the power to do it on any basis.

Ruth Bader Ginsburg:

The justification sounds like a Spending Clause justification, doesn’t it, that the… that they could not by a lesser means safeguard these Federal funds?

They tried narrower statutes and they didn’t work.

But what they were trying to do was to safeguard the integrity of the money that they were giving to these units by not having corrupt operations.

Isn’t that the case?

Andrew Stuart Birrell:

That… that’s what they said they were trying to do.

Andrew Stuart Birrell:

They were trying to regulate the integrity of… or… or police the integrity of organizations, agencies, and local and State governments that receive Federal funds.

That’s what they said they were trying to do.

Ruth Bader Ginsburg:

And why is that not satisfactory?

Andrew Stuart Birrell:

It’s not satisfactory because the statute doesn’t require any connection between the spending… Federal spending and the criminal conduct.

Anthony M. Kennedy:

Suppose that, just to use an analogy in the private sphere, a major corporation has a choice of two subcontractors and one subcontractor is known for engaging in lots of bribery and kickbacks, et cetera.

It’s confident that it’s got auditors that will be able to protect it in this instance.

But don’t you think if you were the CEO of the corporation, you’d rather prefer… rather deal with the subcontractor that was always clean?

It’s just a common sense business judgment, and that’s all the Government is doing here.

Andrew Stuart Birrell:

That’s not what the Government is doing here, Your Honor.

What the Government is doing here is to criminalize purely local conduct.

They’re criminalizing conduct that has no relation to any Federal spending.

Anthony M. Kennedy:

Well, it has relation because it wants to give its funds to those entities that it has confidence in with respect to all of their operations.

Andrew Stuart Birrell:

Well, it can make a choice about giving money or not without criminalizing conduct.

Congress has a number of ways that it can protect its Federal money.

It can protect it under Commerce Clause, Property Clause, not giving money, relying on the States to do… to do what they need to do, False Claims Act, conditional spending.

There’s–

Stephen G. Breyer:

They really say if we find a city council that takes money and… from us, the city council takes the money for us for some of its programs here.

There’s a corrupt city councilman.

We want to prosecute that person.

Why?

Because we want council… members of councils to know that we’re not going to tolerate corruption on behalf of the agency that’s giving out our money, whether in the particular instance it involved our money or not.

Now… now, why isn’t that sufficient connection?

Andrew Stuart Birrell:

–Because, Your Honor, there is… it may be that what… that is what the Government wants to do, but the question is whether the Government has the power to do that.

Stephen G. Breyer:

That’s true, but why doesn’t it?

Andrew Stuart Birrell:

It doesn’t have the power to do that because there’s not an element in the statute that requires there be a connection proved between the Federal spending and the wrongful conduct.

There may be one, but the jury is not required to find one.

Antonin Scalia:

Suppose the Federal Government had recast the statute and said no State can get… what’s the limit… $10,000 or more from the Federal Government unless it agrees to criminalize and impose the same penalty set forth here for any State corruption.

Would that be constitutional under the spending power?

It’s a condition to the grant.

Andrew Stuart Birrell:

It might be if–

Antonin Scalia:

It unquestionably would be, wouldn’t it?

It’s take it or leave it.

It’s–

Andrew Stuart Birrell:

–Assuming it wasn’t–

Antonin Scalia:

–it’s connected to the grant.

It has some remote connection to it.

That ought to be enough.

It just seems very strange to me that the Federal Government would be able to compel the State to impose such criminal penalties, but it cannot itself do so in connection with its spending.

Andrew Stuart Birrell:

–In… in Your Honor’s hypothetical, it might be coercive, unduly coercive, but other than that, I don’t see a problem with your hypothetical.

But there’s a… the… the Court… this… the Court has said that Congress can attach conditions to money provided that the four Dole factors are met.

But that is not what’s occurring here.

This Court has never said that Congress can use the Spending Clause power to create a criminal law statute.

And the danger with this is–

Sandra Day O’Connor:

Well, have we ever said it can’t?

Andrew Stuart Birrell:

–Well, only inferentially by Dole.

So the question is never square with–

Sandra Day O’Connor:

I think it’s kind of hard to read Dole for that proposition.

I may have missed your response to an earlier question.

You… you bring a facial challenge.

Why should we entertain a facial challenge?

What if we treated it as an as-applied challenge?

Do you say the Government cannot prove the elements that you think are necessary and thereby obtain a conviction?

Andrew Stuart Birrell:

–I… I say that we… we properly bring a facial challenge because the statute has no element requiring a connection between the Federal spending–

Sandra Day O’Connor:

I don’t… we don’t normally entertain facial challenges to statutes on a ground like that.

If it could be applied properly in an individual case, why would we entertain the broader challenge?

Andrew Stuart Birrell:

–This statute cannot be properly applied in any case.

It’s always unconstitutional because it lacks this connection element.

The statute is like–

Antonin Scalia:

You say because it lacks the requirement of a jury finding that there was the connection.

Andrew Stuart Birrell:

–Yes.

Andrew Stuart Birrell:

Well, there are two concepts, both that there’s not an element and that the jury doesn’t need to find it.

This statute is… is like the statute in Lopez.

William H. Rehnquist:

Well, what if… what if Congress had found that interstate commerce is involved here and did not provide for an individual jury finding in every case, would your argument be the same?

Andrew Stuart Birrell:

I don’t know, Your Honor, but Congress didn’t make that finding.

William H. Rehnquist:

It’s a very candid answer.

[Laughter]

Stephen G. Breyer:

Where… where does this… I mean, I’ve asked you this before, but I’m not sure.

Where does this jury finding thing come from?

It’s quite interesting.

But… but where… I mean, suppose that Congress passed a statute under the Patent Clause criminalizing certain conduct in respect to patent, and at the border there might be an… a question of whether it does or does not fall within the Patent Clause, that particular criminal behavior.

But I wouldn’t jump from that fact that you’d have a legal argument it’s outside the Patent Clause to the conclusion that therefore a jury has to find in every patent crime… a jury has to find that it is within the clause.

I’d have thought that was a question for the judge, not the jury.

So you’ve been emphasizing the contrary idea, and where do you get it from?

Andrew Stuart Birrell:

Well, in the… in the… in Your Honor’s Patent Clause hypothetical, that is a case where the Court would… or the Congress would have a… an enumerated regulatory power.

This is… this is a different thing.

Now–

Antonin Scalia:

Well, it has the Commerce Clause power.

I… I don’t understand your reliance on Lopez.

You just said just… just as Lopez was bad, whether or not there… Lopez was… was bad because it was not commerce, which is a judgment that this Court will make, whether it’s commerce or not, but once it is commerce, you’re in a different ball park.

Once it is commerce, we assume it’s interstate commerce, and that explains, you know, a whole bunch of our cases, such as our loan-sharking cases.

So Lopez has nothing to do with this case.

Lopez was not commerce.

Now, you… you may argue that… that bribery is not commerce although loan-sharking is, but I’m not sure how strong an argument that is.

Andrew Stuart Birrell:

–This case is like Lopez because the way I read Lopez… I mean, I understand your point about whether the conduct in Lopez was commerce conduct or not, but the way I’m reading Lopez is that the point is that when you’re on the… the fringes of the power, commerce power in that case, that there needs to be a… an element where the jury would find in each case that there was a connection between the exercised power of Congress and the conduct.

So in our case–

Antonin Scalia:

You think there is such a… such a connection with loan-sharking, good, old, local, you know, break-your-knees loan-sharking.

It’s not… not an interstate thing.

Andrew Stuart Birrell:

–Well, you’ve… you’ve told me that… that the Court has said that there is, and I… I accept that.

Anthony M. Kennedy:

That’s United States v. Perez.

We took a very expansive view of the Commerce Clause.

Anthony M. Kennedy:

And it was pretty much of a local transaction in… in the case, but the Court pointed out, you know, the ripple effect that all commercial transactions have.

Andrew Stuart Birrell:

Well, I would return to my point that I think that if the Congress can create Commerce Clause jurisdiction by spending money and Congress is entitled to spend money under the Constitution anywhere it deems it important for the general welfare, then what would naturally follow, it seems to me, is the general police power that the Constitution denies to the Federal Government.

It seems to me to be an inescapable chain of reasoning that will get us there.

Ruth Bader Ginsburg:

Have any local law enforcement offices complained about the Federal presence?

Andrew Stuart Birrell:

There… there’s nothing in the record about it, and I don’t have anything to offer outside the record of it.

But the… the question whether the local governments or government agents consent to an invasion of their area of authority is… is not dispositive.

Ruth Bader Ginsburg:

Question whether they regard it as an invasion of their authority or rather a legitimate endeavor by the Federal Government to protect its money.

Andrew Stuart Birrell:

Well, the… the statute doesn’t require the Federal Government to be acting to protect its money.

There… there is not any requirement that this money be the Government’s money.

For example, a private citizen offers a… a bribe to an agent.

It could be an agent of a… a corporation.

The offer is refused and 12 months later and for the first time more than $10,000 is given to an unrelated part of the agent’s business, the business the agent works for.

Then we now have a Federal crime committed.

There’s not any requirement in the statute that there be a connection between the Federal money and the offense conduct.

And furthermore, there’s not any requirement that the jury find it.

William H. Rehnquist:

Would you like to reserve the balance of your time, Mr. Birrell?

Andrew Stuart Birrell:

I will reserve the balance of my time, Your Honor.

William H. Rehnquist:

Very well.

We’ll hear from you, Mr. Dreeben.

Michael R. Dreeben:

Mr. Chief Justice, and may it please the Court:

The court of appeals correctly held that section 666 does not require proof of a Federal connection between the offense conduct and the federally funded program or Federal funds beyond that which the text of the statute itself requires.

William H. Rehnquist:

What… what is the basis, Mr. Dreeben?

Under what authority did Congress pass the statute?

Michael R. Dreeben:

Mr. Chief Justice, the Government has relied on Congress’ Necessary and Proper Clause authority to protect its Spending Clause expenditures and programs in this case.

I recognize that the Commerce Clause could also provide a basis for Congress to reach transactions involving criminal activity that affect commerce, but this Court in Salinas v. United States, in describing why section 666 was constitutional, as applied to the facts of that case, discussed that there was a legitimate Federal interest in protecting the particular program that corruption had affected in that case.

And the outgrowth of section 666 historically is of an effort by Congress to improve on previously deficient methods of protecting federally funded programs.

There were–

Antonin Scalia:

How far does that go?

What if… what if the Federal Government gave the State $1?

Could it make… could it make it… it a crime for any person to bribe any State officer anywhere in any program at all?

Antonin Scalia:

You know, the… really is… is there no end to the… to the scope of Congress’ purported protection of its funds?

Michael R. Dreeben:

–Justice Scalia, I think that this Court recognized, as recently as last terms in Jinks v. Richland County, that analysis under the Necessary and Proper Clause is deferential, tracing its roots back to M’Culloch v. Maryland, but there is an attenuation element to the analysis.

The law does need to be conducive and plainly adapted to the end that Congress is seeking to protect.

And in your example of $1 to a State and then protection through criminalizing the activities of hundreds of thousands of agents, there might be an attenuation problem.

Antonin Scalia:

Do you think $10,000 is… is clearly… what’s… what’s the… what’s the annual budget of New York State, do you know, or California?

Michael R. Dreeben:

Okay.

The annual budget of California is… at least in 1999, was $242 billion.

Antonin Scalia:

242 billion dollars.

Michael R. Dreeben:

And the Federal Government–

Antonin Scalia:

And because there’s $10,000 of Federal money, a drop of Federal money in this sea of… of California funds, the… the Federal Government can control the whole thing.

Michael R. Dreeben:

–But there’s not a drop.

There’s a virtual flood.

There was–

Antonin Scalia:

No, no.

But for the statute to apply, it takes only $10,000.

Michael R. Dreeben:

–It does, Justice Scalia, but Congress was well aware that every State is the recipient of billion upon billions of dollars in Federal aid.

There is substantial Federal money flowing to all of the States, and Congress could have dispensed with any dollar limitation whatsoever with respect to State aid and simply made a per se finding that Federal money is so infused into the State’s budgetary activities, Federal programs are so pervasive–

Antonin Scalia:

How much does it give California?

I just… just–

[Laughter]

Antonin Scalia:

You say it’s a big… a big figure.

I believe you, but–

Michael R. Dreeben:

–As of… as of 1999, California received $35,955,000,000.

John Paul Stevens:

–But why is California relevant?

This is Minnesota, isn’t it?

[Laughter]

Michael R. Dreeben:

Justice Stevens–

Antonin Scalia:

It was my fault.

I brought it up as a hypothetical.

Right?

[Laughter]

Michael R. Dreeben:

–But I have Minnesota too.

[Laughter]

Minnesota received… Minnesota’s budget was $36 billion, and it received 4,000,000,496 Federal dollars–

Stephen G. Breyer:

What about Massachusetts?

[Laughter]

Michael R. Dreeben:

–Justice Breyer, I only have 30 minutes and there are 50 States.

[Laughter]

Sandra Day O’Connor:

Mr. Dreeben, I am concerned about the breadth of your reliance on the Necessary and Proper Clause and the Spending Clause power here.

It seems to me that Federal funding extends to a huge range of activities, and why, under your theory, couldn’t Congress make… take over the entire criminal law scheme because it affects Federal taxpayers?

I mean, I don’t see any limit to your theory, and I’m curious why you’re so reluctant to rely on the Commerce Clause.

What’s going on in this case?

Michael R. Dreeben:

Justice O’Connor–

Sandra Day O’Connor:

Are you trying to overcome the problems of Lopez somehow, get a new thread of analysis that gets you out from under that?

What’s… what’s happening in this case?

Michael R. Dreeben:

–No.

I think there are ample avenues for the Federal Government to legislate, when things involve interstate commerce, without worrying about Lopez.

I believe the Court could uphold the statute as a regulation of interstate commerce, but it was clearly not designed with that in mind, and this Court did not so regard it, or at least didn’t articulate itself as regarding it that way in Salinas v. United States.

The problem that Congress was trying to solve was a very particularized problem, not the generalized problem of there is crime in America, therefore it will affect federally funded activities.

The problem that Congress was trying to solve was that it would give Federal money to particular entities to… to administer Federal programs, and there would be crime that had the potential to affect those Federal interests, but because of deficiencies or perceived deficiencies in prior statutory law, that crime could not be prosecuted.

In particular, with theft crimes there was a problem because once title had passed with the money to the local entity or State entity, some courts were saying that was no longer theft from the Federal Government and the theft statute didn’t apply.

With respect to the Federal bribery statute, 18 U.S.C. 201, lower courts had divided on whether State and local officials who were administering Federal programs could be held accountable as Federal officials.

And to remedy those deficiencies of prior law, section 666, as the court of appeals I think aptly described it, changed the enforcement paradigm, and it said that what we want now is not to focus on particular Federal monies that we have difficulty tracing into federally funded entities or who is a Federal official.

We want to make sure that the entities that we fund to carry out Federal assistance programs are clean, and the way that we are going to do that is to draft a prophylactic statute that ensures that all agents who are involved in the authority to conduct business on behalf of the entity are not engaged in significant acts of theft, embezzlement, or bribery.

It, therefore, included various limitations in section 666 that prevent it from being an all-encompassing, all-devouring statute that sweeps in all related crimes to the entities that are funded.

There’s a $5,000 limitation with respect to the transactions that are going to be influenced.

It’s not every traffic ticket that is issued by any State agency.

And there is a… a condition, of course, that there be $10,000 of Federal money going into the entity.

Of course, there are going to be cases under this statute where it will be difficult to articulate a clear–

Antonin Scalia:

$10,000 annually or is it just a… could it be a one-shot deal?

Michael R. Dreeben:

–It’s… could be a one-shot deal.

it’s a $10,000 grant during a 12-month period that spans the offense conduct in question.

And as I was saying–

Antonin Scalia:

If… if the State got… I mean, the way you read it, just because you got $10,000 last year doesn’t mean that next year you’re still subject to the act.

It has to be–

Michael R. Dreeben:

–That’s right.

Antonin Scalia:

–during the year.

Okay.

Michael R. Dreeben:

That’s right.

The offense conduct has to be–

Antonin Scalia:

It says in any 1-year period, but I… I assume that that means–

Michael R. Dreeben:

–Any 1-year period, but there’s another provision in the statute that makes clear that the period can include time before the offense conduct and time after the offense conduct, which is naturally read to mean that it has to span the offense conduct.

And that provision was designed to overcome the difficulty that State and local agents would be bribed for activities that they would have the power to engage in once the Federal money was awarded to their agency.

And in anticipation of Federal money coming into the entity, the officials could engaged in corrupt conduct.

Antonin Scalia:

–I assume this means that the Federal Government could also criminalize federally robbery or burglary committed against a private individual who has received Federal funds, who has received a Federal subsidy in one way or another.

Right?

Michael R. Dreeben:

Yes, Justice Scalia, within limits.

I think that there could be a… a point in time at which the Court might say that if the Federal Government passed a statute that said every robbery involves–

Antonin Scalia:

I mean, that’s probably all of us, you know.

Sandra Day O’Connor:

All welfare recipients–

Michael R. Dreeben:

–All money–

Sandra Day O’Connor:

–all Medicare beneficiaries, and so forth?

Michael R. Dreeben:

–Well, the Court… the Court long ago upheld in United States v. Hall a statute that prevented fraud and embezzlement directed at funds going to veterans.

So it has already upheld statutes in which the Federal interest in protecting the beneficiary’s use–

Antonin Scalia:

It was limited to the funds, though.

It didn’t say anything you… anybody who gets any money from a veteran is… is… you know.

Michael R. Dreeben:

–That’s–

Antonin Scalia:

And that’s what this says.

Anybody who… who bribes any State official, whether the Federal funds are at issue or not.

Michael R. Dreeben:

–Well, this… this statute, though, I think rests on a generalization that is less attenuated and more reasonable than statutes that would take the form of the statute Your Honor has described.

Michael R. Dreeben:

This statute basically says if you have corrupt officials in the entity that’s getting Federal money, we have reason to worry that you have poor internal controls, that you have a culture of corruption, that you have insufficient mechanisms to root it out, and that the officials that are engaged in corruption today with respect to State money may tomorrow be engaged in corruption with respect to Federal money.

Stephen G. Breyer:

So… so call… call this the clean funnel rationale.

The agencies are funnels funneling money to the… and say, look, we have a pretty strong rationale here.

We want clean funnels because a little bit of the money going through is Federal.

Take that as given.

If I were to say you’re right, what’s the standard where the Spending Clause is at issue?

What words would be used there?

And the reason that this is difficult at the moment for me is because this is not a condition imposed upon spending.

You’re not saying to the State, we’ll give you the transport money if you… this is really a Federal law protecting the… the spending.

You may be right in this case, but we’re going to have to say some kind of standard.

Should we say it’s just whatever would be necessary and proper to protect the object of the spending, which is quite far out because you can spend for things you don’t have otherwise have the power to do?

Or should we say something else, or should we say we don’t have to reach that here because if in fact the power would be there under the Commerce Clause anyway, that at least is good enough and isn’t a stretch of the Spending Clause where there’s a necessary and proper rationale?

What in your view is the proper way to write those words?

Michael R. Dreeben:

Justice Breyer, I think the most logical way to write this opinion is to rely on the test that this Court articulated in 1819 through Chief Justice Marshall with respect to the power under the Necessary and Proper Clause.

Here the enumerated power that’s being protected is the spending power.

The Necessary and Proper Clause was long ago construed to give Congress substantial deference to past laws so long as they are conducive to the end that Congress is trying to achieve and its legitimate.

Anthony M. Kennedy:

The… the M’Culloch language?

Let the end be legitimate–

Michael R. Dreeben:

That’s… that’s correct.

That’s correct, Justice Kennedy.

Anthony M. Kennedy:

–Suppose that… that to… to take the phrase, the clean funnel theory, we thought that that theory is best sustained under the Commerce Clause.

What would be the closest case that we could cite in support of our position if we were writing under the Commerce Clause?

Are there cases in which governmental entities and… and their… the integrity of the operations are protected under the Commerce Clause?

Have we ever talked about that?

Michael R. Dreeben:

I can’t think, off the top of my head, Justice Kennedy, of a Commerce Clause case that was specifically directed at governmental activity.

Of course, this statute is not specifically directed at governmental activity.

It’s directed at any fund recipient, be it private, Indian tribe, or governmental.

So the Court could rely on cases probably like Reno v. Condon in which the Court upheld a law that dealt with an item in commerce, be it in the hands of the Government or in hands of private parties.

And of course, United States v. Perez did uphold a very broad view of the Congress’ power to regulate transactional conduct.

Anthony M. Kennedy:

No governmental entities in that case, as I recall.

Michael R. Dreeben:

No governmental entities in… in Perez, but of course, this case doesn’t focus on governmental entities as such.

What it focuses on them is… it focuses on them in their capacity as administrators of funds that are paid out under Federal assistance programs.

It treats them identically to private entities that also receive Federal funds under Federal programs, which is strong evidence that what Congress had in mind here was ensuring that its purposes and goals under the Spending Clause aren’t frustrated by corruption within whatever entity it is that happens to be taking the funds to administer the program.

John Paul Stevens:

I think some of our–

Ruth Bader Ginsburg:

–Is the… is the Spending Clause… is it… is it something new or were the statutes that were inadequate, the predecessors of 666… what was the constitutional heading of authority that the predecessors of 666–

Michael R. Dreeben:

Justice Ginsburg, 18 U.S.C., section 641, which was the Federal theft statute, was really a protection of Federal property, and that probably could be justified under a variety of enumerated powers under Article I.

18 U.S.C., section 201 was the Federal bribery statute that primarily focuses on people who are Federal officials or who are designated to become Federal officials.

And this Court in United States v. Dixson interpreted the statute to cover State and local officials who were administering Federal programs because they were acting on behalf of the United States.

And with respect to that branch of section 201, although the Court did not address the constitutional question in Dixson, I think that the proper grant of authority to analyze it is the Necessary and Proper Clause as applied to the spending power because it, like section 666, criminalizes the activities of non-US persons because they are engaged in an activity that relates to federally funded programs.

So the theory of protecting through criminal law the misdeeds of agents that may impair Federal programs or impair Federal funds is not new.

What was new about section 666 was its removal of the impediments that Congress found in the prior law so that it could have an effective mechanism to ensure the integrity of its programs.

The case that is before the Court today is a facial challenge to section 666, arguing that it is always and everywhere unconstitutional.

That submission is impossible to reconcile with this Court’s decision in Salinas v. United States which specifically said that as applied to the conduct in that case, where there was a connection to a Federal program, the statute was constitutional as applied.

What that means is that the court of appeals was clearly correct in holding that section 666 is not facially unconstitutional.

It leaves open whether there is an as-applied constitutional challenge to section 666.

No such challenge was brought in this case, and the United States made a proffer to the district court indicating how the particular bribery in this case would have had an effect on Federal funds and Federal programs, making clear that no such as-applied challenge would have succeeded.

So the only way that petitioner can prevail in this case if this Court is prepared to say that notwithstanding its prior decision in Salinas, holding that section 666 was constitutional as applied, it now turns out that section 666 is facially unconstitutional and can never be applied to anyone anywhere.

We submit that that is incorrect.

Anthony M. Kennedy:

–If there were a nexus requirement that we wrote into the statute… the hypothetical gets a little murky at this point… would… would juries have to find that there was a nexus or could the judge instruct–

Michael R. Dreeben:

Judging from the way that this Court resolved the Salinas decision, Justice Kennedy, it would be a constitutional as-applied challenge to be resolved by the Court.

This Court in Salinas said that the statute was constitutional as applied and there had been no jury finding on any nexus requirement.

Anthony M. Kennedy:

–But in subsequent trials, if we found a nexus requirement, would the juries have to determine the nexus?

Michael R. Dreeben:

I don’t think that they would, Justice Kennedy.

Just as in a case like New York v. Ferber where the Court held that child pornography can be outlawed across the board, the statute is not–

William H. Rehnquist:

Well, but–

Michael R. Dreeben:

–It’s not invalid on overbreadth grounds.

William H. Rehnquist:

–Yes.

Michael R. Dreeben:

But the Court left open the possibility that there would be as-applied challenges, and it didn’t suggest that those as-applied constitutional challenges would raise jury issues.

They would instead raise issues of law for the–

William H. Rehnquist:

Well, but if Congress in its… in… in the statute says there must be some connection with interstate commerce, then certainly it’s a jury issue.

William H. Rehnquist:

And Justice Kennedy’s question, as I understood it, was that supposing the Court were to read in a nexus requirement, just exactly what Congress might have put in.

You say that would not be a jury question then.

Michael R. Dreeben:

–I am judging, Chief Justice Rehnquist, by the way that this Court resolved the legal issue in the Salinas case.

The Court would have two options open to it if it decided, contrary to our arguments today, to read in some sort of a nexus requirement.

It could do what the Second and Third Circuits have done, which is, we think incorrectly, superimpose on the statute as an implicit element that has no textual foundation some sort of a Federal nexus.

Now, if the Court did construe section 666 to require a Federal nexus, that’s clearly a jury issue under United States v. Gaudin.

Every element, be it implicit or explicit, has to be found by the jury.

But alternatively, I understood Justice Kennedy to be suggesting that there could be a constitutional overlay to ensure that there was no unconstitutional application of section 666, and if it’s treated as a pure constitutional question, then I think the better reading of this Court’s decisions is that it would be a question of law–

William H. Rehnquist:

Do you think this Court’s decisions have been consistent on that question?

[Laughter]

Michael R. Dreeben:

–I think they have been groping towards consistency.

[Laughter]

Antonin Scalia:

Let me write that down.

Groping towards–

[Laughter]

Antonin Scalia:

I can… I can use that in–

[Laughter]

Ruth Bader Ginsburg:

Mr. Dreeben, what answer do you give to the dissenting judge in the Eighth Circuit who said it is now a Federal crime for an auto mechanic to induce a public high school principal to hire him to teach shop class by offering free car repair?

Michael R. Dreeben:

Well, so long, Justice Ginsburg, as the statutory valuation elements are met, that the transaction involves $5,000 or more, which it probably would, given teacher salaries, then it would be covered by section 666, and the Government would have discretion to prosecute it.

I think what that illustrates is that the broad prophylactic approach that section 666 takes leads easily to the manufacturing of hypotheticals that seem attenuated from core Federal interests.

And the choice that Congress had before it was to draft a statute that would go to that degree of breadth but eliminate impediments that had previously hobbled the enforcement of a law or draft a statute which Congress believed was both under-inclusive and would put to the jury perhaps difficult and murky issues of whether there really was a Federal connection that justified application of the statute.

And let me give an example because it’s a very important, classic example of the way that we use section 666.

Suppose that there is a city council person or a mayor or some other official who has responsibilities for some respect… in some respects administering a Federal program or Federal funds, and he turns out to be engaged in corruption with respect to non-Federal monies and non-Federal programs.

The Government wants to prosecute him to ensure that he doesn’t begin to widen his field of operation and harm the Federal program, but in the facts that can actually be proved, there’s no connection between the Federal program and the offense conduct.

Conceivably could a statute be drafted that would allow the Government to say that’s the kind of Federal nexus that’s covered?

Certainly, but there are many, many hypotheticals where the potential injury to Federal interests is not necessarily going to be easy to articulate and prove to a jury.

As a matter of discretion, the United–

Antonin Scalia:

–Who… whose burden is it?

I mean, assume we accept your… your proposition that we should uphold it on its face, at least, and that future as-applied challenges will still be allowed.

Would it be the burden of the defendant to establish that… that this goes too far, that this is not reasonable protection of the Federal monetary interest?

Michael R. Dreeben:

Yes, Justice Scalia.

If it’s a question of law, is the statute unconstitutional as applied, then the defendant should have the burden of establishing that.

But I understood Justice Ginsburg’s hypothetical to raise the question what if Congress had drafted a narrower statute that had some sort of an offense nexus element.

Then we’d have to prove it up.

The United States Attorneys Manual does direct prosecutors to use 666 in cases where there’s a substantial and identifiable Federal interest.

So what you have here is a combination of Congress saying we need a statute that’s adequate to vindicate Federal interests and prior efforts to draft narrower ones have frustrated that goal.

We’re going to draft a broader statute.

And then the Federal executive branch uses its discretion to prosecute cases that do, indeed, pose a real threat to Federal interests.

Now, that’s as a matter of discretion.

It’s not as a matter of constitutional law, and it’s not as a matter of what the statute provides.

William H. Rehnquist:

Well, then why should we take that into consideration deciding the question before us?

Michael R. Dreeben:

It’s not relevant, strictly speaking, to the constitutional question.

What it is relevant to is why it was rational for Congress to draft a somewhat broader statute without fearing that, by virtue of having given the executive branch this power, State criminal law would be thoroughly swamped, I believe as one of the dissenting opinions said.

William H. Rehnquist:

But what if you have a new executive coming in who is really hot on this subject and says we want to prosecute every case we can under it?

Michael R. Dreeben:

Then I’ll have to withdraw this statement.

[Laughter]

Antonin Scalia:

Or an even more realistic hypothetical is the United States Attorney in Chicago or New York, who are not always, shall I say, responsive to the directives of central justice, bringing a prosecution against a political opponent that has really no connection with a Federal interest.

That might happen.

Michael R. Dreeben:

Justice Scalia, I often say that the only way that we get uniformity in Federal criminal law enforcement is from a decision by this Court.

If the Court has no further questions.

William H. Rehnquist:

Thank you, Mr. Dreeben.

Michael R. Dreeben:

Thank you.

William H. Rehnquist:

Mr. Birrell, you have 12 minutes remaining.

Andrew Stuart Birrell:

Thank you, Your Honor.

Turning first to the discussion about Salinas, Salinas did not decide the issue presented in this case.

The constitutionality of the statute was not before the Court in Salinas.

Salinas was a question of statutory interpretation.

What the Court appeared to do was to conduct a harmless error review because the constitutionality had not been raised in the briefs, was not in the cert petition, and it does not impede our facial challenge.

I think that this… this–

Antonin Scalia:

You… you think Salinas, had the constitutional been raised, would have… should have come out the other way.

Andrew Stuart Birrell:

–I think that if the constitutional issue had been raised in Salinas, it would have come out the other way, yes.

I think as well that if I could direct the Court to page 34 of our brief, that this will respond to the discussion about the element, that this is an analysis about the element in Lopez.

We would submit the same would apply here.

There are many noncommercial applications of this statute, for example, bribery regarding civil rights law.

So I don’t think the Commerce Clause is… is the answer.

Furthermore, in… 666(a)(2) doesn’t even require any actual recipient corruption because the third party to the funding contract under (a)(2) can… can offer a bribe to an absolutely incorruptible official and yet still be charged with a Federal crime.

The… the overreaching question in this case, Your Honors, is that Federal power must have judicially enforceable limits and this statute ignores them and is unconstitutional in every instance.

Thank you.

William H. Rehnquist:

Thank you, Mr. Birrell.

The case is submitted.