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 §666(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?