OPINION OF THE COURT
SABRI V. UNITED STATES
541 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 03-44
BASIM OMAR SABRI, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the eighth circuit
[May 17, 2004]
Justice Souter delivered the
opinion of the Court.
The question is whether 18 U.
S. C. §666(a)(2), proscribing bribery of state, local, and
tribal officials of entities that receive at least $10,000 in
federal funds, is a valid exercise of congressional authority under
Article I of the Constitution. We hold that it is.
I
Petitioner Basim Omar Sabri is a
real estate developer who proposed to build a hotel and retail
structure in the city of Minneapolis. Sabri lacked confidence,
however, in his ability to adapt to the lawful administration of
licensing and zoning laws, and offered three separate bribes to a
city councilman, Brian Herron, according to the grand jury
indictment that gave rise to this case. At the time the bribes were
allegedly offered (between July 2, 2001, and July 17, 2001), Herron
served as a member of the Board of Commissioners of the Minneapolis
Community Development Agency (MCDA), a public body created by the
city council to fund housing and economic development within the
city. App. to Pet. for Cert. A–64 to A–65.
Count 1 of the indictment charged
Sabri with offering a $5,000 kickback for obtaining various
regulatory approvals,
ibid., and according to Count 2,
Sabri offered Herron a $10,000 bribe to set up and attend a meeting
with owners of land near the site Sabri had in mind, at which
Herron would threaten to use the city’s eminent domain authority to
seize their property if they were troublesome to Sabri,
id., at A–65 to A–66. Count 3 alleged that Sabri offered
Herron a commission of 10% on some $800,000 in community economic
development grants that Sabri sought from the city, the MCDA, and
other sources.
Id., at A–66.
The charges were brought under 18 U.
S. C. §666(a)(2), which imposes federal criminal penalties on
anyone who
“corruptly gives, offers, or agrees to give
anything of value to any person, with intent to influence or reward
an agent of an organization or of a State, local or Indian tribal
government, or any agency thereof, in connection with any business,
transaction, or series of transactions of such organization,
government, or agency involving anything of value of $5,000 or
more.”
For criminal liability to lie, the statute requires
that
“the organization, government, or agency receiv[e],
in any one year period, benefits in excess of $10,000 under a
Federal program involving a grant, contract, subsidy, loan,
guarantee, insurance, or other form of Federal assistance.”
§666(b).
In 2001, the City Council of Minneapolis
administered about $29 million in federal funds paid to the city,
and in the same period, the MCDA received some $23 million of
federal money. App to Pet. for Cert. A–63.
Before trial, Sabri moved to dismiss the
indictment on the ground that §666(a)(2) is unconstitutional on its
face for failure to require proof of a connection between the
federal funds and the alleged bribe, as an element of liability.
App. A–4. The Government responded that “even if an additional
nexus between the bribery conduct and the federal funds is
required, the evidence in this case will easily meet such a
standard” because Sabri’s alleged actions related to federal
dollars.
Id., at A–6. Although Sabri did not contradict
this factual claim, the District Court agreed with him that the law
was facially invalid. A divided panel of the Eighth Circuit
reversed, holding that there was nothing fatal in the absence of an
express requirement to prove some connection between a given bribe
and federally pedigreed dollars, and that the statute was
constitutional under the Necessary and Proper Clause in serving the
objects of the congressional spending power. 326 F. 3d 937
(2003). Judge Bye dissented out of concern about the implications
of the law for dual sovereignty.
Id., at 953–957.
We granted certiorari, 540 U. S. ___ (2003),
to resolve a split among the Courts of Appeals over the need to
require connection between forbidden conduct and federal funds;
compare,
e.g.,
United States v
. Grossi,
143 F. 3d 348 (CA7 1998) (no nexus requirement), and
United States v
. Lipscomb, 299 F. 3d 303
(CA5 2002) (same), with
United States v
. Zwick,
199 F. 3d 672 (CA3 1999) (nexus requirement), and
United
States v
. Santopietro, 166 F. 3d 88 (CA2 1999)
(same). We now affirm.
II
Sabri raises what he calls a
facial challenge to §666(a)(2): the law can never be applied
constitutionally because it fails to require proof of any
connection between a bribe or kickback and some federal money. It
is fatal, as he sees it, that the statute does not make the link an
element of the crime, to be charged in the indictment and
demonstrated beyond a reasonable doubt. Thus, Sabri claims his
attack meets the demanding standard set out in
United
States v.
Salerno, 481 U. S. 739, 745
(1987), since he says no prosecution can satisfy the Constitution
under this statute, owing to its failure to require proof that its
particular application falls within Congress’s jurisdiction to
legislate. See Tr. of Oral Arg. 12 (“This statute cannot be
properly applied in any case”).
We can readily dispose of this
position that, to qualify as a valid exercise of Article I power,
the statute must require proof of connection with federal money as
an element of the offense. We simply do not presume the
unconstitutionality of federal criminal statutes lacking explicit
provision of a jurisdictional hook, and there is no occasion even
to consider the need for such a requirement where there is no
reason to suspect that enforcement of a criminal statute would
extend beyond a legitimate interest cognizable under Article I,
§8.
Congress has authority under the Spending
Clause to appropriate federal monies to promote the general
welfare, Art. I, §8, cl. 1, and it has corresponding
authority under the Necessary and Proper Clause, Art. I, §8,
cl. 18, 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. See generally
McCulloch v.
Maryland, 4 Wheat. 316 (1819) (establishing review for
means-ends rationality under the Necessary and Proper Clause). See
also
Hodel v.
Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S. 264, 276
(1981) (same);
Hanna v.
Plumer, 380 U. S. 460, 472
(1965) (same). Congress does not have to sit by and accept the risk
of operations thwarted by local and state improbity. See,
e.g.,
McCulloch,
supra, at 417 (power to
“ ‘establish post-offices and post-roads’ ” entails
authority to “punish those who steal letters”). 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. Cf.
Salinas
v.
United States, 522 U. S. 52, 56–57
(1997) (The “expansive, unqualified” language of the statute “does
not support the interpretation that federal funds must be affected
to violate §666(a)(1)(B)”). 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. Liquidity is not a financial
term for nothing; money can be drained off here because a federal
grant is pouring in there. And officials are not any the less
threatening to the objects behind federal spending just because
they may accept general retainers. See
Westfall v.
United States, 274 U. S. 256, 259
(1927) (majority opinion by Holmes, J.) (upholding federal law
criminalizing fraud on a state bank member of federal system, even
where federal funds not directly implicated). It is certainly
enough that the statutes condition the offense on a threshold
amount of federal dollars defining the federal interest, such as
that provided here, and on a bribe that goes well beyond liquor and
cigars.
For those of us who accept help from
legislative history, it is worth noting that the legislative record
confirms that §666(a)(2) is an instance of necessary and proper
legislation. The design was generally to “protect the integrity of
the vast sums of money distributed through Federal programs from
theft, fraud, and undue influence by bribery,” see S. Rep. No.
98–225, p. 370 (1983), in contrast to prior federal law
affording only two limited opportunities to prosecute such threats
to the federal interest: 18 U. S. C. §641, the federal theft
statute, and §201, the federal bribery law. Those laws had proven
inadequate to the task. The former went only to outright theft of
unadulterated federal funds, and prior to this Court’s opinion in
Dixson v.
United States, 465 U. S. 482 (1984),
which came after passage of §666, the bribery statute had been
interpreted by lower courts to bar prosecution of bribes directed
at state and local officials. See,
e.g.,
United
States v
. Del Toro, 513 F. 2d 656, 661–663 (CA2
1975) (overturning federal bribery conviction); see generally
Salinas, 522 U. S., at 58–59 (recounting the limitations
of the preexisting statutory framework). Thus we said that §666
“was designed to extend federal bribery prohibitions to bribes
offered to state and local officials employed by agencies receiving
federal funds,”
id., at 58, thereby filling the regulatory
gaps. Congress’s decision to enact §666 only after other
legislation had failed to protect federal interests is further
indication that it was acting within the ambit of the Necessary and
Proper Clause.
Petitioner presses two more particular
arguments against the constitutionality of §666(a)(2), neither of
which helps him. First, he says that §666 is all of a piece with
the legislation that a majority of this Court held to exceed
Congress’s authority under the Commerce Clause in
United
States v.
Lopez, 514 U. S. 549 (1995),
and
United States v.
Morrison, 529 U. S. 598 (2000).
But these precedents do not control here. In
Lopez and
Morrison, the Court struck down federal statutes
regulating gun possession near schools and gender-motivated
violence, respectively, because it found the effects of those
activities on interstate commerce insufficiently robust. The Court
emphasized the noneconomic nature of the regulated conduct,
commenting on the law at issue in
Lopez, for example,
“that by its terms [it] has nothing to do with ‘commerce’ or any
sort of economic enterprise, however broadly one might define those
terms.” 514 U. S., at 561. The Court rejected the Government’s
contentions that the gun law was valid Commerce Clause legislation
because guns near schools ultimately bore on social prosperity and
productivity, reasoning that on that logic, Commerce Clause
authority would effectively know no limit. Cf.
Morrison,
supra, at 615–616 (rejecting comparable congressional
justification for Violence Against Women Act of 1994). In order to
uphold the legislation, the Court concluded, it would be necessary
“to pile inference upon inference in a manner that would bid fair
to convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the States.”
Lopez, 514 U. S., at 567.
No piling is needed here to show that Congress
was within its prerogative to protect spending objects from the
menace of local administrators on the take. The power to keep a
watchful eye on expenditures and on the reliability of those who
use public money is bound up with congressional authority to spend
in the first place, and Sabri would be hard pressed to claim, in
the words of the
Lopez Court, that §666(a)(2) “has nothing
to do with” the congressional spending power.
Id., at
561.
Sabri next argues that §666(a)(2) amounts to
an unduly coercive, and impermissibly sweeping, condition on the
grant of federal funds as judged under the criterion applied in
South Dakota v.
Dole, 483 U. S. 203 (1987).
This is not so. Section 666(a)(2) is authority to bring federal
power to bear directly on individuals who convert public spending
into unearned private gain, not a means for bringing federal
economic might to bear on a State’s own choices of public
policy.*
III
We add an afterword on Sabri’s
technique for challenging his indictment by facial attack on the
underlying statute, and begin by recalling that facial challenges
are best when infrequent. See,
e.g.,
United
States v.
Raines, 362 U. S. 17, 22 (1960)
(laws should not be invalidated by “reference to hypothetical
cases”);
Yazoo & Mississippi Valley R. Co. v.
Jackson Vinegar Co., 226 U. S. 217, 219–220
(1912) (same). Although passing on the validity of a law wholesale
may be efficient in the abstract, any gain is often offset by
losing the lessons taught by the particular, to which common law
method normally looks. Facial adjudication carries too much promise
of “premature interpretatio[n] of statutes” on the basis of
factually bare-bones records.
Raines,
supra, at
22.
As exemplified here, facial
challenge can carry a further risk that a skeptical approach by
district courts may avoid. Sabri was able to call his challenge a
facial one in the strictest sense of saying that no application of
the statute could be constitutional, only by claiming that proof of
the congressional jurisdictional basis must be an element of the
statute, a position that is of course not generally true at all. If
that particular claim had been peeled away, it would have been
obvious that the acts charged against Sabri himself were well
within the limits of legitimate congressional concern. It would
have been correspondingly clear that if Sabri was making any
substantive constitutional claim, it had to be seen as an
overbreadth challenge; the most he could say was that the statute
could not be enforced against him, because it could not be enforced
against someone else whose behavior would be outside the scope of
Congress’s Article I authority to legislate.
Facial challenges of this sort are especially
to be discouraged. Not only do they invite judgments on fact-poor
records, but they entail a further departure from the norms of
adjudication in federal courts: overbreadth challenges call for
relaxing familiar requirements of standing, to allow a
determination that the law would be unconstitutionally applied to
different parties and different circumstances from those at hand.
See,
e.g.,
Chicago v.
Morales, 527 U. S. 41, 55–56,
n. 22 (1999) (plurality opinion). Accordingly, we have
recognized the validity of facial attacks alleging overbreadth
(though not necessarily using that term) in relatively few
settings, and, generally, on the strength of specific reasons
weighty enough to overcome our well-founded reticence. See,
e.g.,
Broadrick v.
Oklahoma, 413 U. S. 601 (1973)
(free speech);
Aptheker v.
Secretary of
State, 378
U. S. 500 (1964) (right to travel);
Stenberg v.
Carhart, 530 U. S. 914, 938–946
(2000) (abortion);
City of Boerne v.
Flores, 521 U. S. 507, 532–535
(1997) (legislation under §5 of the Fourteenth Amendment). See
generally Fallon, As-Applied and Facial Challenges and Third-Party
Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing
role of various doctrinal tests in determining viability of facial
attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24
(observing that overbreadth is a function of substantive First
Amendment law). Outside these limited settings, and absent a good
reason, we do not extend an invitation to bring overbreadth
claims.
IV
We remand for proceedings
consistent with this opinion. The judgment of the Court of Appeals
for the Eighth Circuit is
Affirmed.
* In enacting §666, Congress addressed a
legitimate federal concern by licensing federal prosecution in an
area historically of state concern. In upholding the
constitutionality of the law, we mean to express no view as to its
soundness as a policy matter.
Comments
Be the first to comment
Leave a Comment