541 U.S. 600 (2004)
Basim Omar Sabri is a real estate developer who proposed to build a hotel and retail structure in the city of Minneapolis.1 Sabri lacked confidence in his ability to adapt to the lawful administration of licensing and zoning laws and offered three separate bribes to city councilman Brian Herron between July 2 and July 17, 2001.2 Herron served as a member of the Board of Commissioners of the Minneapolis Community Development Agency, a public body created by the city council to fund housing and economic development within the city.3
Count 1 of the indictment charged Sabri with offering a $5,000 kickback for obtaining regulatory approvals.4 Count 2 alleged that Sabri offered Herron a $10,000 bribe to set up and attend a meeting with owners of land near the proposed site, at which Herron would threaten to use the city's eminent domain authority to seize their property if they were troublesome to Sabri.5 Count 3 charged that Sabri offered Herron a commission of 10 percent on some $800,000 in community economic development grants that Sabri sought from the city, the MCDA, and other sources.6
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.7 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 in connection with any business, transaction, or series of transactions involving anything of value of $5,000 or more.8 The organization or government must receive benefits in excess of $10,000 under a federal program in any one-year period.9
Before trial, Sabri moved to dismiss the indictment on the ground that the statute 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.10 The Government responded that even if an additional nexus were required, the evidence in this case would easily meet such a standard because Sabri's alleged actions related to federal dollars.11 The District Court agreed with Sabri that the law was facially invalid.12 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.13 Judge Bye dissented out of concern about the implications of the law for dual sovereignty.14 The Supreme Court granted certiorari to resolve a split among the Courts of Appeals over the need to require connection between forbidden conduct and federal funds.15
Whether 18 U.S.C. § 666(a)(2) is a valid exercise of congressional authority under Article I of the Constitution?16
Congress has authority under the Spending Clause to appropriate federal moneys to promote the general welfare.17 It has corresponding authority under the Necessary and Proper Clause to ensure that taxpayer dollars appropriated under that power are in fact spent for the general welfare and not frittered away in graft.18
Yes. The statute conditions criminal liability on the organization, government, or agency receiving benefits in excess of $10,000 under a federal program in any one-year period.19 In 2001 the City Council of Minneapolis administered about $29 million in federal funds paid to the city, and the MCDA received some $23 million of federal money.20 Sabri offered three separate bribes to city councilman Brian Herron, who served on the Board of Commissioners of the MCDA, in connection with transactions involving anything of value of $5,000 or more.21
The statute addresses bribery at the sources of bribes by rational means to safeguard the integrity of state, local, and tribal recipients of federal dollars.22
Section 666(a)(2) is a valid exercise of congressional authority under Article I of the Constitution.23
Related opinions on this issue
Justice Kennedy joins all but Part III of the Court's opinion.24 He does not join Part III but makes this comment with reference to it.25 The Court in Part III does not specifically question the practice followed in cases such as United States v. Lopez and United States v. Morrison.26
In those instances the Court did resolve the basic question whether Congress, in enacting the statutes challenged there, had exceeded its legislative power under the Constitution.27
Justice Thomas concurs in the judgment on the ground that the statute is a valid exercise of Congress's power to regulate commerce under this Court's precedent.28 He continues to doubt that the Court has correctly interpreted the Commerce Clause.29 Until this Court reconsiders its precedents, and because neither party requests us to do so here, our prior case law controls the outcome of this case.30
Justice Thomas writes further because he finds questionable the scope the Court gives to the Necessary and Proper Clause as applied to Congress's authority to spend.31 In particular, the 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's enumerated powers.32 This conclusion derives from the Court's characterization of McCulloch v. Maryland as having established a means-ends rationality test, a characterization that he is not certain is correct.33
Whether the statute must require proof of a connection between the federal funds and the alleged bribe as an element of liability?34
A federal criminal statute need not contain an explicit jurisdictional hook requiring proof of a connection between the forbidden conduct and federal funds as an element of the offense.35 There is no occasion even to consider the need for such a requirement where there is no reason to suspect that enforcement would extend beyond a legitimate interest cognizable under Article I.36
No. Although not every bribe or kickback offered or paid to agents of governments covered by the statute 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, this possibility does not portend enforcement beyond the scope of federal interest because money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.37 It is enough that the statute conditions the offense on a threshold amount of federal dollars defining the federal interest, such as the $29 million administered by the City Council of Minneapolis and the $23 million received by the MCDA.38
The statute need not require proof of a connection between the federal funds and the alleged bribe as an element of liability.39
Whether the statute is subject to facial challenge for failing to require proof of such a connection?40
No. Sabri was able to call his challenge a facial one in the strictest sense only by claiming that proof of the congressional jurisdictional basis must be an element of the statute.43 If that particular claim had been peeled away, it would have been obvious that the acts charged against Sabri himself, including the three bribes offered to Herron between July 2 and July 17, 2001, were well within the limits of legitimate congressional concern.44 Facial adjudication of this sort carries too much promise of premature interpretation of statutes on the basis of factually barebones records.45
The statute is not subject to facial challenge for failing to require proof of a connection between the federal funds and the alleged bribe.46