Wednesday, October 15, 2003

Another interesting grant of certiorari.

Congress is fond of using its powers under the Taxing and Spending Clause to enact legislation that might be at least questionable if it was passed as a straight-up regulation. Think, for example of EMTALA (imposing duty to screen and treat on hospitals as a condition of their receipt of federal health care funds) or Baby Doe (imposing enforcement obligations on states to ensure that infants receive "medically indicated treatment" as a condition of the receipt of federal funds for CPS programs). As a general proposition, Congress enjoys roughly the same freedom to legislate to promote the general welfare of the public as is enjoyed by state and local officials who exercise comparably broad broad "police powers" when they legislate.

Yesterday, SCOTUS granted certiorari in Sabri v. United States, No. 03-44. In the case, a developer was charged with bribing a city council member in Minneapolis. The federal statute under which he was charged makes it a crime to pay a bribe of at least $5,000 to an official whose agency receives at least $10,000 in federal money. There's no requirement that the bribe be related to the federal program for which federal funds are received by the official's agency. Linda Greenhouse's description of the case in today's N.Y. Times includes the suggestion that this case could signal the Court's interest in cutting back on Congress' powers under the Spending Clause, just as it has been doing in connection with the Commerce Clause over the past 5 years. In his blawg, Prof. Eric Muller (passed along to members of the Con Law Prof listserv by Eugene Volokh) wonders why an exercise of Congress' Spending Clause powers should be suspect when a ban on bribes over $5,000 could have been enacted pursuant to Congress' power to regulate interstate commerce. Fair question. (The district court dismissed the charges but the 8th Cir. reinstated them as a constitutional exercise of Congress' powers under the "necessary and proper" clause. The 8th Cir. case -- U.S. v. Basim Omar Sabri -- is available for free here.)
posted by tommayo, 1:54 PM

Health care law (including public health law, medical ethics, and life sciences), with digressions into constitutional law, poetry, and other things that matter