Three Supreme Court Cases Upholding Congressional Power

In three opinions this week in different areas, the Supreme Court has upheld federal statutes against claims that the statutes exceeded Congress’s legislative power under the Constitution.

Whether these decisions signal greater deference toward Congress will undoubtedly be the source of debate. What seems apparent is that Congress’s power to enact broad protections for individuals will likely remain under siege, even if the Court will uphold more narrow measures.

In Tennessee v. Lane, 2004 WL 1085482 (May 17, 2004), the Supreme Court held that Title II of the Americans with Disabilities Act, as applied to the class of cases implicating judicial services, was within Congress’s 14th Amendment power to abrogate state sovereign immunity. 

In Tennessee Student Assistance Corp. v. Hood, 2004 WL 1085610 (May 17, 2004), the Court held 7-2 that the bankruptcy provision allowing discharge of state student loans does not violate state sovereign immunity because bankruptcy is an in rem proceeding over the debtor’s estate and not an in personam suit against the state. This analysis obviated the need for a ruling on the question raised by petitioner, whether Congress has power under the Article I Bankruptcy Clause of the Constitution to abrogate state sovereign immunity. The reliance on the in rem nature of bankruptcy cases, not transferrable to many other classes of cases, gave the Court a way to uphold uniform application of bankruptcy rules to state debts without undercutting the ruling of Seminole Tribe v. Florida, 517 U.S. 44 (1996), that Congress lacks authority under Article I to abrogate state sovereign immunity.

Finally, in Sabri v. United States, 2004 WL 1085233 (May 17, 2004), the Court held that Congress had the power under the Necessary and Proper Clause to create a federal crime of bribing an official of a state or local entity that receives as least $10,000 in federal funds, even if there is no connection between the bribe and the federal money. This decision deserves a few more words, as it is interesting both for the scope of the Necessary and Proper Clause and for the discussion of as applied versus facial challenges.

In Sabri, petitioner Sabri claimed that a federal bribery statute was overbroad and beyond Congress’s Article I powers because it did not require a connection between the bribery and federal funds, even if there was such a connection in his case. What is interesting is the Court’s broad language to describe Congress’s power under the Necessary and Proper Clause: the bribery statute was a “rational means” of protecting federal monies. Although not every bribe will have a direct connection to federal funds, “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.... [M]oney can be drained off here because a federal grant is pouring in there.” The Court rejected Sabri’s analogies to the decisions restricting Congress’s Commerce Clause powers in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). “Sabri would be hard pressed to claim ... that [the bribery statute] ‘has nothing to do with’ the congressional spending power.” (Quoting Lopez).

Justice Thomas concurred but wrote separately to criticize the Court’s reasoning. “[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 power.” Rather, there must be “some obvious, simple and direct relation between the statute and the enumerated power.”

The Court does appear to be more willing here to accept an attenuated link between federal spending and the bribery than it was in Lopez and Morrison to accept a link between crime and education, on the one hand, and interstate commerce. It is difficult to tell whether the Court is indeed adopting a more lax approach to the Necessary and Proper Clause, or more likely, is simply more deferential in the case of a criminal statute, especially one that has in its text a jurisdictional link to federal interests. Nevertheless, it is noteworthy that the Court did not use the Sabri case as an opportunity to begin restricting Congress’ power under the Necessary and Proper Clause, as some observers had expected.

The Sabri decision (written by Justice Stevens) is also interesting for the dicta – not joined by Justices Scalia or Kennedy – on Sabri’s facial challenge to the statute. “Facial challenges of this sort are especially to be discouraged.... [W]e have recognized the validity of facial attacks alleging overbreadth (although 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.” As examples of those rare settings where facial challenges are appropriate, the Court listed free speech, abortion and – ominously – “legislation under § 5 of the Fourteenth Amendment” (citing City of Boerne v. Flores521 U.S. 507 (1997). Yet the Court did not mention the fact that the very same day, in Tennessee v. Lane, it had refused a facial challenge to the ADA, ruling instead held that the statute was appropriate 14th Amendment legislation as applied to cases implicating access to judicial services.

These three decisions taken together appear to show that at least five justices are uncomfortable about going too far with the Supreme Court’s recent assault on congressional power and are willing to uphold federal statutes where they can.