Congressional Power and the "Necessary and Proper" Clause

In recent years, federalism issues have focused primarily on Congressional power under the Commerce Clause and the Fourteenth Amendment and issues relating to sovereign immunity of the states.

But another line of cases raise issues of Congressional power to legislate under the "Necessary and Proper" Clause of the Constitution, Art. I, § 8, cl. 18. It provides that "Congress shall have Power…to make all Laws which shall be necessary and proper for carrying into Execution " all the powers vested in the Government of the United States. The Clause itself is not an independent grant of power but rather authority to pass laws to carry out powers otherwise granted to the federal government by the Constitution. The Clause is frequently used in conjunction with Spending Power legislation.

Congress passed legislation making it a crime to bribe any agent of a state or local government if the public entity receives at least $10,000 in a year from the federal government. 18 U.S.C. § 666(a)(2). As interpreted by the Eighth Circuit in United States v. Sabri, 2003 WL 17922150 (8th Cir. Apr. 7, 2003), there is no requirement in the statute that there be a connection between the offensive conduct and federal funds. Thus, bribery of a city official in a local zoning application which involves no federal funds is a federal offense if the city receives $10,000 in federal funding for any purpose in the year in question.

The defendant in a bribery case asserted that Congress had no power to enact the statute absent a nexus between the criminal activity and federal funds. The 8th Circuit first finds that the statute is not a condition on the receipt of federal funds, providing federal power under the Spending Clause. The statute places no obligation on the recipient of federal funds, but rather regulates the conduct of third parties receiving no federal funds.

However, the court then holds that the statute is a necessary and proper exercise of Congressional power under the Spending Clause. The Necessary and Proper Clause enables Congress to enact all laws which are convenient to the exercise of disbursing federal funds. The court holds that Congress has power to enact criminal penalties under the Clause. It then holds that the bribery legislation is "rationally related to achieving the efficacious expenditure of federal funds and is, therefore, a law necessary and proper to the execution of the spending power.

Congress has determined that the most effective way to protect the integrity of federal funds is to police the integrity of the agencies administering those funds. The maladministration of funds in one part of an agency can affect the allocation of federal funds throughout an agency. The statute addresses this problem by policing the integrity of the entire organization receiving federal benefits. If the statute was unconstitutional, the protection of federal funds would be left to the whim of state and local officials, perhaps the very same officials who have accepted a bribe. The Ninth Circuit reached the same result in United States v. Bynum, 2003 WL 1983790 (9th Cir. Apr. 30, 2003)

Judge Bye dissented in Sabri. Relying on federalism concepts in the Supreme Court decisions on sovereign immunity and the Tenth Amendment, he draws a distinction between necessary laws and proper ones, and finds the bribery statute not "proper." He asserts a law is "proper" if it respects both the Constitution's limits on federal power and its grants of power to the states and the people. The statute intrudes upon state and local concerns by federalizing anti-corruption law, which is traditionally the domain of state and local legislation. The lack of any connection between the bribe and federal funds makes all too real the risk that federal anti-corruption efforts will replace state and local efforts to combat bribery. He compares the majority view to the "unbounded" extent of federal power under the Commerce Clause prior to Lopez and Morrison.

Judge Bye's approach would give judges carte blanche to nullify a Congressional enactment by finding it to intrude on ill-defined state sovereignty issues, even though the law is necessary to the Congressional purpose.