Oral arguments in Spending Power case

[Rick Garnett]

Dear all,

A few months ago, we had a discussion on this list about the Court's 
decision to grant cert. in the Sabri case, which involves the application 
and validity of Section 666, the federal-program-bribery statute.

I have seen no news coverage of the arguments, but they were heard 
yesterday. Friends of mine who were there tell me that the government's 
arguments were excellent, and that no Justice indicated any real concern 
about the statute's validity, or about the 
"necessary-and-proper-plus-spending-power" theory employed by the Court of 
Appeals. And, wholly apart from that theory, it sounds like the Justices 
were also comfortable with the idea that the Commerce Clause provides 
another solid constitutional basis for the law.

Evidently, Justice Scalia (!) said something along these lines: "Since 
Congress could condition federal-program monies on the enactment and 
enforcement by the States of bribery statutes *like* this one, then doesn't 
it follow that Congress can enact and enforce *this* one?" This seems a 
strikingly un-Justice-Scalia-like position, so maybe my information is wrong.
I'd welcome more reports, on or off list, if anyone has them.

best wishes,

Rick Garnett