SABRI v. UNITED STATES

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600 OCTOBER TERM, 2003
Syllabus
SABRI v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 03–44. Argued March 3, 2004—Decided May 17, 2004
After petitioner Sabri offered three separate bribes to a Minneapolis coun-
cilman to facilitate construction in the city, Sabri was charged with vio-
lating 18 U. S. C. § 666(a)(2), which proscribes bribery of state and local
officials of entities, such as Minneapolis, that receive at least $10,000 in
federal funds. Before trial, Sabri moved to dismiss the indictment on
the ground that § 666(a)(2) 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. The District Court agreed, but the
Eighth Circuit reversed, holding that the absence of such an express
requirement was not fatal, and that the statute was constitutional under
the Constitution’s Necessary and Proper Clause in serving the objects
of the congressional spending power.
Held: Section 666(a)(2) is a valid exercise of Congress’s Article I author-
ity. Pp. 604–610.
(a) Sabri’s “facial” challenge that § 666(a)(2) must, as an element of
the offense, require proof of connection with federal money is readily
rejected. This Court does not presume the unconstitutionality of all
federal criminal statutes from the absence of an explicit jurisdictional
hook, and there is no occasion even to consider the need for such a
requirement where there is no reason to suspect that enforcing a crimi-
nal statute would extend beyond a legitimate interest cognizable under
Article I, § 8. Congress has Spending Clause authority to appropriate
federal moneys to promote the general welfare, Art. I, § 8, cl. 1, and
corresponding Necessary and Proper Clause authority, Art. I, § 8, cl. 18,
to assure that taxpayer dollars appropriated under that power are in
fact spent for the general welfare, rather than frittered away in graft
or upon projects undermined by graft. See, e. g., McCulloch v. Mary-
land, 4 Wheat. 316. Congress does not have to accept the risk of get-
ting poor performance for its money, owing to local and state adminis-
trators’ improbity. See, e. g., id., at 417. Section 666(a)(2) addresses
the problem at the sources of bribes, by rational means, to safeguard
the integrity of federal dollar recipients. Although not every bribe of-
fered or paid to covered government agents will be traceably skimmed
from specific federal payments, or be found in the guise of a quid pro
quo for some dereliction in spending a federal grant, these facts do not

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Syllabus
portend enforcement beyond the scope of federal interest, for the simple
reason that corruption need not be so limited in order to affect that
interest. Money is fungible, bribed officials are untrustworthy stew-
ards of federal funds, and corrupt contractors do not deliver dollar-for-
dollar value. It is enough that the statute condition the offense on a
threshold amount of federal dollars defining the federal interest, such
as that provided here. The legislative history confirms that § 666(a)(2)
is an instance of necessary and proper legislation. Neither of Sabri’s
arguments against § 666(a)(2)’s constitutionality helps him. First, his
claim that § 666 is of a piece with the legislation ruled unconstitutional
in United States v. Lopez, 514 U. S. 549, and United States v. Morrison,
529 U. S. 598, is unavailing because these precedents do not control here.
In them, the Court struck down federal statutes regulating gun posses-
sion near schools and gender-motivated violence, respectively, because it
found the effects of those activities on interstate commerce insufficiently
robust. Here, in contrast, Congress was within its prerogative to en-
sure that the objects of spending are not menaced by local administra-
tors on the take. Cf. Lopez, supra, at 561. Second, contrary to Sabri’s
argument, § 666(a)(2) is not an unduly coercive, and impermissibly
sweeping, condition on the grant of federal funds, but is authority to
bring federal power to bear directly on individuals who convert public
spending into unearned private gain. South Dakota v. Dole, 483 U. S.
203, distinguished. Pp. 604–608.
(b) The Court disapproves Sabri’s technique for challenging his in-
dictment by facial attack on the underlying statute. If Sabri was mak-
ing any substantive constitutional claim, it had to be seen as an over-
breadth challenge; the most he could seriously say was that the statute
could not be enforced against him, because it could not be enforced
against someone else whose behavior would be outside the scope of Con-
gress’s Article I authority to legislate. Facial challenges of this sort
are to be discouraged because they invite judgments on fact-poor rec-
ords and entail a departure from the norms of federal-court adjudication
by calling for relaxation of familiar standing requirements to allow a
determination that the law would be unconstitutionally applied to differ-
ent parties and different circumstances from those at hand. See, e. g.,
Chicago v. Morales, 527 U. S. 41, 55–56, n. 22. Thus, the Court has
recognized the validity of facial attacks alleging overbreadth (though
not necessarily using that term) in relatively few settings, and, gener-
ally, only on the strength of a specific reason, such as free speech, that
is weighty enough to overcome the Court’s well-founded reticence.
See, e. g., Broadrick v. Oklahoma, 413 U. S. 601. Pp. 608–610.
326 F. 3d 937, affirmed and remanded.

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602 SABRI v. UNITED STATES
Opinion of the Court
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined, and
in which Kennedy and Scalia, JJ., joined as to all but Part III. Ken-
nedy, J., filed an opinion concurring in part, in which Scalia, J., joined,
post, p. 610. Thomas, J., filed an opinion concurring in the judgment,
post, p. 610.
Andrew S. Birrell argued the cause for petitioner. With
him on the briefs were R. Travis Snider and Aaron D. Van
Oort.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Olson, Assistant Attorney General Wray, Jeffrey
A. Lamken, and Jeffrey P. Singdahlsen.*
Justice Souter delivered the opinion of the Court.
The question is whether 18 U. S. C. § 666(a)(2), proscribing
bribery of state, local, and tribal officials of entities that re-
ceive at least $10,000 in federal funds, is a valid exercise of
congressional authority under Article I of the Constitution.
We hold that it is.
I
Petitioner Basim Omar Sabri is a real estate developer
who proposed to build a hotel and retail structure in the
city of Minneapolis. Sabri lacked confidence, however, in his
ability to adapt to the lawful administration of licensing and
zoning laws, and offered three separate bribes to a city coun-
cilman, Brian Herron, according to the grand jury indictment
that gave rise to this case. At the time the bribes were
allegedly offered (between July 2 and July 17, 2001), Herron
served as a member of the Board of Commissioners of the
Minneapolis Community Development Agency (MCDA), a
public body created by the city council to fund housing and
*Briefs of amici curiae urging reversal were filed for the Cato Institute
by Gary Lawson, Robert A. Levy, and Timothy Lynch; and for the Na-
tional Association of Criminal Defense Lawyers by Joshua L. Dratel,
Richard A. Greenberg, and Richard W. Garnett.

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Opinion of the Court
economic development within the city. App. to Pet. for
Cert. A–64 to A–65.
Count 1 of the indictment charged Sabri with offering a
$5,000 kickback for obtaining various regulatory approvals,
ibid., and according to Count 2, Sabri offered Herron a
$10,000 bribe to set up and attend a meeting with owners of
land near the site Sabri had in mind, at which Herron would
threaten to use the city’s eminent domain authority to seize
their property if they were troublesome to Sabri, id., at A–65
to A–66. Count 3 alleged that Sabri offered Herron a com-
mission of 10% on some $800,000 in community economic
development grants that Sabri sought from the city, the
MCDA, and other sources. Id., at A–66.
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, or any agency thereof, in connection
with any business, transaction, or series of transactions
of such organization, government, or agency involving
anything of value of $5,000 or more.”
For criminal liability to lie, the statute requires that
“the organization, government, or agency receiv[e], in
any one year period, benefits in excess of $10,000 under
a Federal program involving a grant, contract, subsidy,
loan, guarantee, insurance, or other form of Federal as-
sistance.” § 666(b).
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. App. to Pet. for Cert. A–63.
Before trial, Sabri moved to dismiss the indictment on the
ground that § 666(a)(2) is unconstitutional on its face for fail-
ure to require proof of a connection between the federal

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Opinion of the Court
funds and the alleged bribe, as an element of liability. App.
A–4. The Government responded that “even if an addi-
tional nexus between the bribery conduct and the federal
funds is required, the evidence in this case will easily meet
such a standard” because Sabri’s alleged actions related to
federal dollars. Id., at A–6. Although Sabri did not contra-
dict this factual claim, the District Court agreed with him
that the law was facially invalid. A divided panel of the
Eighth Circuit reversed, holding that there was nothing fatal
in the absence of an express requirement to prove some con-
nection between a given bribe and federally pedigreed dol-
lars, and that the statute was constitutional under the Nec-
essary and Proper Clause in serving the objects of the
congressional spending power. 326 F. 3d 937 (2003). Judge
Bye dissented out of concern about the implications of the
law for dual sovereignty. Id., at 953–957.
We granted certiorari, 540 U. S. 944 (2003), to resolve a
split among the Courts of Appeals over the need to require
connection between forbidden conduct and federal funds;
compare, e. g., United States v. Grossi, 143 F. 3d 348 (CA7
1998) (no nexus requirement), and United States v. Lips-
comb, 299 F. 3d 303 (CA5 2002) (same), with United States
v. Zwick, 199 F. 3d 672 (CA3 1999) (nexus requirement), and
United States v. Santopietro, 166 F. 3d 88 (CA2 1999) (same).
We now affirm.
II
Sabri raises what he calls a facial challenge to § 666(a)(2):
the law can never be applied constitutionally because it fails
to require proof of any connection between a bribe or kick-
back and some federal money. It is fatal, as he sees it, that
the statute does not make the link an element of the crime,
to be charged in the indictment and demonstrated beyond a
reasonable doubt. Thus, Sabri claims his attack meets the
demanding standard set out in United States v. Salerno, 481
U. S. 739, 745 (1987), since he says no prosecution can satisfy
the Constitution under this statute, owing to its failure to

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require proof that its particular application falls within Con-
gress’s jurisdiction to legislate. See Tr. of Oral Arg. 12
(“This statute cannot be properly applied in any case”).
We can readily dispose of this position that, to qualify as
a valid exercise of Article I power, the statute must require
proof of connection with federal money as an element of the
offense. We simply do not presume the unconstitutionality
of federal criminal statutes lacking explicit provision of a
jurisdictional hook, and there is no occasion even to consider
the need for such a requirement where there is no reason to
suspect that enforcement of a criminal statute would extend
beyond a legitimate interest cognizable under Article I, § 8.
Congress has authority under the Spending Clause to ap-
propriate federal moneys to promote the general welfare,
Art. I, § 8, cl. 1, and it has corresponding authority under the
Necessary and Proper Clause, Art. I, § 8, cl. 18, to see to it
that taxpayer dollars appropriated under that power are in
fact spent for the general welfare, and not frittered away in
graft or on projects undermined when funds are siphoned off
or corrupt public officers are derelict about demanding value
for dollars. See generally McCulloch v. Maryland, 4
Wheat. 316 (1819) (establishing review for means-ends ra-
tionality under the Necessary and Proper Clause). See also
Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U. S. 264, 276 (1981) (same); Hanna v. Plumer, 380
U. S. 460, 472 (1965) (same). Congress does not have to sit
by and accept the risk of operations thwarted by local and
state improbity. See, e. g., McCulloch, supra, at 417 (power
to “ ‘establish post-offices and post-roads’ ” entails authority
to “punish those who steal letters”). Section 666(a)(2) ad-
dresses the problem at the sources of bribes, by rational
means, to safeguard the integrity of the state, local, and
tribal recipients of federal dollars.
It is true, just as Sabri says, that not every bribe or kick-
back offered or paid to agents of governments covered by
§ 666(b) will be traceably skimmed from specific federal pay-

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ments, or show up in the guise of a quid pro quo for some
dereliction in spending a federal grant. Cf. Salinas v.
United States, 522 U. S. 52, 56–57 (1997) (The “expansive,
unqualified” language of the statute “does not support the
interpretation that federal funds must be affected to violate
§ 666(a)(1)(B)”). But this possibility portends no enforce-
ment beyond the scope of federal interest, for the reason that
corruption does not have to be that limited to affect the fed-
eral interest. Money is fungible, bribed officials are un-
trustworthy stewards of federal funds, and corrupt contrac-
tors do not deliver dollar-for-dollar value. Liquidity is not
a financial term for nothing; money can be drained off here
because a federal grant is pouring in there. And officials
are not any the less threatening to the objects behind federal
spending just because they may accept general retainers.
See Westfall v. United States, 274 U. S. 256, 259 (1927) (ma-
jority opinion by Holmes, J.) (upholding federal law criminal-
izing fraud on a state bank member of federal system, even
where federal funds not directly implicated). It is certainly
enough that the statutes condition the offense on a threshold
amount of federal dollars defining the federal interest, such
as that provided here.
For those of us who accept help from legislative history,
it is worth noting that the legislative record confirms that
§ 666(a)(2) is an instance of necessary and proper legislation.
The design was generally to “protect the integrity of the
vast sums of money distributed through Federal programs
from theft, fraud, and undue influence by bribery,” see
S. Rep. No. 98–225, p. 370 (1983), in contrast to prior federal
law affording only two limited opportunities to prosecute
such threats to the federal interest: 18 U. S. C. § 641, the fed-
eral theft statute, and § 201, the federal bribery law. Those
laws had proven inadequate to the task. The former went
only to outright theft of unadulterated federal funds, and
prior to this Court’s opinion in Dixson v. United States, 465
U. S. 482 (1984), which came after passage of § 666, the brib-

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ery statute had been interpreted by lower courts to bar
prosecution of bribes directed at state and local officials.
See, e. g., United States v. Del Toro, 513 F. 2d 656, 661–663
(CA2 1975) (overturning federal bribery conviction); see gen-
erally Salinas, 522 U. S., at 58–59 (recounting the limitations
of the pre-existing statutory framework). Thus we said that
§ 666 “was designed to extend federal bribery prohibitions to
bribes offered to state and local officials employed by agen-
cies receiving federal funds,” id., at 58, thereby filling the
regulatory gaps. Congress’s decision to enact § 666 only
after other legislation had failed to protect federal interests
is further indication that it was acting within the ambit of
the Necessary and Proper Clause.
Petitioner presses two more particular arguments against
the constitutionality of § 666(a)(2), neither of which helps
him. First, he says that § 666 is all of a piece with the legis-
lation that a majority of this Court held to exceed Congress’s
authority under the Commerce Clause in United States v.
Lopez, 514 U. S. 549 (1995), and United States v. Morrison,
529 U. S. 598 (2000). But these precedents do not control
here. In Lopez and Morrison, the Court struck down fed-
eral statutes regulating gun possession near schools and
gender-motivated violence, respectively, because it found the
effects of those activities on interstate commerce insuffi-
ciently robust. The Court emphasized the noneconomic na-
ture of the regulated conduct, commenting on the law at
issue in Lopez, for example, “that by its terms [it] has noth-
ing to do with ‘commerce’ or any sort of economic enterprise,
however broadly one might define those terms.” 514 U. S.,
at 561. The Court rejected the Government’s contentions
that the gun law was valid Commerce Clause legislation be-
cause guns near schools ultimately bore on social prosper-
ity and productivity, reasoning that on that logic, Com-
merce Clause authority would effectively know no limit.
Cf. Morrison, supra, at 615–616 (rejecting comparable con-
gressional justification for Violence Against Women Act of

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Opinion of the Court
1994). In order to uphold the legislation, the Court con-
cluded, it would be necessary “to pile inference upon infer-
ence in a manner that would bid fair to convert congressional
authority under the Commerce Clause to a general police
power of the sort retained by the States.” Lopez, 514
U. S., at 567.
No piling is needed here to show that Congress was within
its prerogative to protect spending objects from the menace
of local administrators on the take. The power to keep a
watchful eye on expenditures and on the reliability of those
who use public money is bound up with congressional author-
ity to spend in the first place, and Sabri would be hard
pressed to claim, in the words of the Lopez Court, that
§ 666(a)(2) “has nothing to do with” the congressional spend-
ing power. Id., at 561.
Sabri next argues that § 666(a)(2) amounts to an unduly
coercive, and impermissibly sweeping, condition on the grant
of federal funds as judged under the criterion applied in
South Dakota v. Dole, 483 U. S. 203 (1987). This is not so.
Section 666(a)(2) is authority to bring federal power to bear
directly on individuals who convert public spending into un-
earned private gain, not a means for bringing federal eco-
nomic might to bear on a State’s own choices of public
policy.*
III
We add an afterword on Sabri’s technique for challenging
his indictment by facial attack on the underlying statute, and
begin by recalling that facial challenges are best when infre-
quent. See, e. g., United States v. Raines, 362 U. S. 17, 22
(1960) (laws should not be invalidated by “reference to hypo-
thetical cases”); Yazoo & Mississippi Valley R. Co. v. Jack-
son Vinegar Co., 226 U. S. 217, 219–220 (1912) (same). Al-
*In enacting § 666, Congress addressed a legitimate federal concern by
licensing federal prosecution in an area historically of state concern. In
upholding the constitutionality of the law, we mean to express no view as
to its soundness as a policy matter.

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though passing on the validity of a law wholesale may be
efficient in the abstract, any gain is often offset by losing the
lessons taught by the particular, to which common law
method normally looks. Facial adjudication carries too
much promise of “premature interpretatio[n] of statutes” on
the basis of factually barebones records. Raines, supra,
at 22.
As exemplified here, facial challenge can carry a further
risk that a skeptical approach by district courts may avoid.
Sabri was able to call his challenge a facial one in the strict-
est sense of saying that no application of the statute could
be constitutional, only by claiming that proof of the congres-
sional jurisdictional basis must be an element of the statute,
a position that is of course not generally true at all. If that
particular claim had been peeled away, it would have been
obvious that the acts charged against Sabri himself were
well within the limits of legitimate congressional concern.
It would have been correspondingly clear that if Sabri was
making any substantive constitutional claim, it had to be
seen as an overbreadth challenge; the most he could say was
that the statute could not be enforced against him, because
it could not be enforced against someone else whose behavior
would be outside the scope of Congress’s Article I authority
to legislate.
Facial challenges of this sort are especially to be discour-
aged. Not only do they invite judgments on fact-poor rec-
ords, but they entail a further departure from the norms of
adjudication in federal courts: overbreadth challenges call
for relaxing familiar requirements of standing, to allow a de-
termination that the law would be unconstitutionally applied
to different parties and different circumstances from those
at hand. See, e. g., Chicago v. Morales, 527 U. S. 41, 55–56,
n. 22 (1999) (plurality opinion). Accordingly, we have recog-
nized the validity of facial attacks alleging overbreadth
(though not necessarily using that term) in relatively few
settings, and, generally, on the strength of specific reasons

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Thomas, J., concurring in judgment
weighty enough to overcome our well-founded reticence.
See, e. g., Broadrick v. Oklahoma, 413 U. S. 601 (1973) (free
speech); Aptheker v. Secretary of State, 378 U. S. 500 (1964)
(right to travel); Stenberg v. Carhart, 530 U. S. 914, 938–946
(2000) (abortion); City of Boerne v. Flores, 521 U. S. 507, 532–
535 (1997) (legislation under § 5 of the Fourteenth Amend-
ment). See generally Fallon, As-Applied and Facial Chal-
lenges and Third-Party Standing, 113 Harv. L. Rev. 1321,
1351 (2000) (emphasizing role of various doctrinal tests in
determining viability of facial attack); Monaghan, Over-
breadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth
is a function of substantive First Amendment law). Outside
these limited settings, and absent a good reason, we do not
extend an invitation to bring overbreadth claims.
IV
We remand for proceedings consistent with this opinion.
The judgment of the Court of Appeals for the Eighth Cir-
cuit is
Affirmed.
Justice Kennedy, with whom Justice Scalia joins, con-
curring in part.
I join all but Part III of the Court’s opinion. I do not join
Part III but do make this comment with reference to it.
The Court in Part III does not specifically question the prac-
tice we have followed in cases such as United States v. Lopez,
514 U. S. 549 (1995), and United States v. Morrison, 529 U. S.
598 (2000). 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.
Justice Thomas, concurring in the judgment.
Title 18 U. S. C. § 666(a)(2) is a valid exercise of Congress’
power to regulate commerce, at least under this Court’s

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Thomas, J., concurring in judgment
precedent. Cf. Perez v. United States, 402 U. S. 146, 154
(1971). I continue to doubt that we have correctly inter-
preted the Commerce Clause. See United States v. Mor-
rison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring);
United States v. Lopez, 514 U. S. 549, 584–585 (1995)
(Thomas, J., concurring). But 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.
I write further because I find questionable the scope the
Court gives to the Necessary and Proper Clause as applied
to Congress’ authority to spend. In particular, the Court
appears to hold that the Necessary and Proper Clause au-
thorizes the exercise of any power that is no more than a
“rational means” to effectuate one of Congress’ enumerated
powers. Ante, at 605. This conclusion derives from the
Court’s characterization of the seminal case McCulloch v.
Maryland, 4 Wheat. 316 (1819), as having established a
“means-ends rationality” test, ante, at 605, a characterization
that I am not certain is correct.
In McCulloch, the Court faced the question whether the
United States had the power to incorporate a national bank.
The Court was forced to navigate between the one extreme
of the “absolute necessity” construction advocated by the
State of Maryland, 4 Wheat., at 387 (argument of counsel),
which would “clog and embarrass” the execution of the enu-
merated powers “by withholding the most appropriate
means” for its execution, id., at 408, and the other extreme,
an interpretation that would destroy the Framers’ purpose
of establishing a National Government of limited and enu-
merated powers, see id., at 423; cf. Gibbons v. Ogden, 9
Wheat. 1, 194–195 (1824). The Court, speaking through
Chief Justice Marshall, carefully and effectively refuted
Maryland’s proposed “absolute necessity” test. “It must
have been the intention of those who gave these powers, to
insure, as far as human prudence could insure, their benefi-
cial execution,” the Court stated; “[t]his could not be done

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Thomas, J., concurring in judgment
by confiding the choice of means to such narrow limits as not
to leave it in the power of Congress to adopt any which might
be appropriate, and which were conducive to the end.” Mc-
Culloch, 4 Wheat., at 415. The Court opined that it would
render the Constitution “a splendid bauble” if “the right to
legislate on that vast mass of incidental powers which must
be involved in the constitution” were not within the power
of Congress. Id., at 421.
But the Court did not then conclude that the Necessary
and Proper Clause gives unrestricted power to the Federal
Government. See ibid. (“[T]he powers of the government
are limited, and . . . its limits are not to be transcended”).
Rather, it set forth the following test:
“Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the
constitution, are constitutional.” Ibid.1
“[A]ppropriate” and “plainly adapted” are hardly synony-
mous with “means-end rationality.” Indeed, “plain” means
“evident to the mind or senses: OBVIOUS,” “CLEAR,” and
“characterized by simplicity: not complicated.” Webster’s
Ninth New Collegiate Dictionary 898 (1991); see also
N. Webster, American Dictionary of the English Language
(1828) (facsimile edition) (defining “plainly” as “[i]n a manner
to be easily seen or comprehended,” and “[e]vidently; clearly;
not obscurely”). A statute can have a “rational” connection
to an enumerated power without being obviously or clearly
tied to that enumerated power. To show that a statute is
1 We have recently used a very similar formulation in describing the
appropriate test under the Necessary and Proper Clause. In Jinks v.
Richland County, 538 U. S. 456 (2003), we upheld the constitutionality of
28 U. S. C. § 1367(d) only after carefully concluding that the statute was
both “conducive to” Congress’ “power to constitute Tribunals inferior to
the supreme Court,” and also “plainly adapted” to that end. 538 U. S., at
462, 464 (internal quotation marks omitted).

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“plainly adapted” to a legitimate end, then, one must seem-
ingly show more than that a particular statute is a “rational
means,” ante, at 605, to safeguard that end; rather, it would
seem necessary to show some obvious, simple, and direct re-
lation between the statute and the enumerated power. Cf. 8
Writings of James Madison 448 (G. Hunt ed. 1908).
Under the McCulloch formulation, I have doubts that
§ 666(a)(2) is a proper use of the Necessary and Proper
Clause as applied to Congress’ power to spend. Section 666
states that, for any “organization, government, or agency
[that] receives, in any one year period, benefits in excess of
$10,000 under a Federal program,” § 666(b), any person who
“corruptly gives, offers, or agrees to give anything of
value to any person, with intent to influence or reward
an agent of [such] organization or of [such] State, local
or Indian tribal government, or any agency thereof,
in connection with any business, transaction, or series
of transactions of such organization, government, or
agency involving anything of value of $5,000 or more,”
§ 666(a)(2),
commits a federal crime. All that is necessary for § 666(a)(2)
to apply is that the organization, government, or agency in
question receives more than $10,000 in federal benefits of any
kind, and that an agent of the entity is bribed regarding a
substantial transaction of that entity. No connection what-
soever between the corrupt transaction and the federal bene-
fits need be shown.
The Court does a not-wholly-unconvincing job of tying the
broad scope of § 666(a)(2) to a federal interest in federal
funds and programs. See ante, at 605–606. But simply
noting that “[m]oney is fungible,” ante, at 606, for instance,
does not explain how there could be any federal interest in
“prosecut[ing] a bribe paid to a city’s meat inspector in con-
nection with a substantial transaction just because the city’s
parks department had received a federal grant of $10,000,”

541US2 Unit: $U50 [01-30-05 10:39:48] PAGES PGT: OPIN
614 SABRI v. UNITED STATES
Thomas, J., concurring in judgment
United States v. Santopietro, 166 F. 3d 88, 93 (CA2 1999).
It would be difficult to describe the chain of inferences and
assumptions in which the Court would have to indulge to
connect such a bribe to a federal interest in any federal funds
or programs as being “plainly adapted” to their protection.
And, this is just one example of many in which any federal
interest in protecting federal funds is equally attenuated,
and yet the bribe is covered by the expansive language of
§ 666(a)(2). Overall, then, § 666(a)(2) appears to be no more
plainly adapted to protecting federal funds or federally
funded programs than a hypothetical federal statute crimi-
nalizing fraud of any kind perpetrated on any individual who
happens to receive federal welfare benefits.2
Because I would decide this case on the Court’s Commerce
Clause jurisprudence, I do not ultimately decide whether
Congress’ power to spend combined with the Necessary and
Proper Clause could authorize the enactment of § 666(a)(2).
But regardless of the particular outcome of this case under
the correct test, the Court’s approach seems to greatly and
improperly expand the reach of Congress’ power under the
Necessary and Proper Clause. Accordingly, I concur in the
judgment.
2 Criminalizing the theft (by fraud or otherwise) or embezzlement of
federal funds themselves fits comfortably within Congress’ powers. See
United States v. Hall, 98 U. S. 343 (1879) (embezzlement of a soldier’s fed-
eral pension).