Congress has the power to coin money. Art. I, section 1 Cl.1. Does this mean that Congress also has the power to regulate transactions involving one-penny or more? May Congress make it a federal crime to steal a penny from my pocket? If not, then why not? Couldn’t Congress rationally conclude that it has an interest in seeing that its money remains with the rightful owner?
Were the Court to interpret the clause that way, then Congress would have the power over everything. We know that Congress does not have the power over everything. Therefore, the law is unconstitutional.
Gifts & Spending
When you make a gift, you lose the gift. This is a recognized principle of common law – and common sense. When I was younger, my friends and I had a derogatory term for someone who sought to rescind a gift.
If I spend money at a store, I can return unsatisfactory merchandise for a refund. If someone stole the money I spent at the store, then I may sue the store – but not the thief. This is unlike an item left in a safety deposit box. Money is fungible.
When Congress spends money, it gives the money to the state. Why do these same principles not apply?
If the coining of money does not give Congress the power to punish the theft of one-cent, then why does the spending of money provide Congress the power to make criminal a bribe aimed at a local official whose agency received federal funds? Ten-thousand dollars to Congress is one-penny to you or me.
In Sabri Congress argued that it may punish Sabri for bribing a federal official because that federal official worked for an agency that received federal funds. Congress spent the money and therefore may regulate attempts at officials who have access to that money, even if the person did not go after the money itself.
If Congress may reach private acts in this way, what limit is there to the Spending Clause? Could Congress not argue that domestic violence is a federal crime if the person abused sought shelter at a shelter that receives federal funds? Could Congress not make it a federal crime to punch a police officer since almost every police officer works for an agency receiving federal funds. Is the murder of every state, county, and city employee now a potential federal crime?
What limit is there to the Spending Clause if Congress may reach a private act merely by providing $10,000 to a state? To ask the question, unfortunately, is to answer it.