specially concurring.
I am pleased that the majority opinion explicitly recognizes a facial constitutional challenge exception to the procedural default doctrine. The facial constitutional challenge exception has deep roots. See Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879) (seminal case); see also United States v. Broce, 488 U.S. 563, 574-76, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); Haring v. Prosise, 462 U.S. 306, 319-22, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Menna v. New York, 423 U.S. 61, 62 & n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam); Blackledge v. Perry, 417 U.S. 21, 29-30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States ex rel. Swanson v. Reincke, 344 F.2d 260, 261 (2d Cir.1965); United States v. Gaertner, 583 F.2d 308, 311 (7th Cir. 1978); Journigan v. Duffy, 552 F.2d 283, 288-89 (9th Cir.1977); Jellum v. Cupp, 475 F.2d 829, 830 (9th Cir.1973); Owens v. Wainwright, 698 F.2d 1111, 1114-15 (11th Cir.1983) (per curiam) (implied holding); cf United States v. Drew, 200 F.3d 871, 880-83 (D.C.Cir.2000) (Edwards, C.J., concurring) (acknowledging the Blaclcledge-Menna line of cases and urging adherence thereto in the District of Columbia Circuit).1
*1072Although we had not explicitly applied the exception in a case procedurally similar to Morgan’s case, cf. Weisberg v. State of Minnesota, 29 F.3d 1271, 1279-80 (8th Cir.1994), Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir.1982) (per curiam), Country v. Parratt, 684 F.2d 588, 589 n. 1 (8th Cir.1982), the exception is a sound one. Surely it offends our system of ordered liberty to permit a prisoner to remain incarcerated when the statute under which he was convicted exceeded Congress’ lawmaking power to enact.
Although I join the majority opinion, I write separately (perhaps only for my own benefit) to lament the fact that Morgan may not raise the one claim that has merit. An administrative panel of this court granted Morgan a certificate of appealability (COA) that permitted him to raise only an actual innocence challenge to his federal-program bribery conviction, 18 U.S.C. § 666. The administrative panel’s decision effectively sounded the death-knell for Morgan’s appeal because, without doubt, Morgan is not actually innocent of that crime. At his change-of-plea hearing, Morgan pleaded guilty to each of the elements of § 666. Hence Morgan cannot sustain the sole challenge he may raise in this appeal. Cf. DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000) (“[Ajppel-late review is limited to the issues specified in the certificate of appealability.”).2
Morgan does have a meritorious claim. We simply cannot reach that claim because it wasn’t included in his COA. His meritorious claim is a facial constitutional challenge to § 666, the very challenge we ae-knowledge in the majority opinion — a cruel irony.
Section 666 prohibits acts of bribery, theft, and fraud against state and local governments (and certain other organizations) receiving funds under federal assistance programs. See Fischer v. United States, 529 U.S. 667, 120 S.Ct. 1780, 1785, 146 L.Ed.2d 707 (2000). The statute enacts criminal penalties for those who:
(1) offer anything with a value of more than $5000;
(2) to any agent of a state or local government; and
(3) that government receives more than $10,000 per year in federal funds.
See 18 U.S.C. § 666.
The statute’s sweeping language implies that the federal government may prosecute bribers whose activities bear no direct relation to the government’s receipt of federal funds. See Salinas v. United States, 522 U.S. 52, 56-57, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (recognizing that the language of § 666 authorizes almost limitless criminal liability because of the “expansive, unqualified language”). In Salinas, a statutory interpretation case, the Supreme Court observed that Congress had enacted a breathtakingly broad criminal statute. But the Court was not asked to probe the constitutionality of § 666. Salinas challenged only the meaning of the words in the statute. See id. at 59-60, 118 S.Ct. 469.3
Two circuits have recently discussed the constitutionality of § 666, and upheld the law as a valid exercise of Congress’s *1073Spending Clause power. See United States v. Santopietro, 166 F.3d 88, 92-94 (2d Cir.1999); United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999). Yet both the Second and Third Circuits were troubled by the sweeping breadth of § 666. Each court determined that § 666 could be saved from constitutional infirmity by reading into the text of the statute an additional “germaneness,” or “nexus,” requirement.4 These courts in effect mandate that the quid pro quo directly impact funds that are federal in origin.
The approach taken by the Second and Third Circuits is fundamentally flawed for two reasons. First, and most obviously, federal courts are not free to rewrite the federal penal code. The Supreme Court has repeatedly admonished courts not to inject new elements into federal criminal statutes.
Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language. This proposition is not altered simply because application of a statute is challenged on constitutional grounds. Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature.
United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (internal citations omitted and punctuation altered).
Second, even if a “nexus” element could be added in an effort to resuscitate § 666, the result would be wholly ineffectual. To put it bluntly, Congress lacks the power under the Spending Clause to enact criminal laws governing third-party conduct. Judicial efforts to render § 666 palatable by adding an element to the crime cannot alter our Constitution’s basic limitation on federal legislative power. No amount of creative drafting permits the judiciary to preserve a statute that Congress plainly lacked the power to create.
Congress may not pass laws unless it acts pursuant to an express grant of power or authority in Article I of the Constitution. Section 666 cannot properly be linked to any grant of Congressional power in the Constitution. Hence, Congress exceeded its proper authority in enacting § 666; the law is unconstitutional, void ab initio. To explain this conclusion in greater depth requires a brief review of the two Article I provisions upon which Congress might have relied to justify enactment of § 666. See Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.1997) (explaining that Congress need not correctly surmise the source of its authority in order to pass legislation, and may ground its legislative authority in multiple sources).
Every court that has addressed the issue has concluded that Congress adopted § 666 pursuant to its Spending Clause power. See, e.g., United States v. McCormack, 31 F.Supp.2d 176, 186 n. 18 (D.Mass.1998) (collecting cases); see also Fischer, 120 S.Ct. at 1793 n. 3 (Thomas, J., dissenting). The Spending Clause provides that
[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.
U.S. Const, art. I, § 8, cl. 1.
While Congress may disburse funds under this grant of power, Congress may not make laws. Congress may indirectly regulate state conduct by attaching “strings” to grants of money given to state and local governments, see South Dakota v. Dole, 483 U.S. 203, 206-207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), but those strings aren’t laivs. See generally David E. Engdahl, The Spending Power, 44 Duke L.J. 1, 71 (October 1994) (“What makes [federal *1074funding] conditions obligatory is that essence as contract, wholly apart from the circumstance that they happen to be spelled out in a statute or an agency rule. Although articulated in a statute or rule, they have no force as ‘law’; their only force is contractual. Consequently, they are not among the ‘Laws of the United States ... made in Pursuance’ of the Constitution, to which the Supremacy Clause applies.”).
Indeed, Congress’s Spending Clause power is comprehensible only by analogy to principles of contract law. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (“[LJegislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States • agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”); cf. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610-11 (8th Cir.1999) (“Title IX operates to condition an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds. The fact that title IX was enacted pursuant to Congress’s spending power is evidence that it prohibits discriminatory acts only by grant recipients. Several circuits have held that because they are not grant recipients, school officials may not be sued in their individual capacity under Title IX.”) (internal punctuation and citations omitted).
In enacting § 666, however, Congress did not contract with states or local governments. Neither did Congress bestow gifts of funds upon those governments. Rather, Congress passed a federal criminal statute designed to punish conduct that falls within the domain of traditional state concerns (bribery, embezzlement, fraud, etc.). Section 666 reaches beyond punishment of the state and local governments who receive those funds to proscribe the conduct of third persons who aren’t parties to the funding contract. Spending Clause power is not that broad.
The Spending Clause nowhere authorizes Congress to criminally legislate. Thus § 666 floats far from Congress’s Spending Clause moorings. See Engdahl, 44 Duke L.J. at 92 (“[Section 666] laek[s] any basis in the Constitution.... Congress has no more power to punish theft from the beneficiaries of its largesse than it has to punish theft from anyone else. Federal dominion over federal property is irrelevant, because once any particular funds have been given to a recipient, those funds are not federal property anymore. The Constitution does not contemplate that federal regulatory power should tag along after federal money like a hungi"y dog.”) (emphasis added).
No court has suggested that Congress rested its power to enact § 666 on the Commerce Clause. Nor do the House and Senate Reports imply any such intent on the part of Congress. That’s not really surprising; section 666 bears little coherent relationship to commerce. The text of § 666 reveals only a strong connection to federal funds. Section 666(b) has been termed a “jurisdictional provision,” likely on the theory that if the bribee obtains at least $10,000 in federal funds, then the federal government has an interest in prosecuting. But this $10,000 threshold does nothing to screen out intra state bribery. Most intrastate bribery falls outside the ambit of Congress’s Commerce Clause power. Thus Congress could not have grounded § 666 on its Commerce Clause power.
Article I contains numerous explicit grants of power to Congress. But none of these powers remotely concerns federal criminal penalties for bribery. I am forced to conclude — albeit with some reluctance — that Congress lacked the power to enact § 666 as a federal crime. My reluctance stems largely from the fact that “[n]o court ... has ever struck down a federal statute on grounds that it exceeded the Spending Power.” Commonwealth of *1075Va. v. Browner, 80 F.3d 869, 881 (4th Cir.1996). Yet I find that to be an unavoidable conclusion in this instance.
Section 666 is, I believe, the only federal crime whose supposed constitutional basis is the Spending Clause. That may speak volumes. Congress may well realize the fragile power of the Spending Clause— in particular, the fact that the Clause confers upon Congress no criminal lawmaking power.
Had Morgan been permitted to raise a facial constitutional challenge to his conviction by the administrative panel, I would strike down § 666 as an unconstitutional exercise of Congress’s Spending Clause power. Because the administrative panel has placed the matter beyond my grasp, however, I must respectfully concur, despite my deep reservations about the soundness of Morgan’s conviction.
. It’s worth noting that this exception is not jurisdictional in character, although many courts have erred in this direction. The Sie-bold Court described its holding as jurisdictional, see Siebold, 100 U.S. at 377, but that was a judicial stratagem. When Siebold was decided, Congress permitted federal courts to grant habeas relief only in cases where the sentencing court lacked jurisdiction, hence the Siebold Court had to strong-arm the unconstitutionality peg into the jurisdictional hole. See generally Withrow v. Williams, 507 U.S. 680, 718-19, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (Scalia, J., concurring and dissenting) (explaining that the late 19th century Court expanded the term jurisdiction to encompass constitutional challenges as part of a thinly-veiled effort to broaden habeas relief — then limited solely to jurisdictional *1072questions — but that the Court abandoned that approach in the 1940s when Congress liberalized federal habeas relief); Stone v. Powell, 428 U.S. 465, 474-78, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).f
. DeRoo and its predecessor cases forbid prisoners from raising issues not included within their COAs. We have not held, in my view, that a hearing panel is likewise forbidden from expanding the scope of a COA. Although I would have preferred to do precisely that in Morgan’s case, restraint counsels a different conclusion. A COA is “law of the case,” and it is perhaps best that the eventual hearing panel not reconsider the administrative panel’s judgment in establishing the scope of a prisoner’s COA.
. I acknowledge Justice Kennedy’s constitutional speculations, see Salinas, 522 U.S. at 60-61, 118 S.Ct. 469, but they are precisely that — speculations. Because federal courts have no obligation to raise constitutional issues sua sponte, I am unable to wrench an implied constitutional holding from Salinas.
. The Sixth Circuit has explicitly rejected an additional “nexus” element. See United States v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999).