UNITED STATES COURT OF APPEALS
For the Fifth Circuit
UNITED STATES OF AMERICA
KEITH DOUGLAS BAILEY
Appeal from the United States District Court
For the Western District of Texas
June 12, 1997
Before POLITZ, Chief Judge, and SMITH and DUHÃ‰, Circuit Judges.
JOHN M. DUHÃ‰, JR., Circuit Judge:
We consider for the first time the reach of Congress's
authority to enact under the Commerce Clause the Child Support
Recovery Act, 18 U.S.C. § 228, which makes it a federal crime to
"willfully fail to pay a past due support obligation with respect
to a child who resides in another state." We conclude that the Act
passes constitutional muster under Congress's plenary powers to
regulate both the use of the channels of interstate commerce and
persons or things in interstate commerce. Accordingly, we reverse
and remand for proceedings consistent with this opinion.
In May, 1994, a Texas state court ordered Defendant-Appellee
Keith Douglas Bailey to pay $500 per month in child support for his
four-year-old son. Thereafter, Bailey established residence in
Tennessee and ceased, at least for a period of time, to make the
court-ordered payments, a violation of the state court order. The
Government, in the United States District Court for the Western
District of Texas, responded by charging Bailey with violation of
the Child Support Recovery Act ("CSRA" or "Act"), 18 U.S.C. § 228.
Bailey moved to dismiss the charge on the ground that § 228
represents an unconstitutional exercise of Congress's legislative
power. The district court agreed and dismissed the charge, holding
that the CSRA exceeds Congress's authority under the Commerce
The court offered two reasons in support of its holding.
First, relying on the Supreme Court's express reluctance in United
States v. Lopez, 115 S. Ct. 1624
, 1632 (1995), to involve federal
courts in family law matters, the court found constitutionally
suspect Congress's attempt to regulate the familial relationship
between Mr. and Mrs. Bailey. See United States v. Bailey, 902 F.
Supp. 727, 728 (W.D. Tex. 1995). Second, the court cited
federalism concerns, stating both that the CSRA is an
unconstitutional federal incursion into state criminal
prosecutions, see id. at 728-29, and that federal courts faced with
defenses challenging the validity of the underlying state court
[End Page 2]
support order would be forced to review and apply these orders in
violation of principles of federalism and comity. See id. at 729.
Invoking the domestic relations exception to federal jurisdiction,
the court then concluded that the CSRA could not be supported
within our constitutional structure. See id. The Government
timely appeals, arguing that the CSRA not only fits comfortably
within Congress's plenary powers under the Commerce Clause but also
does not impermissibly upset this nation's delicate federal-state
We review the constitutionality of a federal statute de novo.
See Madison v. Parker, 104 F.3d 765
, 767 (5th Cir. 1997). Under
Supreme Court precedent, our review of legislation enacted under
the Commerce Clause is circumscribed by a rational basis inquiry.
This Court, therefore, may invalidate legislation enacted under the
Commerce Clause only if it is clear that there is no rational basis
for a congressional finding that the regulated activity
sufficiently involves interstate commerce. See, e.g., Hodel v.
Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264
The CSRA punishes the "willful fail[ure] to pay a past due
support obligation with respect to a child who resides in another
State." 18 U.S.C. § 228(a). The statute defines "past due support
obligation" as "any amount--(A) determined under a court order or
an order of an administrative process pursuant to the law of a
State to be due from a person for the support and maintenance of a
[End Page 3]
child or of a child and the parent with whom the child is living;
and (B) that has remained unpaid for a period longer than one year,
or is greater than $5,000." 18 U.S.C. § 228(d)(1).
Congress was motivated to enact the CSRA partly by statistics
revealing the growing poverty within single-family homes and the
observation that financial support from noncustodial parents could
combat that poverty. See H.R. Rep. 102-771, at 5 (1992). The
House Judiciary Committee reported that in 1989, approximately $5
billion of the $16.3 billion due in child support payments remained
unpaid. See id. The Committee emphasized that this deficit is
"unacceptably high," especially "in interstate collection cases,
where enforcement of support is particularly difficult." Id. In
fact, the Committee found that more than one-half of the custodial
parents in interstate cases received support payments
"occasionally, seldom or never," id., largely because delinquent
parents were making "a mockery of State law by fleeing across State
lines to avoid enforcement actions by State courts and child
support agencies." 138 Cong. Rec. H7324, H7326 (daily ed. Aug. 4,
1992) (statement of Cong. Hyde). Recognizing that state
extradition and enforcement "remains a tedious, cumbersome and slow
method of collection," see H.R. Rep. No. 102-771, at 6, Congress
enacted the CSRA "to strengthen, not to supplant, State enforcement
efforts." 138 Cong. Rec. at H7326 (statement of Cong. Hyde). I
The Commerce Clause delegates to Congress the power to
"regulate Commerce with foreign Nations, and among the several
[End Page 4]
States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl.
3. Early on, the Supreme Court defined Congress's Commerce Clause
powers broadly, rejecting the suggestion that "commerce" is
narrowly limited only "to traffic, to buying and selling, or the
interchange of commodities." See Gibbons v. Ogden, 22 U.S. (9
Wheat) 1, 189 (1824). The Court announced, "Commerce undoubtedly
is traffic, but it is something more: it is intercourse. It
describes the commercial intercourse between nations, and parts of
nations, in all its branches, and is regulated by prescribing rules
for carrying on that intercourse." Id. at 189-90. Since the
earlier part of this century, the Court has given breadth to
Gibbons's pronouncement and has greatly expanded Congress's
authority under this Clause.
The Supreme Court recently summarized the scope of Congress's
Commerce Clause powers, identifying three aspects of interstate
commerce that Congress may regulate: (1) "the use of the channels
of interstate commerce[;]" (2) "the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities[;]"
and (3) "those activities having a substantial relation to
interstate commerce." See Lopez, 115 S. Ct. at 1629 (holding that
18 U.S.C. § 922(q), the Gun Free School Zones Act, exceeded
Congress's commerce powers because the Act did not regulate
economic activity and contained neither a jurisdictional element
requiring an interstate nexus nor an express legislative history
explaining the Act's connection to interstate commerce). We
[End Page 5]
conclude that the activity regulated by the CSRA falls within the
first and second categories of permissible regulation and therefore
find that the CSRA is a constitutional exercise of Congress's
commerce powers.1 We decline to reach the question whether the
CSRA may also be upheld under the third category.2
Bailey challenges the constitutionality of the CSRA first on
the basis that the Act, by its terms, lacks a jurisdictional nexus
to interstate commerce. The Government replies that because the
CSRA operates only when the noncustodial parent and his child
reside in different states, a sufficient nexus exists to support
jurisdiction. Bailey responds that this requirement is simply a
condition precedent guaranteeing only the diversity of state
residence that does not, on its face, implicate interstate
commerce. We find Bailey's argument unpersuasive.
Six other circuits have considered the constitutionality of
the CSRA under the Commerce Clause and have found it constitutional
for various reasons. See United States v. Johnson, No. 96-4323,
1997 WL 283447 (4th Cir. May 30, 1997); United States v. Parker,
108 F.3d 28
(3d Cir. 1997); United States v. Bongiorno, 106 F.3d 1027
(1st Cir. 1997); United States v. Hampshire, 95 F.3d 999
Cir. 1996), cert. denied, 117 S. Ct. 753
(1997); United States v.
Mussari, 95 F.3d 787
(9th Cir. 1996), cert. denied, 117 S. Ct. 1567
(1997); United States v. Sage, 92 F.3d 101
(2d Cir. 1996), cert.
denied, 117 S. Ct. 784
(1997). Unless otherwise indicated, we
express no opinion as to our acceptance or rejection of the
reasoning employed therein.
We are puzzled by the dissent's lengthy focus on the problems
attendant with the invocation of the "substantially affects"
category in the instant case. See infra Part I.A. As the dissent
itself recognizes, we make no effort to defend the
constitutionality of the CSRA on the basis that the failure to pay
court-ordered child support "substantially affects" interstate
[End Page 6]
We note as an initial matter that Bailey is correct in his
premise that the diversity of residence between parent and child
alone is insufficient to bestow upon Congress the power to regulate
under the Commerce Clause. If we were to so hold, we would
unwittingly open the floodgates to allowing Congress to regulate
any and all activity it so desired, even those activities
traditionally reserved for state regulation, so long as opposing
parties are diverse. We need not entertain this fear, however,
because in CSRA litigation, there is more than just the
satisfaction of the diversity-of-residence requirement; there is
that plus the debt created by the state support order.3 As
discussed below, these in tandem are sufficient to support the
constitutionality of the CSRA.
The first category of regulation, "the channels of interstate
commerce," refers to "the interstate transportation routes through
which persons and goods move." United States v. Parker, 911 F.
Supp. 830, 842 (E.D. Pa. 1995), rev'd. on other grounds, 108 F.3d 28
(3d Cir. 1997). The second category, "the instrumentalities of
interstate commerce, or persons or things in interstate commerce,"
includes "regulation or protection pertaining to instrumentalities
or things as they move in interstate commerce." United States v.
Because the creation of the debt is wholly intrastate and
because such debt gains interstate characteristics only when one
parent moves out-of-state, some argue that the jurisdictional nexus supporting the CSRA really is diversity of residence and thus take
issue with our statement that diversity alone is not enough. We
disagree. It does not matter that the creation of the debt is
wholly intrastate. That fact becomes irrelevant once one party
moves out-of-state, because it is at this point, and not before,
that the government has jurisdiction under the CSRA.
[End Page 7]
Kirk, 105 F.3d 997
, 1008 (5th Cir. 1997) (en banc) (per curium)
(opinion of Jones, J.) (emphasis added), petition for cert. filed,
65 U.S.L.W. 3756 (U.S. May 5, 1997) (No. 96-1759). Bailey's
obligation, or debt, to his son not only implicates the use of the
channels of interstate commerce but also is itself a thing flowing
in interstate commerce. Bailey's obligation thus falls within the
constitutional powers of Congress to regulate for these two
As to the first category, the child support obligation--made
interstate in nature as a direct consequence of the diversity
requirement imposed upon the obligor and the obligee--can be
satisfied normally by a payment that necessarily must move in
interstate commerce.4 The mechanism used to complete this
The dissent assails our position as unsupported by the text
of the Act, asserting that even if one assumes interstate child support payments "normally" travel in interstate channels, their
regulation under the Commerce Clause is unjustified because "the
CSRA does not require the use of channels or instrumentalities of
interstate commerce as a prerequisite to federal regulation." See
infra Part I.C. We find this argument infirm. Whether the CSRA
does or does not require delinquent parents to use the channels or
instrumentalities of interstate commerce is wholly irrelevant. The
dissent's position belies its reluctance to accept the economic and
practical realities incident to the collection of child support
payments involving a parent and child living in different states.
It stretches our collective imaginations to summon one example when
compliance with child support orders will not "require the
regular movement of money and communications across state lines."
Bongiorno, 106 F.3d at 1032. Indeed, the custodial parent's
attempts to collect past due support will involve the mail,
telephone, and telegraph. See United States v. Nichols, 928 F.
Supp. 302, 312 (S.D.N.Y. 1996), aff'd., No. 96-1742, 1997 WL 28004
(2d Cir. May 23, 1997) (unpublished). And the delinquent parent's
payment of that support will involve the same. So, while "the
record [may not] demonstrate that the child support order in the
instant case required Mr. Bailey to use" interstate channels, see infra Part I.C., we are hard pressed to imagine either how Ms.
Bailey would seek collection of (from Texas), or how Mr. Bailey
[End Page 8]
transaction could be the mail, a wire, an electronic transfer of
funds, or some other interstate channel. See Mussari, 95 F.3d at
790; see also Nichols, 928 F. Supp. at 314. Regardless of the
mechanism used, the payment obligation and the payment itself will
be placed in the flow of interstate commerce as they invoke the
channels or instrumentalities of commerce among the several
states.5 Bailey's situation illustrates this point: a resident of
Tennessee, Bailey can satisfy his court-ordered support obligation
to his child in Texas only by making payments that will cross state
lines. His payment, therefore, must of necessity invoke interstate
transportation routes. Congressional authority will continue to
would send or have sent (from Tennessee), the court-ordered child support payments without invoking the channels or instrumentalities
of interstate commerce.
We admit confusion at the dissent's insistence on invoking
Lopez as authority in contradiction to our position. The dissent
[u]nlike statutes that contain a jurisdictional
nexus element "˜which would ensure, through case-by-
case inquiry, that the [activity] in question
affects interstate commerce,' Lopez, 115 S. Ct. at
1631, the CSRA regulates every interstate
obligation, without exception.
By its express terms, therefore, the CSRA does not
regulate the use of the channels or
instrumentalities of interstate commerce, but
indiscriminately regulates all child support
See infra Part I.C.
First, we reiterate that Lopez is inapplicable to our discussion
today as it involves solely the interpretation of the
"substantially affects" category, which we decline to invoke here
as a constitutional justification for the CSRA. Second, in any
event, Lopez is readily distinguishable. Whereas the Gun-Free
School Zones Act offered no means by which courts could ensure that
a nexus between the regulated activity and interstate commerce
existed, the CSRA expressly limits its reach to those child support
debts that cross state lines. See Bongiorno, 106 F.3d at 1033;
Nichols, 928 F. Supp. at 312-13.
[End Page 9]
exist over defendants in CSRA litigation as long as the transaction
contemplated by the state court order flows in interstate
commerce.6 See, e.g., Associated Press v. NLRB, 301 U.S. 103
(1937) (holding that the Associated Press's not-for-profit
newsgathering activities "amount[ed] to commerical intercourse . .
. within the meaning of the Constitution" because it "involve[d]
the constant use of channels of interstate . . . communication"),
cited in Camps Newfound/Owatonna, Inc. v. Town of Harrison, No. 94-
1988, 1997 WL 255351, at *10 (U.S. May 19, 1997).
As to the second category, the child support obligation itself
is a thing of commerce that has acquired an interstate character.7
That the CSRA is invoked whether the noncustodial parent
flees across state lines to avoid his payment obligation or the
noncustodial parent takes advantage of the custodial parent and
child's movement out-of-state as occasion to stop payment is
irrelevant in assessing the constitutionality of the CSRA. Either
circumstance "takes advantage of the barriers to enforcement posed
by state lines." Nichols, 928 F. Supp. at 315. Although some
legislative history indicates the CSRA was motivated to punish a
noncustodial parent's flight to avoid payment, other legislative
history indicates that that situation was not the exclusive focus
of the CSRA. See H.R. Rep. No. 771, at 6. Moreover, the text of
the statute is not predicated upon the defendant's flight; it is
predicated simply on the willful failure of the noncustodial parent
to pay an interstate debt. In any event, Bailey's challenge to the
constitutionality of the CSRA on this ground must fail as applied
in the instant case because Bailey himself fled across state lines.
Defining "commerce" as "tantamount to "˜trade,'" the dissent
crisply states that child support obligations are not commerce:
"They are unilateral obligations, not bilateral commercial
transactions . . . . Consequently, child support payments do not
entail a quid pro quo, the defining characteristic of a commercial
transaction." See infra Part I.B. These are bald assertions
indeed, and the cases cited in support are unavailing. That
"commerce" has been defined to include "trade," see, e.g., Camps
Newfound/Owatonna, 1997 WL 255351, at *5; United States v.
Robertson, 115 S. Ct. 1732
, 1733 (1995) (per curium); United States
v. South-Eastern Underwriters Ass'n, 322 U.S. 533
, 539 (1944);
Jordan v. Tashiro, 278 U.S. 123
, 127-28 (1928); Welton v. Missouri,
[End Page 10]
See Bongiorno, 106 F.3d at 1032; Mussari, 95 F.3d at 790. This
debt continues to move in interstate commerce as long as the
obligor and obligee reside in different states and as long as the
debt actually exists. Both the contemplated payment and the
obligation, therefore, independently form the nexus to interstate
Challenging the Act's constitutionality under the first
category of Commerce Clause authority, Bailey next argues that by
regulating his breach of a state court order, the CSRA in actuality
impermissibly allows federal courts to exercise jurisdiction over
his failure to use interstate channels of commerce. Bailey
91 U.S. 275
, 280 (1875), does not compel the conclusion, as the
dissent would have us believe, that "commerce" is limited to trade.
Were we to support such a narrow definition, we would find
ourselves inimical to those cases holding, for example, that it is
interstate commerce to transport a woman from one state to another
in a common carrier, Hoke v. United States, 227 U.S. 308
(1913); to carry across a state line in a private automobile five
quarts of whiskey intended for personal consumption, United States
v. Simpson, 252 U.S. 465
, 467 (1920); and to transmit information
over interstate telegraph lines, Pensacola Tel. Co. v. Western
Union Tel. Co., 96 U.S. (6 Otto) 1, 11 (1877), all cited in South-
Eastern, 322 U.S. at 549.
The construction of the term "commerce" is a practical one and
embraces economic activity beyond that which is traditionally
considered commerce. See Lopez, 115 S. Ct. at 1636-37; see also
Swift & Co. v. United States, 196 U.S. 375
, 398 (1905). Child support obligations and their ensuing payments constitute economic
activity and are thus properly the subject of Commerce Clause
regulation. See, e.g., Parker, 108 F.3d at 31 ("Failure to make
required payments gives rise to a debt which implicates economic
activity."); Hampshire, 95 F.3d at 1003 (holding that court-ordered
obligation to pay money interstate is economic activity regulable
by Congress); Sage, 92 F.3d at 105 ("This [CSRA] case involves
matters that plainly meet [the definition in Gibbons v. Ogden, 22
U.S. (9 Wheat) 1, 189 (1824)] of commerce among the several
States. The Act presupposes intercourse, an obligation to pay
money, and the intercourse concerns more States than one.").
[End Page 11]
maintains that the CSRA, when reduced to its essence, is not a
regulation of already existing commerce but a jurisdictional
bootstrap enacted by Congress to force individuals to use
interstate commerce. These arguments lack merit.
[End Page 1]
Addressing Bailey's first contention, we point out that the
CSRA is not a regulation of the nonuse of interstate channels.
Bailey made use of the interstate channels, as contemplated by the
CSRA, the moment he moved away from Texas without fulfilling his
child support obligation.8 See Camps Newfound/Owatonna, 1997 WL
255351, at *5 (observing that "the transportation of persons across
state lines . . . has long been recognized as a form of
"˜commerce'." (citing Edwards v. California, 314 U.S. 160
, 172 & n.1
(1941) (noting that "[i]t is immaterial whether or not the
transportation is commercial in character"))). He himself thereby
placed the debt in the flow of interstate commerce. Bailey,
therefore, is not doing nothing. Moreover, by failing to pay his
debt, he is willfully violating a state court order requiring him
to do something, viz., to consummate an interstate transaction.
His delinquency serves only to frustrate this consummation. The
"By this reasoning," the dissent conjectures, "any person
moving to another state ipso facto federalizes all his financial
obligations, and "˜utilizes' the channels of interstate commerce,
merely by crossing a state line." See infra note 12. Our opinion
today holds nothing of the sort, and the dissent's attempt to
characterize it otherwise is tortured. Our opinion does not stand
for the proposition that all interstate financial obligations are subject to federal regulation but only that congressional attempts
at the federal enforcement of such obligations are, once state
initiatives have failed.
[End Page 12]
CSRA, designed to address this problem, seeks to prevent the
frustration of an interstate commercial transaction that otherwise
would have occurred absent the defendant's dereliction. It is thus
subject to federal control for that reason. We agree with the
Second Circuit that "[i]f Congress can take measures under the
Commerce Clause to foster potential interstate commerce, it surely
has power to prevent the frustration of an obligation to engage in
commerce." Sage, 92 F.3d at 105-06 (holding CSRA constitutional on
grounds that it is valid regulation of instrumentalities of, or
things or persons moving in, interstate commerce); accord
Hampshire, 95 F.3d at 1003. Supreme Court precedent supports this
In Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282
(1921), the defendant, a Kentucky farmer, contracted with a
Tennessee corporation to deliver wheat via rail cars to the
corporation's Tennessee flour mill. The farmer sent some wheat but
refused to deliver the rest, and the flour mill sued in Kentucky
state court for breach of contract. Id. The farmer insisted the
contract was invalid insofar as the plaintiff had failed to satisfy
a Kentucky statute imposing conditions on out-of-state corporations
contracting with local entities. Id. Rejecting this defense, the
Court held that the state statute did not afford the farmer relief
because it was "repugnant to the commerce clause" insofar as the
contract was "a part of interstate commerce, in which the plaintiff
lawfully could engage without any permission from the state of
Kentucky." Id. at 292-93. The Court therefore rejected, on
[End Page 13]
Commerce Clause grounds, the farmer's attempt to frustrate the
satisfaction of his obligation to pay on the interstate contract.
Although the instant case involves an obligation arising from
a court order, not a contract, the premise is the same: as was
true of the farmer's contractual obligation, Bailey's obligation to
send money across state lines immerses him in commerce among the
several states. See Sage, 92 F.3d at 106; United States v. Lewis,
936 F. Supp. 1093
, 1097 (D.R.I. 1996) (characterizing CSRA as
statute that essentially penalizes the failure to pay an interstate
debt, and citing First Circuit case holding that debt collection
directly involves interstate commerce (citation omitted)); see also
Sonneborn Bros. v. Cureton, 262 U.S. 506
, 515 (1923) (holding that
contracts for interstate sale and delivery of oil are "transactions
[that] are interstate commerce in its essence"). Furthermore, it
cannot be overlooked that if we were to accept Bailey's nonuse
reasoning, "Congress would be permitted to regulate parents who
underpay their required child support but not parents who fail to
pay their required child support at all. Such an interpretation is
unfathomable." Lewis, 936 F. Supp. at 1097.
We pause to note that even if Congress sought, through the
CSRA, to regulate the nonuse of interstate channels, it would still
be within its constitutional command to do so. The Supreme Court
has often held, in several contexts, that the defendant's nonuse of
interstate channels alone does not shield him from federal purview
under the Commerce Clause. In Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241
, 250 (1964), the Court upheld Commerce
[End Page 14]
Clause jurisdiction over a local motel that failed to engage in
interstate commerce when it refused to rent rooms to black guests.
The Court held that by failing to rent the rooms, the hotel
inhibited black travelers from crossing state lines and thus
obstructed interstate commerce that otherwise would have occurred.
Id. at 253. In Standard Oil Co. v. United States, 221 U.S. 1
(1911), the Court upheld the Sherman Act, 15 U.S.C. §§ 1, 2, as
permissible congressional action under the Commerce Clause. The
Sherman Act prohibits restraints of trade and obstructions of
interstate commerce in order to facilitate commerce that otherwise
would occur absent the defendant's monopolistic behavior. Finally,
in United States v. Green, 350 U.S. 415
, 420 (1956), the Court
found constitutional the Hobbs Act, 18 U.S.C. § 1951, which
punishes "interference with interstate commerce by extortion,
robbery or physical violence [by] . . . outlaw[ing] such
interference "˜in any way or degree.'" To accept Bailey's nonuse
argument would mean, as emphasized by the Second Circuit, that
"Congress would have no power to prohibit a monopoly so complete as
to thwart all other interstate commerce in a line of trade[;]" or
to punish under the Hobbs Act "someone who successfully prevented
interstate trade by extortion and murder." Sage, 92 F.3d at 105.9
Our position should not be taken to support "the more radical
proposition that Congress is empowered to regulate the passive
failure of individuals to engage in interstate commerce," see infra
note 15, as the dissent argues, for we say nothing of the sort.
The cases cited herein hold that Congress has the power under the
aegis of the Commerce Clause to prevent the obstruction of
commerce. Bailey's "intentional refusal to satisfy [his] debt is
as much an obstruction of commerce between the states as any act"
made unlawful by the public accommodations provisions of the Civil
[End Page 15]
Moreover, we disagree with those who attempt to distinguish
these cases as concerned with something more traditionally
commercial than the payment of child support obligations. The
payment of support obligations is indeed commercial; it involves
the transfer of money from one hand to another. In fact, nothing
could be more commercial.10 That the underlying reason for the
obligation relates to a matter of domestic relations does not
detract from this position.
[End Page 2]
In response to Bailey's jurisdictional bootstrap argument, we
emphasize that Congress did not impose the underlying obligation to
pay child support. The CSRA applies only when the defendant has
violated a state court order imposing upon him that obligation.
The state court order, therefore, not the CSRA, obliges Bailey to
pay, and his volitional movement out of state, in tandem with his
Rights Act of 1964, by the Sherman Act, or by the Hobbs Act. See
Mussari, 95 F.3d at 790.
The dissent impugns this statement as ipse dixit and as an
invitation to Congress "to regulate all financial transactions."
See infra Part I.B. its attack is a mischaracterization of our
holding, which is limited only to the interstate payment and
collection of child support obligations and nothing more.
Furthermore, we pause here to note that the Supreme Court has
explained that commerce exists among the several states where there
is "a "˜continuous and indivisible stream of intercourse among the states' involving the transmission of large sums of money and
communications by mail, telephone, and telegraph." United States
v. Shubert, 348 U.S. 222
, 226 (1955) (quoting South-Eastern, 322
U.S. at 541 (holding that insurance business falls within aegis of
Commerce Clause because it is marked by, inter alia, collection of
premiums and payments of policy obligations)); accord Bongiorno,
106 F.3d at 1031 (holding CSRA constitutional under Commerce
Clause); United States v. Hopper, 899 F. Supp. 389
, 393 (S.D. Ind.
[End Page 16]
willful failure to fulfill that obligation, places that obligation
in interstate commerce. Congress has simply brought its Article I,
section 8 powers to bear on an activity which now carries the
mettle of an interstate transaction. For the reasons above, we
hold the CSRA falls within Congress's Commerce Clause authority. II
Bailey next argues that the CSRA transgresses state
sovereignty by running afoul of the domestic relations exception to
diversity jurisdiction, an exception that has not received express
constitutional acceptance but nonetheless is respected by federal
courts. See, e.g. Ankenbrandt v. Richards, 504 U.S. 689
(1992); Barber v. Barber, 62 U.S. (21 How.) 582 (1858). The
domestic relations exception obtains from the diversity
jurisdiction statute, 28 U.S.C. § 1332, see Ankenbrandt, 504 U.S.
at 700-01, and therefore it has no application where, as here,
there exists an independent basis for federal jurisdiction. The
instant action is based not on diversity but on an express grant of
jurisdictional authority under 28 U.S.C. § 1331. Because this case
clearly arises under this Court's federal question jurisdiction,
the domestic relations exception presents no bar.
Moreover, any analogy to the domestic relations exception
fails. Federal courts have long divested themselves of
jurisdiction over only the issuance of divorce, alimony, and child
custody decrees, finding that such domestic relations matters are
within the unique province of state courts to decide. See id. at
[End Page 17]
703-04 (articulating policy considerations behind exception). The
CSRA in no way endeavors to regulate this hallowed ground;11 it
seeks merely to enforce a child support order already promulgated
by a state court. The only aspect of domestic relations implicated
in a CSRA litigation is the family law character of the underlying
support order. That alone, however, is insufficient to invoke the
domestic relations exception to federal courts' otherwise proper
jurisdiction. See id. at 706-07 (holding that domestic relations
exception did not bar a case involving alleged sexual and physical
abuse committed by plaintiff's former husband against their
children because case did not involve issuance of divorce, alimony,
or child custody decree); see also Lewis, 936 F. Supp. at 1106
(citing cases involving underlying divorce or child custody
proceedings in which federal courts exercised jurisdiction despite
domestic relations exception because actual claim being litigated
did not involve familial relations).
Our decision today does not stray from our prior holding in
Rogers v. Janzen, 891 F.2d 95
(5th Cir. 1989). Rogers is a
diversity action between former spouses in which the plaintiff
sought damages for emotional distress suffered when her former
The dissent presents no support for its untenable position
to the contrary. Apparently ignoring our discussion here, the
dissent contends that the CSRA intrudes upon matters of family law,
thereby "subverting the federal system." See infra Part I.A. The
dissent fails to recognize, however, that the imposition of federal
penalties for the failure to pay child support does not occasion a
"federal intervention in the field of family law," as it claims,
but rather is akin to enforcement actions "over which the federal
courts have long accepted jurisdiction." United States v. Kegel,
916 F. Supp. 1233
, 1235 (M.D. Fla. 1996).
[End Page 18]
husband allegedly sexually abused their daughter and denied her
access to the child. Id. at 96. We held that although the
plaintiff's claims sounded in tort and thus did "not fall squarely
within the traditional scope of the field of domestic relations,"
federal court resolution was inappropriate because hearing the
claim would necessitate that type of inquiry into the marital
relationship better conducted by state courts. Id. at 98. We
explained that at the heart of the plaintiff's suit was the
allegation that her former husband had sexually abused their
daughter. Id. Federal court resolution of this issue would
therefore require relitigation of factual determinations made by
the state court prior to its custody award and thus create the risk
of incongruous federal and state decrees. Id.
Significantly, we suggested that had the plaintiff's action
been "one in which the court need only decide whether an already-
set custody or child support award has been complied with," federal
jurisdiction would have been proper. Id. (internal quotations
omitted). The case before us involves just that. Federal courts
need not resuscitate final state court proceedings to enforce the
underlying child support order. We need only press upon Bailey the
great weight of the federal courts in an effort to compel him to
fulfill his legal obligations under state law.
[End Page 1]
Bailey next argues that the CSRA offends principles of
federalism and comity. He insists the Act calls for federal review
[End Page 19]
and application of state court orders and thereby increases the
possibility of federal courts upsetting the federal-state balance
of power established by the Constitution. The district court in
Mussari illustrated the alleged offense to our federal structure
A defendant being prosecuted under the CSRA could
arguably defend the action by challenging the
validity of the underlying state court support order.
Either the federal court would be forced to review
the support order, or stay the pending federal
criminal case while the support order is collaterally
attacked in state court. Neither of these scenarios
is desirable in light of the principles of comity and
the speedy trial provisions federal courts are bound
by in criminal matters.
United States v. Mussari, 894 F. Supp. 1360
, 1367 (D. Ariz. 1995),
rev'd., 95 F.3d 789
(9th Cir. 1996), cert. denied, 117 S. Ct. 1567
(1997). We adopt the succinct response of the court in United
States v. Ganaposki, 930 F. Supp. 1076
, 1083 (M.D. Pa. 1996):
[T]he CSRA goes no further than the enforcement of
state court decrees and is not an attempt by Congress
to legislate with respect to the amount of child
support payments in any particular case; any ruling
that support must be paid and the amount to be paid
is left to the states.
A CSRA prosecution turns only on the defendant's violation of a
state court order. It does not turn on the fairness of the order,
the reasons underlying the state court's issuance of the order, the
defendant's relationship with his children or former spouse, or any
other matter involving relitigation of a family law issue.
Moreover, there is no language in the CSRA allowing the federal
court to look beyond the four corners of the state child support
order or permitting the defendant to collaterally attack the state
[End Page 20]
court order in federal court.
[End Page 2]
Bailey also questions whether Congress, in enacting the CSRA,
has intruded upon the states' traditional dominion to enact
criminal laws. In the interests of federalism and comity, Bailey
disputes Congress's authority to criminalize that behavior, viz.
the willful failure to pay court-ordered child support, which some
states have chosen specifically not to address, for whatever
reasons. Moreover, he contends that when Congress criminalizes
conduct already condemned by a state, as Texas has done here, see
Tex. Penal Code Ann. § 25.05 (West 1993), it insults the delicate
balance between federal and state criminal jurisdiction. See,
e.g., United States v. Enmons, 410 U.S. 396
, 411-12 (1973).
Bailey's argument fails to recognize that principles of
federalism and comity are not compromised when the regulated
activity falls inside constitutionally-defined perimeters of
congressional control. Concluding that the CSRA survives a
Commerce Clause challenge, we cannot now say Congress has
improperly arrogated the state's prerogative to penalize the
willful failure to pay child support; Congress draws its authority
to criminalize the same from its plenary powers under the Commerce
Bailey next argues that the CSRA tramples upon the state's
sovereign right to legislate in matters of family law and thus
contravenes the Tenth Amendment. We find no merit in this
[End Page 21]
position. The Tenth Amendment provides that "the powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people." U.S. Const. amend. X. "In a case . . . involving the
division of authority between federal and state governments, the .
. . inquiries [under the Commerce Clause and the Tenth Amendment]
are mirror images of each other. If a power is delegated to
Congress in the Constitution, the Tenth Amendment expressly
disclaims any reservation of that power to the States; if a power
is an attribute of state sovereignty reserved by the Tenth
Amendment, it is necessarily a power the Constitution has not
conferred on Congress." New York v. United States, 505 U.S. 144
When Congress enacted the CSRA, it acted pursuant to its
delegated powers under the Commerce Clause. It did not usurp the
state's police powers to regulate purely intrastate matters of
family or criminal law. Penalizing those who willfully fail to
comply with child support obligations, the CSRA regulates purely
private conduct and makes no attempt to regulate states as states.
See id. In fact, the legislative history indicates the CSRA is
designed to aid state efforts, which unfortunately often are
unsuccessful, to enforce interstate support orders. The CSRA in no
way intends to supplant them. Bailey's Tenth Amendment argument
therefore fails. CONCLUSION
For the reasons discussed above, we find the constitutional
[End Page 22]
objections unavailing. The CSRA does not exceed Congress's powers
under the Commerce Clause nor does it encroach on matters within
the province of state sovereignty. Federal jurisdiction is
therefore proper. We accordingly REVERSE and REMAND.
[End Page 23]
JERRY E. SMITH, Circuit Judge, dissenting:
In United States v. Lopez, 514 U.S. 549
, 115 S. Ct. 1624
(1995), the Court reaffirmed the fundamental principle that the
Constitution established a national government of enumerated and
limited powers. Accordingly, the Court emphasized that the power
granted to Congress under the Commerce Clause is subject to strict
limits, and it is the duty of the courts to police those limits and
thereby preserve the federal system.
Therefore, laws enacted under the aegis of the Commerce Clause
"'must be considered in the light of our dual system of government
and may not be extended so as to embrace effects upon interstate
commerce so indirect and remote that to embrace them, in view of
our complex society, would effectually obliterate the distinction
between what is national and what is local and create a completely
centralized government.'" 115 S. Ct. at 1628-29 (quoting NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1
, 37 (1937)). Lopez is a
landmark, signaling the revival of federalism as a constitutional
principle, and it must be acknowledged as a watershed decision in
the history of the Commerce Clause.12
The lessons of Lopez are lost, however, in the instant case.
Rather than rigorously enforcing the limitations on federal power,
This court has recognized that Lopez is a landmark in constitutional law,
even if the judges have disagreed as to the precise boundaries of the Commerce
Clause. Compare United States v. Kirk, 105 F.3d 997
, 999 (5th Cir. 1997) (en banc)
(opinion of Higginbotham, J.) (recognizing that "'if Lopez means anything, it is
that Congress's power under the Commerce Clause must have some limits'") (quoting
United States v. Rybar, 103 F.3d 273
, 291 (3d Cir. 1996) (Alito, J., dissenting))
with id. at 1010 (opinion of Jones, J.) (recognizing that Lopez establishes the
"outer boundary on Congress's criminal jurisdiction under the Commerce Clause").
as Lopez commands, the panel majority upholds the constitutionality
of a statute that contains no reference to interstate commerce,
regulates an activity that is not commercial, and invades the field
of family law, a traditional area of exclusive state sovereignty.
Therefore, I conclude that the Child Support Recovery Act ("CSRA")
flouts the limitations on the Commerce Clause, flies in the face of
Lopez, and threatens to "'obliterate the distinction between what
is national and what is local and create a completely centralized
government.'" Id. at 1629.
This is a difficult area, and the panel majority has made a
diligent effort to reconcile the relevant jurisprudence as it
applies to this case. Disagreeing with the majority's conclusion,
however, I respectfully dissent.
As the Lopez Court recognized, see id. at 1626-27, the seminal
case describing the commerce power is Gibbons v. Ogden, 22 U.S.
(9 Wheat.) 1 (1824), in which Chief Justice Marshall, writing for
the Court, defined the appropriate methodology for reviewing an act
of Congress as asking (1) whether the subject of the legislation is
commerce; (2) if so, whether the commerce affects other states; and
(3) whether the legislation regulates the commerce. Id. at 189-97.
In Lopez, the Court identified three broad categories of activities
that Congress may regulate under the Commerce Clause. First, it
may regulate the use of the channels of interstate commerce.
Second, it is empowered to regulate and protect the
[End Page 25]
instrumentalities of interstate commerce, or persons or things in
interstate commerce. Finally, it may regulate those activities
that "substantially affect" interstate commerce. Id. at 1629-30.
None of these categories of commerce legislation, however,
encompasses the CSRA.
Although the authority to regulate intrastate activities that
"substantially affect" interstate commerce has provided the primary
source for the dramatic expansion of federal power in this century,
as well as the foundation for recent Commerce Clause jurisprudence,
the majority wisely declines to defend the constitutionality of the
CSRA by claiming that unpaid child support "substantially affects"
interstate commerce. In Lopez, the Supreme Court disavowed the use
of speculative economic theories to prove that a given activity
"substantially affects" interstate commerce, as the employment of
such theories would permit Congress to "regulate any activity that
it found was related to the economic productivity of individual
citizens: family law (including marriage, divorce, and child
custody), for example." Id. at 1632. Yet that is precisely what
the CSRA purports to do. Consequently, the constitutionality of
the CSRA cannot be sustained under the "affecting commerce" prong.
The "affecting commerce" doctrine is a judicial invention,
rather than a faithful interpretation of the constitutional text.
The Commerce Clause authorizes Congress to regulate commerce among
the several states, not an activity that affects commerce.
[End Page 26]
Likewise, Gibbons explains that the test of a statute enacted under
the Commerce Clause is whether the legislation regulates commerce,
not whether it regulates some activity that affects commerce.
Indeed, Gibbons asks whether the commerce affects other states, not
whether the activity affects interstate commerce. See Gibbons,
22 U.S. at 194-95.13 Nevertheless, the Supreme Court has presided
over a dramatic expansion of the Commerce Clause in this century,
authorizing the federal government to regulate any activity that
"substantially affects" interstate commerce. See, e.g., United
States v. Darby, 312 U.S. 100
, 118-23 (1941); Wickard v. Filburn,
317 U.S. 111
, 125 (1942).14
In Lopez, the Court acknowledged that the "affecting commerce"
doctrine is a legitimate interpretation of the Commerce Clause only
insofar as it preserves some limit on the scope of federal power,
vindicating the principle that the Constitution established a
government of enumerated powers and preserving the distinction
between that which is truly national and that which is indeed
local. Id. at 1634. To illustrate the limitations of the commerce
power, the Court disavowed any use of the "affecting commerce"
doctrine that would justify federal intervention in the field of
Neither the constitutional text nor Gibbons uses the term "interstate,"
but I will employ it, as Lopez and other construing opinions have used it almost
See Lopez, 115 S. Ct. at 1642-50 (Thomas, J., concurring) (discussing
the evolution of the "affecting commerce" doctrine).
[End Page 27]
family law. See id. at 1632.15 Yet the CSRA occasions just such
an intrusion, subverting the federal system by imposing federal
penalties for the failure to pay state-ordered child support.
The Lopez Court warned that if Congress can invoke the
"affecting commerce" doctrine to invade traditional areas of state
sovereignty, such as family law, "we are hard-pressed to posit any
activity by an individual that Congress is without power to
regulate." Id. at 1632. Accordingly, the Court recognized that
such an expansive interpretation of the Commerce Clause "would bid
fair to convert congressional authority under the Commerce Clause
to a general police power of the sort retained by the States." Id.
Because the Supreme Court has abjured the federal regulation
of family law under the guise of the "affecting commerce" doctrine,
the panel majority is forced to defend the constitutionality of the
CSRA by claiming that the act satisfies the first two prongs of
Lopez. But federal criminalization of the failure to make child
support payments regulates neither the channels nor the
instrumentalities of interstate commerce, nor persons or things in
The CSRA imposes criminal penalties on parents who fail to
satisfy an interstate child support obligation. If the payment of
Indeed, even the dissenters in Lopez agreed that family law is beyond the
power of Congress to regulate under the Commerce Clause. See, e.g., Lopez, 115 S.
Ct. at 1661 (Breyer, J., dissenting).
[End Page 28]
child support constituted "commerce," therefore, it would
necessarily follow that interstate child support payments are
"things in interstate commerce," within the meaning of Lopez. For
purposes of the Commerce Clause, however, child support payments
are not "commerce."
The majority dismisses this objection with a wave of the hand,
assuming that court-ordered child support payments are "commerce":
"The payment of support obligations is indeed commercial; it
involves the transfer of money from one hand to another. In fact,
nothing could be more commercial." Not surprisingly, the majority
can offer no authority to support this ipse dixit, which would
permit Congress to regulate all financial transactions. Such an
unlimited definition would swell the Commerce Clause far beyond the
traditional context of "commerce."16 In fact, "commerce" requires
more than a mere transfer of wealth, as the history of Commerce
Clause jurisprudence demonstrates.
In Gibbons, Chief Justice Marshall rejected a narrow
definition that would limit the term "commerce" to traffic, buying
and selling, and the interchange of commodities. Id. at 189.
Instead, Gibbons defined "commerce" broadly to include "the
commercial intercourse between nations, and parts of nations." Id.
at 189-90. Even under this broad definition, however, the Commerce
Clause does not grant Congress carte blanche. To the contrary,
Congress may regulate only commercial intercourse, so its power is
Under this definition, for example, Congress would be free to regulate
alimony, wills and estates, gift promises, and charitable contributions, invading
traditional areas of state sovereignty under the guise of the Commerce Clause.
[End Page 29]
confined to the regulation of trade, business transactions, and
economic activity.17 Therefore, in order to constitute a "person
or thing in interstate commerce," subject to direct regulation
under the Commerce Clause, a person or thing must be engaged in
We should interpret terms such as "commerce" in the context of
the common understanding of them at the time they were written. It
is axiomatic that the word "commerce" is, and has always been,
tantamount to "trade," the exchange of goods and services by
purchase and sale. See, e.g., BLACK'S LAW DICTIONARY 269 (6th ed.
1990); WEBSTER'S NEW INT'L DICTIONARY 538 (2d ed. 1958). The
cornerstone of the commerce power, ever since the founding era, has
been the power to regulate trade. "Whatever other meanings
'commerce' may have included in 1787, the dictionaries,
encyclopedias, and other books of the period show that it included
trade: business in which persons bought and sold, bargained and
contracted. And this meaning has persisted to modern times."
See Jordan v. Tashiro, 278 U.S. 123
, 127-28 (1928) (noting that "for more
than a century it has been judicially recognized that in a broad sense [commerce]
embraces every phase of commercial and business activity and intercourse"); Welton
v. Missouri, 91 U.S. 275
, 280 (1875) (noting that commerce "comprehends intercourse
for the purposes of trade in any and all its forms, including the transportation,
purchase, sale, and exchange of commodities between the citizens of our country and
the citizens or subject of other countries, and between the citizens of different
This is not to say that non-commercial activities are beyond the reach of
the Commerce Clause, but merely that they are not interstate commerce per se and
cannot be regulated directly as "things in interstate commerce." To regulate such
non-commercial activities, therefore, Congress must legislate indirectly, pursuant
to the Lopez categories (e.g., the channels of interstate commerce, the
instrumentalities of interstate commerce, or activities that "substantially affect"
interstate commerce"). In this respect, Lopez is consistent with prior caselaw in
departing from Gibbons and from the constitutional text in that, as I have pointed
out, neither the text nor Gibbons refers to activity that affects interstate
[End Page 30]
United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533
Indeed, the essential characteristic of "commerce" continues
to be its relationship to business and trade. The Supreme Court
recently reaffirmed that a party is "in commerce" when it is
"'directly engaged in the production, distribution, or acquisition
of goods and services in interstate commerce.'" United States v.
Robertson, 115 S. Ct. 1732
, 1733 (1995) (quoting United States v.
American Bldg. Maintenance Indus., 422 U.S. 271
, 283 (1975)).20 In
order to constitute "a thing in interstate commerce," therefore,
subject to direct regulation under the Commerce Clause, the subject
of federal regulation must be engaged in "commerce," which is
tantamount to "commercial intercourse" or "trade."
Child support payments, accordingly, are not "commerce." They
are unilateral obligations, not bilateral commercial transactions;
they do not involve trade; and they do not entail the purchase or
sale of goods or services. As the plain language of the statute
attests, the CSRA regulates only child support obligations required
pursuant to a court order or an order of an administrative process,
not a private contract. See 18 U.S.C. § 228(d)(1)(A). Therefore,
payment of child support is not conditioned on the performance of
See also Lopez, 115 S. Ct. at 1643 (Thomas, J., concurring) ("At the time
the original Constitution was ratified, 'commerce' consisted of selling, buying, and
bartering, as well as transporting for these purposes.").
Likewise, the Court recently observed that a party is deemed to be
"engaged in commerce" if it is a purchaser or provider of "goods and services."
Camps Newfound/Owatonna, Inc. v. Town of Harrison, No. 94-1988, 1997 WL 255351,
at *5 (U.S. May 19, 1997).
[End Page 31]
a reciprocal duty by the obligee, nor does it benefit the obligor.
Consequently, child support payments do not entail a quid pro quo,
the defining characteristic of a commercial transaction.
In short, child support payments include none of the elements
of commerce, but merely represent transfers of wealth pursuant to
a court order. Like the Gun Free School Zones Act invalidated in
Lopez, therefore, the CSRA is "a criminal statute that by its terms
has nothing to do with 'commerce' or any sort of economic
enterprise, however broadly one might define those terms." See
Lopez, 115 S. Ct. at 1630-31.
The conclusion that child support payments are not "commerce"
requires us to define the boundaries of the Commerce Clause,
distinguishing between "commercial" and "noncommercial" activities.
In Lopez, the Court acknowledged that distinctions between
"commercial" and "noncommercial" activities are often problematic
and may result in legal uncertainty in some cases. Id. at 1633.
Nevertheless, this uncertainty is inherent in the federal system,
and it is the duty of the courts to interpret the Constitution.
The Constitution mandates this uncertainty by withholding
from Congress a plenary police power that would authorize
enactment of every type of legislation. Congress has
operated within this framework of legal uncertainty ever
since this Court determined that it was the judiciary's
duty "to say what the law is." Any possible benefit from
eliminating this "legal uncertainty" would be at the
expense of the Constitution's system of enumerated
Id. (citations omitted). Accordingly, we cannot abdicate our duty
to draw lines and enforce the outer limits of the Commerce Clause,
even if this line-drawing occasions some legal uncertainty.
[End Page 32]
Fortunately, although it may be hard for courts to distinguish
between "commercial" and "noncommercial" activities in some cases,
this is not one of them. We need not invoke technical distinctions
to determine whether child support payments constitute "commerce,"
as these payments do not share the essential characteristic of
commerceSSthe relationship to trade and commercial intercourse.
Mindful of the legal uncertainty inherent in the definition of
"commerce," Justice Holmes once observed that "commerce among the
States is not a technical legal conception, but a practical one,
drawn from the course of business." Swift & Co. v. United States,
196 U.S. 375
, 398 (1905). Child support payments are outside the
"course of business" and cannot be defined as "commerce."
Accordingly, even under a practical interpretation of "commerce,"
interstate child support payments cannot reasonably be classified
as "things in interstate commerce."21
Having concluded that child support payments are not "things
in interstate commerce" and do not "substantially affect"
interstate commerce, I must consider the last possible ground for
I am at a loss to understand the suggestion that the child support
obligation itself, rather than the child support payments, might constitute a "thing
in interstate commerce." While an intangible right, such as a commercial debt, may
constitute the object of a commercial transaction, it is not a "thing" that "moves
in interstate commerce." To suggest otherwise is to transform the Commerce Clause
into an exercise in metaphysics.
Apparently, the majority means to suggest that the child support obligation is
interstate commerce per se and is therefore a "thing in interstate commerce." This
conclusion is belied, however, by the fact that child support payments are not
"commerce." Accordingly, the child support obligation cannot be a "thing in
[End Page 33]
regulation of child support payments under the Commerce Clause:
use of the channels or instrumentalities of interstate commerce.
The majority concludes that the CSRA constitutes a valid regulation
of such "channels" and "instrumentalities" because the statute
imposes criminal penalties only for the breach of interstate child
support obligations. I respectfully disagree.
The CSRA prohibits the willful failure to satisfy a child
support obligation "with respect to a child who resides in another
State." 18 U.S.C. § 228(a). By its express terms, the statute
regulates interstate transactions, not the channels or
instrumentalities of interstate commerce. There is no mention of
commerce, nor is there a jurisdictional nexus to interstate
commerce. Accordingly, the statute effectively requires only
diversity of citizenship among the parties, reducing what is often
called the "Interstate Commerce Clause"22 to nothing more than the
The majority agrees that mere diversity of citizenship is not
enough to authorize federal regulation under the Commerce Clause,
noting that such a rule "would unwittingly open the floodgates to
allowing Congress to regulate any and all activity it so desired,
even those activities traditionally reserved for state regulation,
so long as opposing parties are diverse." This defect is cured,
according to the majority, by the fact that the child support order
"can be satisfied normally by a payment that necessarily must move
See, e.g., Seminole Tribe v. Florida, 116 S. Ct. 1114
, 1125-27 (1996);
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163
, 192 (1989); Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130
, 154 (1982).
[End Page 34]
in interstate commerce." Consequently, the majority concludes,
interstate child support payments necessarily invoke the channels
of, and flow in, interstate commerce. Not so.
Regardless of whether interstate child support payments will
"normally" travel in interstate channels (as the majority assumes),
the CSRA does not require the use of channels or instrumentalities
of interstate commerce as a prerequisite to federal regulation.
Unlike statutes that contain a jurisdictional nexus element "which
would ensure, through case-by-case inquiry, that the [activity] in
question affects interstate commerce," Lopez, 115 S. Ct. at 1631,
the CSRA regulates every interstate obligation, without exception.
By its express terms, therefore, the CSRA does not regulate
the use of the channels or instrumentalities of interstate
commerce, but indiscriminately regulates all interstate child
support payments. Accordingly, the CSRA does not constitute a
permissible regulation of the channels of interstate commerce. See
United States v. Kirk, 105 F.3d 997
, 1008 (5th Cir. 1997) (en banc)
(opinion of Jones, J.) (stating that the first Lopez category
involves statutes that are distinguished by express jurisdictional
The constitutional significance of the jurisdictional nexus requirement
cannot be overstated. If an activity is commercial, the act of crossing state lines
makes it interstate commerce per se, subject to direct federal regulation. In such
cases, no express jurisdictional nexus must be included in the statute, because
there is no need to establish the constitutional predicate for federal regulation.
As I have noted, however, child support payments are not commercial, and hence are
not subject to direct federal regulation.
If an activity is not commercial, the mere act of crossing state lines does not
expose it to direct federal regulation, as it is not interstate commerce per se.
In order to justify federal regulation of such non-commercial activity, Congress
must provide an express jurisdictional nexus to interstate commerce. Such a
jurisdictional nexus provides the sole constitutional foundation for
[End Page 35]
Because the CSRA does not include an express jurisdictional
nexus requirement, but instead regulates all interstate child
support payments, it is constitutional only if state borders are
characterized as "channels" of interstate commerce, rendering all
Hence, as Lopez demonstrates, Congress may regulate the use of the channels or
instrumentalities of interstate commerce, or economic activities that "substantially
affect" interstate commerce, in order to justify the regulation of activities that
are not inherently commercial. The jurisdictional nexus is the source of this
constitutional justification. See, e.g., 18 U.S.C. § 1073 (prohibiting the use of
the channels of interstate commerce by flight to avoid prosecution or the obligation
to testify in court); 18 U.S.C. § 1201 (prohibiting the use of the channels of
interstate commerce to transport an abductee across state lines); 18 U.S.C. §§ 2312-
15 (prohibiting the shipment of stolen goods in interstate commerce); 18 U.S.C. §
1341 (prohibiting use of the mails to perpetrate fraud); see also United States v.
Orito, 413 U.S. 139
, 140 n.1 (1973) (noting that 18 U.S.C. § 1462 prohibits
transportation of obscene material in interstate commerce); Brooks v. United States,
267 U.S. 432
, 435 (1925) (noting that the National Motor Vehicle Theft Act prohibits
the transportation of stolen vehicles in interstate commerce); United States v.
Hill, 248 U.S. 420
, 422 (1919) (noting that the Reed Amendment prohibits
transportation of intoxicating liquor in interstate commerce); Caminetti v. United
States, 242 U.S. 470
, 491-92 (1917) (noting that the Mann Act prohibits the
transportation of women in interstate commerce for immoral purposes); Hoke v. United
States, 227 U.S. 308
, 317-18 (1913) (same).
If a federal statute includes such an express jurisdictional nexus, providing a
constitutional foundation for the act, the courts will not inquire into the motives
underlying congressional regulation of non-commercial activity. "'[T]he authority
of Congress to keep the channels of interstate commerce free from immoral and
injurious uses has been frequently sustained, and is no longer open to question.'"
Heart of Atlanta Motel v. United States, 379 U.S. 241
, 256 (1964) (quoting
Caminetti, 242 U.S. at 491); accord United States v. Darby, 312 U.S. 100
(1941). In the absence of such an express jurisdictional element, however, Congress
is not empowered to exercise a federal police power over non-commercial activities.
As I have explained, interstate child support payments are not "commerce," and
are not subject to direct federal regulation as interstate commerce per se.
Accordingly, the statute must require an express jurisdictional nexus to provide the
constitutional basis for federal regulation of this non-commercial activity. It
does not. The absence of an express jurisdictional nexus distinguishes the CSRA
from valid regulations of the channels and instrumentalities of interstate commerce.
Absent an express jurisdictional nexus, the CSRA is unconstitutional.
Finally, there is nothing in the present record to indicate whether any use of
interstate channels or instrumentalities was either contemplated or required. In
this regard, I very much question the panel majority's unusual statement that
"Bailey made use of the interstate channels, as contemplated by the CSRA, the moment
he moved away from Texas without fulfilling his child support obligation; he himself
thereby placed the debt in the flow of interstate commerce." By this reasoning, any
person moving to another state ipso facto federalizes all his financial obligations,
and "utilizes" the channels of interstate commerce, merely by crossing a state line.
[End Page 36]
interstate activity subject to federal legislation.24 The majority
is obligated to endorse this rationale, stating that "Bailey's
obligation to send money across state lines immerses him in
commerce among the several states." This definition, however,
pares the "Interstate Commerce Clause" to the "Interstate Clause,"
belying the claim that the CSRA is not solely a diversity statute.
Such an interpretation of the Commerce Clause would grant Congress
carte blanche to regulate all transactions among diverse parties,
"opening the floodgates" to the creation of a federal police
Furthermore, this court may not cure the constitutional defect
in the CSRA by taking "judicial notice" that child support payments
must necessarily travel in the channels of interstate commerce.
There is nothing in the record to demonstrate that child support
payments must necessarily use such channels, nor does the record
demonstrate that the child support order in the instant case
As stated above, only activities that are inherently commercial may be
regulated solely on the basis that the subject of federal regulation has crossed state lines, rendering it interstate commerce per se. Non-commercial activities, such as child support payments, are subject to federal regulation only if they
use a channel or instrumentality of interstate commerce, or "substantially
affect" interstate commerce. Absent a jurisdictional nexus, therefore, the CSRA
is constitutional only if we assume that state borders are, by definition,
"channels" of interstate commerce. This expansive interpretation would
effectively nullify the phrase "channels of interstate commerce," however, which
necessarily implies something less than state borders, and would expose all
interstate activity to a federal police power.
Although it traces its lineage to cases such as Champion v. Ames,
188 U.S. 321
(1903) (upholding the constitutionality of the Lottery Act, basing
the power to prohibit the interstate sale of lottery tickets on the purpose,
i.e., to proscribe evil conduct), the notion of a Commerce Clause-based federal
police power gained full steam in Perez v. United States, 402 U.S. 146
which upheld application of a federal anti-loan-shark statute to local activities
without any showing of an interstate nexus or effect. This jurisprudence
unfortunately blurred the distinction between regulating commerce and exercising
the police power to eliminate "evils" that threaten the general welfare, i.e.,
the distinction between a regulatory offense and creating a "true" crime.
[End Page 37]
required Mr. Bailey to use them. To assume that interstate child
support payments must necessarily utilize the channels or
instrumentalities of interstate commerce is to beg the question,
abdicating the judicial obligation to enforce the outer limits of
the Commerce Clause. See Lopez, 115 S. Ct. at 1633.
Although we strive to interpret statutes in order to avoid an
unconstitutional construction, it is also true that this canon of
construction is "'not a license for the judiciary to rewrite
language enacted by the legislature.'" Chapman v. United States,
500 U.S. 453
, 464 (1991) (quoting United States v. Monsanto, 491 U.S. 600
, 611 (1989)). The CSRA does not regulate the channels or
instrumentalities of interstate commerce, and therefore it exceeds
the Commerce Clause. This court may not cure the constitutional
defect by assuming the necessary relationship to interstate
commerce and thereby abdicating its constitutional duty.
The CSRA is redolent of a police power, not a responsible and
reflective exercise of legislative authority appropriate to a
government of enumerated powers. Accordingly, the CSRA is not a
constitutional exercise of the commerce power. To uphold the CSRA,
"a purely criminal law, with no nexus to interstate commerce, whose
enforcement intrudes upon traditional police powers of the states,
would convert the commerce power into a reserved 'general federal
police power.'" Kirk, 105 F.3d at 1016 (opinion of Jones, J.).26
Because I conclude that the absence of a jurisdictional nexus fatally
undermines the constitutionality of the CSRA, I do not reach the question whether
Congress is empowered to regulate the failure to engage in interstate commerce.
Nevertheless, I must express my misgivings about this creative interpretation of
the Commerce Clause.
[End Page 38]
The CSRA contains no express jurisdictional nexus requirement,
regulates an activity that is not commercial, and invades the field
of family law, a traditional area of exclusive state sovereignty.
Therefore, with the revival of federalism as a constitutional value
in Lopez, I conclude that the statute cannot survive constitutional
scrutiny. So, I respectfully dissent from the diligent efforts of
the panel majority to confront this difficult issue of
It is counterintuitive to suppose that by empowering Congress "to regulate
commerce . . . among the several states," the framers of the Constitution
envisioned federal criminal prosecutions for the failure to utilize an interstate
instrumentality, i.e., the failure to send a support payment (whether through the
mails or by some other interstate means), as a valid regulation of the use of the
channels of interstate commerce. This interpretation turns the original
understanding of the Commerce Clause on its head.
Furthermore, the cases cited by the majority do not support the proposition
that Congress is authorized to regulate the failure to use channels of interstate
commerce. Upon close inspection, each case holds that Congress may regulate the
active obstruction of interstate commerce and interference with the flow of
interstate commerce. Such protective legislation is fundamentally different from
the more radical proposition that Congress is empowered to regulate the passive
failure of individuals to engage in interstate commerce. See, e.g., Heart of
Atlanta Motel, 379 U.S. at 253 (upholding the Civil Rights Act of 1964 because
Congress may prohibit racial discrimination that obstructs the flow of interstate
commerce); United States v. Green, 350 U.S. 415
, 420 (1956) (upholding the Hobbs
Act because Congress may prohibit violent actions that interfere with interstate
commerce); Standard Oil Co. v. United States, 221 U.S. 1
, 68 (1911) (upholding
the Sherman Act because Congress may prohibit restraints of trade that obstruct
Finally, insofar as these protective statutes regulate activities that
obstruct the flow of interstate commerce, they are properly classified under the
third prong of Lopez, which permits Congress to regulate economic activities that
"substantially affect" interstate commerce. While the obstruction of interstate
commerce is not a "use" of the channels of interstate commerce, under the common
meaning of "use," such interference does exert a "substantial effect" on
commerce. I have already explained, however, that the CSRA cannot be upheld as
an activity that "substantially affects" interstate commerce, and the majority
makes no effort to defend the act under this theory. Accordingly, the cases
cited by the majority do not demonstrate that Congress is empowered to regulate
the failure to use channels of interstate commerce.
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