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UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50721

UNITED STATES OF AMERICA

Plaintiff-Appellant,

VERSUS

KEITH DOUGLAS BAILEY

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

June 12, 1997

Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.

JOHN M. DUHÉ, 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 reverse2

and remand for proceedings consistent with this opinion.

BACKGROUND

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 o f 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 th e 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

Clause.

The c ourt 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 famil y law matters, the court found constitutionally

suspect Congress’s attempt to regulat e 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 under lying state court3

support order would be forced to review and apply these orders in

violation of principles of federalism and comity. S ee 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. S ee 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

balance.

DISCUSSION

We review the constitutionality of a federal statute de novo

.

See M adison v. Parker , 104 F.3d 765, 767 (5th Cir. 1997). Under

Supreme Court precedent, our review of le gislation 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

su fficiently involves interstate commerce. S ee

, e.g.

, Hodel v.

V irginia Surface Mining & Reclamation Ass’n, Inc. , 452 U.S. 264,

276 (1981).

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 a4

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. S ee 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. S ee 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 bec ause delinquent

parents were making “a mockery of State law by fleeing across State

lines to avoi d 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 C ommerce Clause delegates to Congress the power to

“regulate Commerce wi th foreign Nations, and among the several5

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.” S ee 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 carr ying on that intercourse.” I d. 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 p owers, identifying three aspects of interstate

commerce that Congress may regulate: (1) “the use of the channels

of interst ate 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.” S ee Lopez

, 115 S. Ct. at 1629 (holding that

18 U.S.C. § 922(q), the Gun Free School Zones Act, exceeded

C ongress’s commerce powers because the Act did not regulate

economic activity and contained neither a jurisdictio nal element

requiring an interstate n exus nor an express legislative history

explaining th e Act’s connection to interstate commerce). We1 Six other circuits have considered the constitutionality of

the CSRA under the Commerce Clause and have found it constitutional

for various reasons. S ee United States v. Johnson

, No. 96-4323,

1997 WL 283447 (4th Cir. May 30, 1997); U nited States v. Parker

, 1 08 F.3d 28 (3d Cir. 1997); U nited States v. Bongiorno

, 106 F.3d

1027 (1st Cir. 1997); United States v. Hampshire

, 95 F.3d 999 (10th

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); U nited States v. Sage , 92 F.3d 101 (2d Cir. 1996), c ert.

denied

, 117 S. Ct. 784 (1997). Unless otherwise indicated, we

express no opinion as to our acceptance or rejection of the

reasoning employed therein.

2 We are puzzled by the dissent’s lengthy focus on the problems

attendant with the invocation of the “substantially a ffects”

category in the instant case. S ee infra Part I.A. As the dissent

itself recognizes, we make no eff ort to defend the

constitutionality of the CSRA on the basis that the failure to pay

court-ordered child support “substantially affects” interstate

commerce.

6 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 e xercise of Congress’s

commerce powers. 1 We decline to reach the question whether the

CSRA may also be upheld under the third category. 2

A

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 ope rates only when the noncustodial parent and his child

reside in different states, a suf ficient nexus exists to support

juris diction. 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.3 Becau se 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.

7 W e note as an initial matter that Bailey is correct i n 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

unwitting ly open the floodgates to allowing Congress to regulate

any and all activity it so desired, even those act ivities

traditionally res erved for state regulation, so long as opposing

parties are diverse. We need not entertain this fear, however,

bec ause 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.” U nited States v. Parke r , 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.4 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.” S ee

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 incide nt 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 “requir e[] 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. S ee 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

8 Kir k , 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 the se two

reasons.

As to the first category, the child support obligation--made

intersta te in nature as a direct consequence of the diversity

requirement i mposed upon the obligor and the obligee--can be

satisfied normally by a p ayment that necessarily must move in

interstate commerce. 4 The mechanism used to complete thiswould send or have sent (from Tennessee), the court-ordered child

support payments without invoking the channels or instrumentalities

of interstate commerce.

5 We admit confusion at the dissent’s insistence on invokin g

Lopez as authority in contradiction to our position. The dissent

posits that:

[u]nlike statutes that contain a jurisdictional

nexus element ‘which would ensure, through case-bycase 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 regu lates a ll child support

payments.

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 rea dily 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. S ee Bongiorno

, 106 F.3d at 1033;

Nichols , 928 F. Supp. at 312-13.

9 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 to6 That the CSRA is invoked whether the nonc ustodial parent

flees across state lines to avoid his payment obligation or the

noncustodial parent takes advantage of the custodial par ent and

child’s movem ent 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.” N ichols

, 928 F. Sup p. at 315. Although some

legislative history i ndicates the CSRA was motivated to punish a

noncust odial 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.

7 Defining “commerce” as “tantamount to ‘trade,’” the dissent

crisply states that child support obl igations 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.” S ee 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,” s ee

, e.g.

, Camps

Newfound/Owatonna , 1997 WL 255351, at *5; U nited 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

,

10 exist over defendants in CSRA litigation as long as the transaction

contemplated by the state court order flows in interstate

commerce. 6 S ee

, e.g.

, Associated Press v. NLRB

, 301 U.S. 103, 128

(1937) (holding that the Associated Press’s not-for-profit

newsgathering activities “amount[ed] to commerical intercourse

. .

. within the meaning of the Constitution” bec ause 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. 791 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, 320-23

(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, Pensac ola Tel. Co. v. Western

Union Tel. Co.

, 96 U.S. (6 Otto) 1, 11 (1877), all cited in SouthEastern , 322 U.S. at 549.

The construction of the term “commerce” is a practical one and

embraces economic activity beyon d that which is traditionally

considered commerce. See Lopez , 115 S. Ct. at 1636-37; s ee 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. S ee

, 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.”).

11 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

commerce.

B

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. Bailey8 “By this reasoning,” the dissent conjectures, “any person

moving to another state ipso fa cto federalizes all his financial

obligations, and ‘utilizes’ the channels of interstate commerce,

merely by crossing a state line.” S ee 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.

12 maintains tha t 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.

1

Addressing B ailey’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 S ee 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 frustr ate this consummation. The13

CSRA, designed to address this pr oblem, seeks to prevent the

frustration of an interstate commercial transaction that otherwise

would have occurred absent the defendant’s dereliction. It is thus

sub ject 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.” S age

, 92 F.3d at 105-06 (holding CSRA constitutional on

grounds that it is valid regulation of instrume ntalities of, or

things or persons moving in, interstate commerce); accord

Hampshire

, 95 F.3d at 1003. Supreme Court precedent supports this

position.

In Dahnke-Walker Milling Co. v. Bondurant , 257 U.S. 282, 286

(1921), the defendant, a Kentucky farmer, con tracted 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. I d. 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.” I d. at 292-93. The Court therefore rejected, on14

Commerce Clau se 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 s ame: 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. S ee Sage

, 92 F.3d at 106; United States v. Lewis

,

936 F. Supp. 1093, 1097 (D.R.I. 1996) (characterizin g CSRA as

statute that essentially penalizes the failure to pay an interstate

d ebt, and citing First Circuit case holding that debt collect ion

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 pa rents 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 H eart of Atlanta Motel, In c. v.

United States

, 379 U.S. 241, 250 (1964), the Court upheld Commerce9 Our position should not be taken to support “the more radical

proposition that Congress is empowered to r egulate the p assive

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 Comm erce 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

15 Clause jurisdiction over a local motel that failed to engage in

interstate commerce when it refused to rent rooms to black guests.

The Cou rt held that by failing to rent the rooms, the hotel

inhibited black travelers from cr ossing 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, 68

(1911), the Court upheld the Sherman Act, 15 U.S.C. §§ 1, 2, as

permissible congressional action under the Commerce C lause. 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 Co urt

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.” S age

, 92 F.3d at 105. 9Rights Act of 1964, by the Sherman Act, or by the Hobbs Act. See

Mussari , 95 F.3d at 790.

1 0 The dissent impugns this statement a s ipse dixit and as an

i nvitation to Congress “to regulate a ll financial transactions.”

See infra Part I.B. its attack is a mischaracterization of our

holding, whic h is limited only to the interstate payment and

collection of child support obligations and nothing more.

Furthermor e, 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 S outh-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)); a ccord Bongiorno

, 106 F.3d at 1031 (holdi ng CSRA constitutional under Commerce

Clause); United States v. Hopper

, 899 F. Supp. 389, 393 (S.D. Ind.

1995) (same).

16 Moreover, we disagree with those who attemp t to distinguish

these cases as concerned with something more traditionally

commercial than the payment of child support obligations. The

payment of support obligations is ind eed commercial; it involves

the transfer of money from one hand to another. In fact, nothing

could be more commercial. 1 0 That the underlying reason for the

obligation re lates to a matter of domestic relations does not

detract from this position.

2

In response to Bailey’s jurisdictional bootstrap argument, we

emphasize that Congress did not impose the underlying obligation to

pay c hild support. The CSRA applies only when the defendant has

violat ed 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 his17

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

A

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. S ee

, e.g. Ankenbrandt v. Richards

, 504 U.S. 689, 693-94

(1992); Barber v. Barbe r , 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 feder al 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 th is 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. at11 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.” S ee 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).

18 703-04 (articulating policy considerations behind exception). The

CSRA in no way endeavors to regulate thi s hallowed ground; 1 1 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 relation s 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 1 106

(cit ing 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). R ogers is a

diversity actio n between former spouses in which the plaintiff

sought damages for emotional distress suffered when h er former19

hus band allegedly sexually abused their daughter and denied her

access to the child. I d. 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 inappropriat e because hearing the

claim would necessitate that type o f inquiry into the marital

relationship better conducted by state courts. I d. at 98. We

explained that at the heart of the plaintiff’s suit was the

allegation that her former husband had sexually abuse d their

daughter. I d. 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 plai ntiff’s action

been “one in which the court need only decide whether an alreadyset custody or child support award has been complied with,” federal

j urisdiction would have been proper. I d. (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 wei ght of the federal courts in an effort to compel him to

fulfill his legal obligations under state law.

B

1

Bailey ne xt argues that the CSRA offends principles of

federalism and comity. He insists the Act calls for federal review20

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 offen se to our federal structure

this way:

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 s tay 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 U nited

States v. Ganaposki , 930 F. Supp. 1076, 1083 (M.D. Pa. 1996):

[T]he CSRA goes no further than the enfor c ement 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 l aw 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 state21

court order in federal court.

2

Bailey also questions whether Congress, in enacting the CSRA,

has intruded upon the states’ traditional domini on to enact

criminal laws. In the interests of federalism and comity, Bailey

disputes Congress’s authority to criminalize that behavior, v iz.

the willful failure to pay court-ordered child support, which some

states have c hosen 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 re gulated

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

Clause.

C

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 this22

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 T enth 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 Consti tution has not

conferred on Congress.” New York v. United States , 505 U.S. 144,

156 (1992).

When Congress enacted the CSR A, 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 obl igations, 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 of ten are

unsuccessful, to enforce interstate support orders. The CSRA in no

way intends to su pplant them. Bailey’s Tenth Amendment argument

therefore fails.

CONCLUSION

For the reasons discussed above, we find the constitutional23

objections unavailing. The CSRA does not exceed Congress’s powers

under the Commerce Clause nor does it encroach on matters within

the pro vince of state sovereignty. Federal jurisdiction is

therefore proper. We accordingly REVERSE and REMAND.

ENDRECORD1 2 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. C ompare 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”). JERRY E. SMITH, Circuit Judge, dissenting:

In U nited States v. Lopez

, 514 U.S. 549, 115 S. C t. 1624

(1995), the Court reaffirmed the fundamental princi ple that the

Constitut ion 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 m ay not be extended so as to embrace effects upon interstate

commerce so indirect and remote that to e mbrace 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,25

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.

I.

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. I d. 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 chann els of interstate commerce.

Second, it is empowere d to regulate and protect the26

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.

A.

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 L opez

, the Supreme Court disavowed the use

of speculative ec onomic 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 m arriage, 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 i nvention,

rather than a faithful interpretation of the constitutional text.

The Commerce Clause authorizes Congress to regulate commerce among

t he several states , not an a ctivity that affects commerce

.1 3 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

universally.

14 See Lopez

, 115 S. Ct. at 1642-50 (Thomas, J., concurring) (discussing

the evolution of the “affecting commerce” doctrine).

27 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 affe cts interstate commerce. S ee 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 ac tivity 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 prin c iple 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. I d

. at 1634. To illustrate the limitations of the commerce

power, the Court disavowed any use of the “affecting commerce”

doctrine that would justify federal i ntervention in the field of1 5 Indeed, even the dissenters in Lopez agreed that family law is beyond the

power of Congress to regulate under the Commerce Clause. S ee

, e.g.

, Lopez

, 115 S.

Ct. at 1661 (Breyer, J., dissenting).

28 family law. S ee id

. at 1632. 15 Yet the CSRA occasions just such

an intrusion, subverting the federal sys tem 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.” I d

. 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.” I d

.

at 1634.

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 regula tes neither the channels nor the

instrumentalities of interstate commerce, nor persons or things in

interstate commerce.

B.

The CSRA imposes criminal penalties on parents wh o fail to

satisfy an interstate child support obligation. If the payment of1 6 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.

29 child support constituted “commerce,” therefore, it would

n e cessarily follow that interstate child support payments are

“things in interstate commerce,” within the meaning of Lopez

. For

purposes of the Commerce Clause, howe ver, 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 nar row

definition that would limit the term “commerce” to traffic, buying

and selling, and the interchange of commodities. I d

. at 189.

Instead, G ibbons defined “commerce” broadly to include “the

commercial intercourse between nations, and parts of nations.” I d

.

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 is1 7 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 “com prehends intercourse

for the purposes of trade in any and all its forms, including the transportation,

purchase, sale, and exchange of commodities between the citize ns of our country and

the citizens or subject of other countries, and between the citizens of different

States”).

1 8 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 L opez categories (e.g., the channels of interstate commerce, th e instrumentalities of interstate commerce, or activities that “substantially affect”

interstate commerce”). In this respect, L opez 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 Gib bons refers to a ctivity that affects interstate

commerce.

30 con fined to the regulation of trade, business transactions, and

economic activity. 17 Therefore, in order to constitute a “person

or thing in interstate comm erce,” subject to direct regulation

under the Commerce Clause, a person or thing must b e engaged in

“commercial intercourse.” 18

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 serv ices by

purchase and sa l e. S ee, e.g.

, B LACK ’ S L AW D ICTIONARY 269 (6th ed.

1990); W EBSTER ’ S N EW I NT ’ L D ICTIONARY 538 (2d e d. 1958). The

cornerstone of the commerce power, ever since the founding era, has

been the power to regulate trade. “Whatever other meanings

'commerc e' 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, barg ained and

contracted. And this meaning has persisted to modern times.”1 9 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.”).

2 0 Likewise, the C ourt 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).

31 United States v. South-Eastern Underwriters Ass’n

, 322 U. S. 533,

539 (1944). 19

Indeed, the essential characteristic of “commerce” continues

to be its relationship to business an d 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 mus t 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. S ee 18 U.S.C. § 228(d)(1)(A). Therefore,

payment of child support is not conditioned on the performance of32

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 th ose terms.” S ee

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 leg al uncertainty in some cases. I d. 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 legisl ation. 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

powers.

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.21 I am at a loss to understand the suggestion that the child s upport

obli gation 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

interstate commerce.”

33 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

commerce SS the 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

C.

Having concluded that child support payments are not “things

in interstate commerce” and do not “sub stantially affect”

interstate commerce, I must consider the last possible ground for2 2 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).

34 reg ulation of child support payments under the Commerce Clause:

use of the channels or instru mentalities 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

comm erce. 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

“Interstate Clause.”

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 move2 3 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 juris dictional nexus to interstate commerce. Such a

jurisdictional nexus provides the sole constitutional foundation for

35 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 prerequi site 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 instrume ntalities 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 Jon es, J.) (stating that the first L opez category

involves statutes that are distinguished by express jurisdictional

nexus requirements). 23federal regulation.

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. S ee

, 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); B rooks v. U nited States

, 267 U.S. 432, 435 (1925) (no ting that the National Motor Vehicle Theft Act prohibits

the transportation of stolen vehicles in interstate commerce); United States v.

Hi ll , 248 U.S. 420, 422 (1919) (noting that the Reed Amendment prohibits

transportation of intoxicatin g liquor in interstate commerce); C aminetti 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

con stitutional foundation for the act, the courts will not inquire into the motives

underlying congressional regulation of non-commercial activity. “'[T]he authority

of Congres s 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. Unite d States , 379 U.S. 241, 256 (1964) (quoting

Caminetti

, 242 U.S. at 491); accord United States v. Dar by , 312 U.S. 100, 114

(1941). In the absence of such an express jurisdictional element, however, Congress

is not empowered to exercise a federal po lice power over non-commercial activities.

As I have explained, interstate child support payments are not “commerce,” and

are not subject to di rect federal regulation as interstate commerce p er se

. Accordin gly, 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 fulfil ling 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 f acto federalizes all his financial obligations,

and “utilizes” the channels of interstate commerce, merely by crossing a state line.

36 Because the CSRA does not include an expres s jurisdictional

n e xus requirement, but instead regulates all interstate child

s upport payments, it is constitutional only if state borders are

characterized as “channels” of interstate commerce, rendering all2 4 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 i f we assume that state borders are, by definition,

“channels” of interstate c ommerce. This expansive interpretation would

effectively nullify the phrase “channels of interstate commerce,” however, which

necessarily implies something less than s tate borders, and would expose all

interstate activity to a federal police power.

2 5 Although it traces its lineage to cases such as C hampion 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 (1971),

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.

37 interstate activity subject to federal legislation. 24 The majority

is obligated to endorse this rationale, stating tha t “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

power. 25

Furthermore, this court may not cure the constitutional defect

in the CSRA by taking “judicial notice” that child support payments

must n ecessarily 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 suppor t order in the instant case2 6 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.

38 required Mr. Bailey to use them. To assume that interstate child

support payments must necessarily utilize the cha nnels or

i nstrumentalities 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 au t hority 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.). 26It is counterintuitive t o suppose that by empowering Congress “to regulate

commerce

. . . am ong 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

c hannels 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 obstr uction 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

f a ilure of individuals to engage in interstate commerce. S ee

, 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

interstate commerce).

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.

39 II.

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 d ifficult issue of

constitutional interpretation.