1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-3-1997

United States v. Parker

Precedential or Non-Precedential:

Docket 95-201

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Recommended Citation

"United States v. Parker" (1997). 1997 Decisions. Paper 53.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/53
1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 95-2018 

 ___________ 

 UNITED STATES OF AMERICA, 

 Appellant 

 vs. 

 STEVEN PAUL PARKER 

 ___________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 95-cr-00352) 

 ___________ 

 

Argued 

 February 6, 1997 

 Before: STAPLETON and MANSMANN, Circuit Judges

 and RESTANI, Judge.* 

 (Filed March 7, 1997) 

 ___________ 

Michael R. Stiles 

United States Attorney 

Walter S. Batty, Jr. 

Assistant United States Attorney 

Chief of Appeals 

Linda Dale Hoffa 

Assistant United States Attorney 

Robert A. Zauzmer (Argued) 

Assistant United States Attorney 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 Counsel for Appellant 

Steven A. Feldman, Esquire (Argued) 

Feldman & Feldman 

1200 Veterans Memorial Highway 

Hauppauge, NY 11788 

 Counsel for Appellee 
2

* Honorable Jane A. Restani of the United States Court of 

International Trade, sitting by designation. 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 This appeal from the dismissal of a criminal 

information for failure to pay past-due child support presents a 

question of first impression for us. We must determine whether 

enactment of the Child Support Recovery Act of 1992, 18 U.S.C. § 

228 (1995) ("The Act") was within the power granted to Congress 

under Article 1, Section 8, Clause 3 of the Constitution. 

Because we are convinced that the Act was the product of a lawful 

exercise of congressional power under the Commerce Clause and 

does not transgress the Tenth Amendment, we find that the 

district court erred in holding the Act unconstitutional. We 

will, therefore, reverse the order of the district court. 

I. 

 On June 27, 1995, the United States Attorney for the 

Eastern District of Pennsylvania filed a criminal information 

alleging that Steven Paul Parker, a Florida resident, willfully 

failed to pay a past-due child support obligation to his two 

children in Pennsylvania in violation of the Child Support 

Recovery Act of 1992, 18 U.S.C. § 228.1

 

1. The Act provides in part, as follows: 

(a) Offense -- Whoever willfully fails to pay a past due support 

obligation with respect to a child who resides in 
3

 On September 14, 1995, Parker moved to dismiss the 

information, alleging that the Act is constitutionally infirm in 

that it: (1) falls outside the limits of the power granted to 

Congress under the terms of the Commerce Clause; and (2) 

impermissibly interferes with the states' ability to regulate 

child support and criminal law, thereby undermining the doctrine 

of federalism and violating the Tenth Amendment. In an opinion 

and order entered on October 30, 1995, the district court agreed 

(..continued) 

another state shall be punished as provided in 

subsection (b). 

(b) Punishment -- The punishment for an offense under this 

section is -- 

(1) in the case of a first offense under this section, a fine 

under this title, imprisonment for not more than 6 

months, or both; and 

(2) in any other case, a fine under this title, imprisonment for 

not more than 2 years, or both. 

(c) Restitution -- Upon a conviction under this section, the 

court shall order restitution . . . in an amount equal 

to the past due support obligation as it exists at the 

time of sentencing. 

(d) Definitions -- As used in this section -- 

(1) The term "past due support obligation" means 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 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. 

28 U.S.C. § 228. 
4

with Parker's arguments and dismissed the information. This 

timely appeal followed. 

 We have jurisdiction pursuant to 18 U.S.C. § 3731. Our 

review of the district court's determination that the Act is 

unconstitutional is plenary. United States v. Rybar, 103 F.3d 

273 (3d Cir. 1996). 

II. 

 Section 8 of Article I of the Constitution of the 

United States provides that "The Congress shall have power . . . 

 [t]o regulate Commerce with foreign Nations, and among the 

several States, and with the Indian Tribes. . . ." The scope of 

congressional power under this section has, until recently, been 

interpreted to be virtually limitless. The Commerce Clause 

landscape changed, however, with the Supreme Court's decision in 

United States v. Lopez, ___ U.S. ___, 115 S. Ct. 1624 (1995). 

There, the Court for the first time in nearly sixty years 

invalidated a statute as beyond the scope of the Commerce Clause. 

 This apparent change in course has resulted in reexamination of 

the Commerce Clause in a variety of contexts, as litigants 

attempt to persuade the courts that Lopez has breathed new life 

into statutory challenges that would, in other times, have been 

rejected summarily. 

 In Lopez, the Court considered the constitutionality of 

the Gun Free School Zones Act of 1990. This Act made it a 
5

federal offense "for any individual knowingly to possess a 

firearm at a place that the individual knows, or has reasonable 

cause to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A). 

Evaluating the constitutionality of the statute, the Court 

established that there are "three broad categories of activity 

that Congress may regulate under its commerce power." 115 S. Ct. 

at 1629. Congress is authorized to "regulate the use of the 

channels of interstate commerce", "regulate and protect the 

instrumentalities of interstate commerce," and "regulate . . . 

those activities that substantially affect interstate commerce." 

 Id.

 Because the Gun Free School Zone Act did not involve 

"channels" or "instrumentalities" of interstate commerce, the 

Court focused exclusively upon whether the regulated activity 

substantially affected interstate commerce. The Court concluded 

that it did not, writing that the statute "by its terms has 

nothing to do with `commerce' or any sort of economic enterprise, 

however broadly one might define those terms." Id. at 1630. The 

Court also found it significant that the statute did not contain 

a jurisdictional element establishing a connection to interstate 

commerce and that "[neither] the statute nor its legislative 

history contained express congressional findings regarding the 

effects upon interstate commerce of gun possession in a school 

zone." Id. at 1631. 
6

 Relying primarily on Lopez, the district court held the 

Child Support Recovery Act unconstitutional, rejecting the 

government's argument that the Act regulates an activity that 

substantially affects interstate commerce and comprises a use of 

the channels of interstate commerce. Specifically the court 

concluded that a willful failure to pay a court-ordered sum "has 

simply nothing to do with commerce in the context of the limited 

power given to the federal government and withheld from the 

states in the Commerce Clause." United States v. Parker, 911 F. 

Supp. 830, 834 (E.D. Pa. 1995). The court also held that the Act 

did not regulate use of the channels of interstate commerce in 

that it did not apply to "the shipping of goods or the movement 

of persons in interstate commerce." Id. at 842. While we 

recognize that the Supreme Court's decision in Lopez establishes 

that there is, indeed, an outer limit to congressional authority 

under the Commerce Clause, we do not agree with the district 

court that enactment of the Child Support Recovery Act lies 

beyond that limit. 

 In United States v. Bishop, 66 F.3d 569, 577 (3d Cir. 

1995), a post-Lopez decision, we defined our mandate in cases 

challenging congressional authority under the Commerce Clause as 

follows: "Our job . . . is not to second-guess the legislative 

judgment of Congress that [the regulated activity] substantially 

affects interstate commerce, but rather to ensure that Congress 

had a rational basis for that conclusion." We clarified that the 
7

requisite rational basis may be supported by an Act's legislative 

history and by the interstate elements of a crime. We also 

adopted a broad definition of commerce, rejecting the notion that 

the Supreme Court in Lopez created a bright line rule 

establishing that unless an activity is commercial or economic it 

is beyond the reach of Congress under the Commerce Clause. Even 

"local activities may become the subject of national legislation 

when they are found to be part of a national problem with a 

substantial impact upon interstate commerce." Id. at 584. 

 In light of both the decision in Lopez and our own 

precedent, we are convinced that the Child Support Recovery Act 

falls within the scope of congressional authority under the 

Commerce Clause as a valid regulation of activity having a 

substantial effect upon interstate commerce. In so holding we 

align with our sister courts of appeals which have evaluated and 

rejected constitutional challenges to the Act. See United States 

v. Hampshire, 95 F.3d 787 (10th Cir. 1996); United States v. 

Mussari, 95 F.3d 999 (9th Cir. 1996); and United States v. Sage, 

92 F.3d 101 (2d Cir. 1996).2 We find the reasoning articulated 

 

2. A majority of the district courts outside the Second, 

Ninth, and Tenth Circuits which have considered challenges to the 

Child Support Recovery Act have upheld the Act's 

constitutionality. See United States v. Johnson, 940 F. Supp 911 

(E.D. Va. 1996); United States v. Sims, 936 F. Supp. 817 (N.D. 

Okla. 1996); United States v. Lewis, 936 F. Supp. 1093 (D. R.I. 

1996); United States v. Ganapowski, 930 F. Supp. 1076 (M.D. Pa. 

1996); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla. 

1996); United States v. Bongiorno, Crim. No. 94-10178-REK, 1996 

WL 208508 (D. Mass. Jan. 25, 1996); United States v. Hopper, 899 

F. Supp. 389 (S.D. Ind. 1995); United States v. Murphy, 893 F. 
8

in these decisions to be persuasive and adopt it here. 

Accordingly our analysis is brief. 

 As we noted in Bishop, "we . . . must give substantial 

deference to a Congressional determination that it had the power 

to enact particular legislation." 66 F.3d at 576. Several 

factors convince us that the Child Support Recovery Act falls 

within the line drawn by the Supreme Court in Lopez. First, by 

its terms, the Act is confined to interstate transactions; it 

addresses the obligation of one parent to make payments in 

interstate commerce for a child living in a different state. 

These payments will normally move in interstate commerce by mail, 

by wire, or by electronic transfer. 

 The activity regulated by the Act falls within the 

broad definition of commerce which we adopted in Bishop. Failure 

to make required payments gives rise to a debt which implicates 

economic activity. This is an instance where "local activities . 

. . are . . . part of a national problem with a substantial 

impact upon interstate commerce." Id. at 584. It is significant 

that the legislative history underlying the Act establishes that 

state efforts have been inadequate to ensure that payments owed 

are actually made and that, as a result, annual obligations 

covered by the Act total billions of dollars. Finally, unlike 

the statute the Court reviewed in Lopez, the Child Support 

(..continued) 

Supp. 614 (W.D. Va. 1995). But see United States v. Bailey, 902 

F. Supp. 727 (W.D. Tex. 1995) (holding Act unconstitutional). 
9

Recovery Act involves an unbroken chain of interstate events 

which begins when one parent crosses state lines and ends with 

interstate collection efforts. 

III. 

 We also reject Parker's argument that the Child Support 

Recovery Act undermines the doctrine of federalism and violates 

the Tenth Amendment. In light of our holding that the Act is the 

product of a legitimate exercise of congressional authority under 

the Commerce Clause, this argument fails. "If Congress acts 

under one of its enumerated powers -- here its power under the 

Commerce Clause -- there can be no violation of the Tenth 

Amendment." United States v. Mussari, 95 F.3d at 791. The Act 

does not "threaten[] the existence or significance of the states 

or interfere[] with the existence of their powers." United 

States v. Sage, 92 F.3d at 106. "All the Act does is enable the 

United States to help [the states] do what [they] could not do on 

[their] own, namely enforce [the] obligation to send money from 

one state to another." Id. at 105. 

IV. 

 Because we are convinced that the Child Support 

Recovery Act was enacted pursuant to the authority granted to 

Congress under Article 1, Section 8, Clause 3 of the Constitution 
10

and does not violate the terms of the Tenth Amendment, we will 

reverse the order of the district court. 
11

_________________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 _____________________________ 

 Circuit Judge