Regulating Intrastate Crime: How the FederalKidnapping Act Blurs the DistinctionBetween What Is Truly National andWhat Is Truly Local

I. IntroductionIn the early morning hours of Saturday, March 27, 2004, a white male wearing a black knit stocking cap slipped into the bedroom of Audrey Seller's apartment, threatened her with a knife, and ordered her to follow him to his waiting car. ' Once outside, he pushed the twenty-year-old college student into a car, forced her to swallow Nyquil capsules, and bound and gagged her with duct tape.2 For hours, Seller's abductor drove them around the city of Madison, Wisconsin before finally stopping near a wooded area on the edge of town.3Seller's friends quickly noticed her absence. By late Saturday afternoon, the local police had launched an investigation into her disappearance. The national media immediately took interest, and for days the nation focused on every detail emerging from this shocking kidnapping in a small college town.4Forensic investigators determined that someone had conducted Internet searches for "Madison parks" and "Madison area wooded areas" on Seller's laptop shortly before her disappearance.5 Additionally, detectives discovered surveillance video from a local Target store showing an individual purchasing duct tape, rope, a knife, and Nyquil medication.6 Moreover, as the investigation would later reveal, Seller's alleged abductor reportedly used a cell phone to call an accomplice, pleading "I did what you asked. You got to let me in now."7Then, on the Wednesday following Seller's disappearance, a 911 caller reported seeing a young woman fitting Seller's description sitting in a grassy area near a bike path.8 Police officers responded to an area just two miles from Seller's apartment.9 Upon arrival, they quickly discovered that the lone woman sitting in the grass was indeed the missing college student.10 Audrey Seiler had been found.11If she had been transported across state lines, the Federal Kidnapping Act12 (Kidnapping Act) would have been violated.13 But because Seiler remained in-state-indeed, the entire ordeal took place within Dane County, Wisconsin-her kidnapping amounted to a state law crime.14 That is, until Congress passed the Adam Walsh Child Protection and Safety Act.15Enacted in late July 2006, this statute contains over one hundred different provisions aimed at protecting children from the harms of violent crime and sexual exploitation.16 Included in this legislation, however, is a one line amendment to the Kidnapping Act, dramatically expanding the reach of federal jurisdiction to include virtually every type of kidnapping currently regulated under state law.17 Specifically, the amendment extends federal jurisdiction to kidnapping cases in which an offender makes use of the channels or instrumentalities of interstate commerce.18Under the current interpretation of Congress's commerce power, there is no minimum threshold of interaction necessary to create the required nexus with interstate commerce.19 Rather, simply driving a car, picking up a telephone, or even walking down a neighborhood sidewalk satisfies the usage requirement. In Seller's case, this nexus would have been created when her alleged abductor accessed the Internet, purchased items in a store, transported her in an automobile on local streets, or telephoned his accomplice.Viewed in this light, it is difficult to imagine a kidnapping scenario in which an offender does not use a channel or instrumentality of interstate commerce in commission or furtherance of the crime. Most, if not all, intrastate kidnappings invariably involve the use of an automobile, a telephone, or some other instrument of interstate commerce in conjunction with the act. Prior to the 2006 amendment, only state authorities could prosecute these otherwise intrastate kidnappings. With the added "offender-use provision" in the 2006 amendment, however, federal authorities now share concurrent jurisdiction with the states over virtually every kidnapping in this country. Indeed, the 2006 amendment is so broad that Congress could use it to extend federal jurisdiction over practically all intrastate criminal activity. …