United States v. FaasseUnited States v. Faasse
OPINION
KAREN NELSON MOORE, Circuit Judge. In response to “the growing problem of interstate enforcement of child support,” Congress passed the Child Support Recovery Act of 1992 (“CSRA“), Pub. L. No. 102-521, § 2(a), 106 Stat. 340 (codified at
I. FACTS
Timothy Gordon Faasse and Sandra Bowman had a child, Noelle Alexandria Faasse, on December 23, 1990. The couple resided in Lansing, Michigan for the first several months of Noelle‘s life. In June 1991, Faasse moved to California; Bowman chose to remain in Michigan with Noelle. In June 1992, Faasse filed a petition in state court to establish his paternity of Noelle as well as visitation rights. The circuit court in Kent County, Michigan adjudged Faasse to be Noelle‘s father on January 11, 1994; it also ordered Faasse to pay child support in the amount of $58.25 per week.1 The child support order was made retroactive to December 1992. As a result of the retroactive nature of the award, Faasse found himself $5,391 in arrears on child support.
Faasse was intermittently employed in California2 and his child support payments were sporadic: in 1994, Faasse made four payments to Bowman totaling $633; in 1995, he sent ten payments in the amount of $1,175; in 1996, Faasse provided payments of $690; in 1997, Faasse sent seven payments totaling $5,390; and in 1998, Faasse made one payment of $100.
On July 17, 1997, the government filed a criminal complaint against Faasse in the United States District Court for the Western District of Michigan alleging that Faasse was in violation of the Child Support Recovery Act for failure to pay court-ordered child support from January 1994 to July
(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 . . . .
Faasse timely appealed his conviction and sentence to this court.4 He first challenges the constitutionality of the CSRA as an improper exercise of Congress‘s Commerce Clause authority. Faasse attacks the statute‘s nexus to interstate commerce, asserting that the CSRA creates a “federal criminal enforcement mechanism for pure state law child support obligations” whose only link to interstate commerce is the requirement that parent and child reside in different states. Appellant‘s Br. at 9. According to Faasse, this link is insufficient to establish a constitutional basis for Congressional regulation. Faasse also challenges the district court‘s order requiring him to pay restitution as an abuse of the district court‘s discretion. A panel of this court initially accepted Faasse‘s arguments and reversed the district court‘s judgment. United States v. Faasse, 227 F.3d 660, 672 (6th Cir. 2000). We granted rehearing en banc, vacated the panel opinion, 234 F.3d 312 (6th Cir. 2000), and now affirm the judgment of the district court.
II. ANALYSIS
The Constitution grants Congress the power to regulate commerce among the several states.
A. Commerce Clause
In one of the Supreme Court‘s earliest expositions on the Commerce Clause, Chief Justice Marshall rejected the notion that “commerce,” as utilized in the Constitution, is limited “to traffic, to buying and selling, or the interchange of commodities . . . .” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824). The Chief Justice noted that “[c]ommerce, 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. Although the Supreme Court‘s reliance on this early understanding of commerce has waxed and waned in the course of this nation‘s development, it remains the principal standard by which we evaluate Commerce Clause challenges. While we must remain vigilant to ensure that a federal statute does not trench upon purely local activity, we may only invalidate a congressional enactment passed pursuant to the Commerce Clause if it bears no rational relation to interstate commerce. Hodel v. Virginia Surface Mining & Reclamation Ass‘n, 452 U.S. 264, 276 (1981).
In United States v. Lopez the Supreme Court revealed its concern that Congress had so expanded its authority to regulate intrastate activity under the guise of its Commerce Clause power that Congress was in danger of “effectually obliterat[ing] the distinction between what is national and what is local and creat[ing] a completely centralized government.” Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). Summarizing its prior Commerce Clause jurisprudence, the Court articulated “three broad categories of activity that
According to Faasse, Congress lacks the power under all three Lopez categories to enact the CSRA. We disagree. The CSRA regulates exclusively interstate cases involving a debtor parent‘s obligation to send court-ordered payments through interstate channels of commerce for a child residing in another state. We believe that, at the very least, the CSRA falls within Congress‘s power to regulate a “thing” in interstate commerce. Nine of the ten circuits to have upheld the CSRA have held similarly.5 See United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997) (upholding statute under Lopez‘s category two); United States v. Sage, 92 F.3d 101, 107 (2d Cir. 1996), cert. denied, 519 U.S. 1099 (1997); (upholding statute under category two); United States v. Johnson, 114 F.3d 476, 480 (4th Cir.), cert. denied, 522 U.S. 904 (1997) (upholding statute under category two); United States v. Bailey, 115 F.3d 1222, 1226 (5th Cir. 1997), cert. denied, 522 U.S. 1082 (1998) (upholding statute under categories one and two); United States v. Black, 125 F.3d 454, 460 (7th Cir. 1997), cert. denied, 523 U.S. 1033 (1998) (upholding statute under category two); United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.), cert. denied, 522 U.S. 934 (1997) (upholding statute under all three categories); United States v. Mussari, 95 F.3d 787, 790 (9th Cir. 1996), cert. denied, 520 U.S. 1203 (1997) (upholding statute under category two); United States v. Hampshire, 95 F.3d 999, 1003 (10th Cir. 1996), cert. denied, 519 U.S. 1084 (1997) (upholding statute under categories two and three); United States v. Williams, 121 F.3d 615, 619 (11th Cir. 1997), cert. denied, 523 U.S. 1065 (1998) (upholding statute under category two). Lopez and its progeny simply do not cabin Congress‘s authority to prevent the obstruction of things in interstate commerce.
Lopez involved a challenge to the Gun-Free School Zones Act of 1990 (“GFSZA“),
In United States v. Morrison, 120 S. Ct. 1740 (2000), the Supreme Court elaborated upon the Lopez Court‘s category-three analysis in its review of the constitutionality of
To the extent that Faasse relies on Lopez and Morrison as support for his argument, he reveals a serious misunderstanding of these precedents. Undoubtedly, Lopez
B. “Thing” in Commerce
As the Supreme Court has repeatedly made clear, Congress‘s power to regulate things in interstate commerce is plenary.7 See Gibbons, 22 U.S. (9 Wheat.) at 193, 196
The power confined to Congress by the Commerce Clause is declared in The Federalist to be for the purpose of securing the ‘maintenance of harmony and proper intercourse among the States.’ . . . It is the power to legislate concerning transactions which, reaching across state boundaries, affect the people of more states than one; — to govern affairs which the individual states, with their limited territorial jurisdictions, are not fully capable of governing.
United States v. South-Eastern Underwriters Ass‘n, 322 U.S. 533, 551-52 (1944) (footnotes omitted).
In exercising its positive Commerce Clause power, “Congress has often passed legislation to help the States solve problems that defy local solution.” Sage, 92 F.3d at 105. Thus, in Perez v. United States, 402 U.S. 146, 150 (1971), the Supreme Court noted that legislative history for the Consumer Credit Protection Act,
When Congress enacted the CSRA in 1992, legislative history reveals that it did so in response to a dilemma it considered national in scope and whose resolution had defied the authority of the individual states. The House Judiciary Committee, which authored a report accompanying the bill that became
As this report makes plain, Congress‘s enactment of the CSRA was premised upon a paradigmatic use of its Commerce Clause power over “things” in commerce: to regulate national problems that confound state-by-state solution. As the Second Circuit noted:
All the Act does is enable the United States to help [the state] do what it could not do on its own, namely, enforce [the defendant‘s] obligation to send money from one State to another. Congress was not impotent to overcome the obstacles inherent in our Federal system to the enforcement of that obligation.
Therefore, pursuant to its authority to regulate things in interstate commerce, be they commercial or not, we believe that Congress may properly prohibit a non-custodial spouse from refusing to pay court-ordered child support when the child lives in another state. The CSRA is explicitly premised upon the non-custodial parent‘s unfulfilled court-ordered obligation to make an interstate money payment to the custodial parent. Importantly, “[p]ayments stemming from a support obligation will usually travel in interstate commerce by mail, wire, or electronic transfer.” Black, 125 F.3d at 460; cf. United States v. Owens, 159 F.3d 221, 226 (6th Cir. 1998) (upholding money laundering conviction under
It matters not, for purposes of the Constitution, whether the child support payment is a tangible thing. In South-Eastern Underwriters Ass‘n, 322 U.S. at 546, in which the Supreme Court upheld Congress‘s authority to regulate interstate insurance contracts, the Court made clear that “Congress can regulate traffic though it consist of intangibles.” The Court also noted that “transactions [may] be commerce though non-commercial; they may be commerce though illegal and sporadic, and though they do not utilize common carriers or concern the flow of anything more tangible than electrons and
Moreover, it is immaterial that the CSRA regulates a defendant‘s failure to put a thing in commerce.8 It is true that many federal statutes prohibit, rather than seek to compel, goods or services from passing through interstate commerce. See, e.g., United States v. Darby, 312 U.S. 100, 115 (1941) (upholding criminal provision of Fair Labor Standards Act proscribing interstate shipment of goods produced by employees whose wages and hours of employment did not conform to the Act). As the Fifth Circuit noted, however, “[t]he 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.” Bailey, 115 F.3d at 1229-30; see also Sage, 92 F.3d at 105-06 (rejecting argument that failure to send money does not invoke Commerce Clause power because “[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“). Thus, in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257-58 (1964), the Supreme Court upheld Title II of the Civil Rights Act of 1964, which provides for equal access to places of public accommodation without regard to race, explaining that the Heart of Atlanta Motel‘s refusal to accommodate blacks was an impermissible “obstruction to interstate commerce” because it deterred blacks from engaging in interstate travel; in United States v. Green, 350 U.S. 415, 420 (1956), the Supreme Court upheld the Hobbs Act,
The dissent‘s contention that Faasse passively failed to engage in commerce, instead of actively obstructed commerce, and that these precedents therefore do not apply to him, is not well taken. Faasse‘s failure to act was not “passive” in this case, it was willful, as he was under a state court order to pay child support which he deliberately disobeyed. Indeed, we note that the scienter element in the CSRA requires willfulness: the statute may only be invoked if a defendant “willfully fails to pay a past due support obligation with respect to a child who resides in another State.”
We are also nonplused by the assertion that, in some hypothetical situations, a debtor parent and the custodial parent may reside in one state while the minor child resides in
Finally, we wish to make clear that this statute does not, as Faasse and the dissent would have us believe, regulate a traditional area of family law best left to the states. In both Lopez and Morrison, the Supreme Court noted that should the “substantial effects” and aggregation principles for intrastate activity be extended too far, it would provide Congress with authority to regulate “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” Morrison, 120 S. Ct. at 1753. First, the CSRA does not rely exclusively upon either the “substantial effects” or aggregation principle for its constitutionality; as noted above, it regulates inter-, not intra-state economic activity. Moreover, the statute does not purport to regulate the non-economic activities associated with marriage, divorce, or childrearing under the guise that, in the aggregate, such activities substantially affect interstate commerce. As a regulation of out-of-state debtors who owe court-ordered payments, the CSRA deals exclusively with interstate economic transactions. Cf. United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000) (upholding
Second, the statute does not supplant traditional state statutory enforcement mechanisms. In this case, Michigan remains the exclusive regulator and enforcer of all unpaid child support obligations in its state unless the non-custodial parent (or the child) both lives out of state and the parent fails to make payments. In such a situation, Congress made express findings that collection of past-due debts had grown beyond the enforcement capacities of the states. The CSRA does not supplant or preempt state law because it does not implicate the states’ ability or authority to order child support payments, nor does it compel states to enforce such orders.11 Instead, the CSRA merely reinforces state laws which the states were unable to enforce themselves.12 This is a most
An interstate court-ordered child support payment clearly is a “thing” in interstate commerce. See Bailey, 115 F.3d at 1229 (“The CSRA . . . 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 [under category two] for that reason.“); Crawford, 115 F.3d at 1400 (finding that payments of child
C. Other Categories of Regulation
Although we have determined that the CSRA validly regulates a thing in commerce within Lopez‘s category two, we also believe that the statute is a constitutional regulation of the channels of interstate commerce.14 Accord Crawford,
In Lopez, the Court stated that there are two kinds of permissible regulation under the first category of activity: (1) “regulation of the use of the channels of interstate commerce;” and (2) “an attempt to prohibit the interstate transportation of a commodity through the channels of commerce.” Lopez, 514 U.S. at 559. As the Court‘s references to United States v. Darby, 312 U.S. at 114 (upholding criminal prosecution under the Fair Labor Standards Act for interstate shipment of lumber which was manufactured intrastate by employees whose wages and hours did not conform with Act) and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. at 256 (upholding Title II of the Civil Rights Act of 1964 forbidding public accommodations from refusing to serve customers based on race and noting that “the authority of Congress to keep the channels of interstate
Finally, we also believe that, although not necessary to our holding today, we could find the CSRA a valid regulation under Lopez‘s category three. The statute regulates financial obligations which must move in interstate commerce, via mail, wire, or electronic transfer; it has an explicit jurisdictional nexus to interstate commerce — the child and non-custodial parent must reside in different states; and it is supported by Congressional findings explaining the effect on interstate commerce of the failure to make court-ordered child support payments. Accord Parker, 108 F.3d at 30; Crawford, 115 F.3d at 1400; Hampshire, 95 F.3d at 1004 (all upholding CSRA under Lopez‘s category three). Congress clearly had a rational basis for enacting the CSRA under its category three Commerce Clause power. In sum, we believe that the CSRA is valid under each of the three Lopez categories.
III. ORDER OF RESTITUTION
Having rejected Faasse‘s constitutional challenge to the CSRA, we now turn to his challenge to the district court‘s
The CSRA requires a court, upon a conviction under the Act, to order restitution under
Faasse‘s sole argument is that the magistrate judge abused his discretion by failing to consider “the financial needs and earning ability of the defendant” when fashioning the restitution order. Specifically, Faasse argues that the magistrate judge did not adequately consider the effect of Faasse‘s six-month term of imprisonment and the consequent loss of his job on his earning ability. According to Faasse, “[f]ailure to reduce the restitution award in light of Mr. Faasse‘s circumstances constitutes an abuse of discretion that warrants remand for reconsideration of an appropriate restitution award.” Appellant‘s Br. at 13.
In support of his position, Faasse cites to this court‘s decision in United States v. Dunigan, 163 F.3d 979, 982 (6th Cir. 1999), in which a panel of this court reversed the district court‘s imposition of a $311,605 restitution order on a defendant sentenced to thirty-one months in prison. The Dunigan court determined that the district court had failed to
We have held that the district court must consider each of the statutory factors in § 3663 when determining the specific amount ordered as restitution. United States v. Sanders, 95 F.3d 449, 456 (6th Cir. 1996). The district court is not, however, required to make explicit findings about each statutory factor, id., although we held in Dunigan that “a district court must have, at a minimum, some indication that a defendant will be able to pay the amount of restitution ordered . . . .” Dunigan, 163 F.3d at 982. Thus, we noted that “[a] district court abuses its discretion when it orders restitution in an amount that it finds the defendant is not likely to be able to pay.” Id. (quoting United States v. Fuentes, 107 F.3d 1515, 1529 (11th Cir. 1997)).
In Faasse‘s case, we believe that the district court adequately considered the appropriate statutory factors, including the defendant‘s financial status. The magistrate judge stated at the sentencing hearing:
I don‘t see any resolution of this case other than the one I‘m going to impose, and that is the statutory maximum here is six months and I‘m going to impose the six-month sentence. If I thought that — and obviously I know that this means the defendant‘s going to lose his job. If I thought that letting him keep his job would mean that he would start supporting his child, it‘s the last thing in the world I‘d do is take his job away from him, but I don‘t believe for a moment that getting this particular job at $22,000 a year plus commissions is going to do anything for this child.
The defendant has a long track record here of not supporting the child so what I‘m going to do is incarcerate the defendant, make a lesson of him for himself and for others, and at the end of six months then
he can decide whether he wants to continue in his obstructionist fashion. * * *
I think the defendant has had means and methods to pay this money all along, he just will not, and in a case where the Court decides that it‘s the defendant‘s will and not his inability that‘s the problem I think this is what the Court ought to do.
J.A. at 107-08. The transcript makes clear that the magistrate judge did not ignore “the financial needs and earning ability of the defendant” when ordering restitution. The magistrate judge explicitly contemplated that Faasse would lose his job when sentencing him but believed that, employed or not, Faasse was not likely willingly to support his daughter. The magistrate judge attributed Faasse‘s failure to make child support payments to his lack of “will” to pay, not to his financial inability. Thus, unlike the situation in Dunigan, in which the district court “expressed considerable doubt that Dunigan ever would be able to pay,” Dunigan, 163 F.3d at 982, the magistrate judge in this case believed that Faasse could pay the child support should he so choose.
Having determined that the magistrate judge did not ignore the appropriate statutory factors, we must consider whether there is sufficient evidence in the record to support the amount of restitution ordered, or whether the restitution order constituted an abuse of the magistrate judge‘s discretion. According to
Based on Faasse‘s earnings detailed in the presentence report, it first appears that the magistrate judge had no “indication that [the] defendant w[ould] be able to pay the amount of restitution ordered,” Dunigan, 163 F.3d at 982, particularly in one lump sum payable immediately, as was ordered by the district court. J.A. at 19. As is clear from the above recitation of Faasse‘s employment record, however, the presentence report is substantially incomplete. Faasse‘s probation officer reported that Faasse‘s “views and beliefs regarding the federal criminal justice system [] made him uncooperative in the gathering of facts and material relevant to the preparation of the presentence report.” J.A. at 117. The probation officer also found that Faasse “was evasive regarding his personal background, employment, and criminal histories.” Id. In the section on the defendant‘s employment record, the presentence report states that the probation officer “encountered difficulty identifying and verifying the defendant‘s employment history. The defendant presented false and misleading information to this officer on many occasions.” J.A. at 122. The probation officer concluded:
[I]t is difficult to gauge the defendant‘s ability to pay. If his most recent employment works out, he should have
the ability to pay restitution . . . at a rate deemed reasonable by the Court. After no less than five requests, the defendant has failed to return his Personal Financial Statement to this office.
J.A. at 124 (emphasis added). Because Faasse refused to cooperate with the probation officer by providing a Personal Financial Statement, see
To the extent that the presentence report is incomplete, we note that “the burden is on the defendant to demonstrate that a restitution order far exceeds his resources and earning potential.” Adams, 214 F.3d at 730; see also
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED in all respects.
DISSENT
ALICE M. BATCHELDER, dissenting. Because my view of the Commerce Clause fundamentally differs from that of the majority, I respectfully dissent. In United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 120 S. Ct. 1740 (2000), the Supreme Court made clear that some matters are simply outside of the scope of congressional regulation under the Commerce Clause. I think that criminalizing the failure to pay child support pursuant to a state court order is one of those matters. In the original panel decision, we noted that the Framers of our Constitution drafted the Interstate Commerce Clause, not the Interstate Clause. The majority‘s construction renders the commerce component meaningless. Such a reading violates the intent of the Framers, and transforms the Commerce Clause — a measure drafted to prevent state interference in the economic affairs of the nation — into a virtually limitless federal police power, contrary to the Supreme Court‘s recent holdings in Lopez and Morrison.
In determining the scope of congressional power under the Commerce Clause, a brief review of the historical roots of this power is instructive. As the Supreme Court has noted, “The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was ‘to take into consideration the trade of the United States; to examine the relative situations and trade of the said states; to consider how far a uniform system in their commercial regulation may be necessary to their common interest and their permanent harmony.’ Documents, Formation of the Union, 12 H. Docs., 69th Cong., 1st Sess., p. 38.” H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533 (1949). James Madison, chief architect of our federal system, stated that the Union required a power to regulate commercial activity, because “want of a general power over Commerce led to an exercise of this power separately, by the States, which not only proved
This power to prevent states from establishing parochial barriers to national trade, and the resulting injuries to the national economic health, was “so universally assumed to be necessary, no other state power was so readily relinquished.” H.P. Hood & Sons, Inc., 336 U.S. at 534. Justice Jackson noted this need for uniformity as the Framer‘s primary objective and recognized their intent to limit the commerce power to the protection of the free flow of commerce commenting, “[t]here was no desire to authorize federal interference with social conditions or legal institutions of the states.” Id. In fact, the arguments made in favor of the Constitution‘s ratification generally, and the Commerce Clause specifically, highlighted the need for a federal commerce power in order to navigate successfully the rough waters of the developing Transatlantic economy. So vital was this American common market to the former colonies’ participation in international trade, that constitutional supporters exhorted:
[T]here is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of [a federal commerce power] has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest.
Hamilton also highlighted the need for a federal commerce power to check the mercantilist and imperialist aims of European maritime powers, writing “[t]hose of them which have colonies in America look forward to what this country is capable of becoming with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States . . . .” THE FEDERALIST, No. 11, at 85 (Alexander Hamilton) (Clinton Rossiten ed., 1961).
The most widely accepted general description of commerce, and the one cited by the majority, is given in Gibbons v. Ogden: “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 . . . .” Gibbons, 22 U.S. (9 Wheat.) 1, 189-90 (1824). However, as Judge Jerry Smith has pointed out, “intercourse” has as its distinguishing feature a notion of reciprocity. United States v. Bailey, 115 F.3d 1222, 1236 (5th Cir. 1997) (Smith, J., dissenting); see also Webster‘s New World Dictionary of the American Language 733, 734 (2d ed. 1972) (defining intercourse as “communication or dealings between or among people, countries, etc.: interchange of products, services, ideas, feelings, etc.,” and interchange as “to give and take mutually; exchange . . . to put (each of two things) in the other‘s place . . . .“). This element of reciprocity — the mutual exchange of value motivated by economic self-interest — defines the marketplace which fosters social wealth. See Michael Klausner, Corporations, Corporate Law, and Networks of Contracts, 81 VA. L. REV 757, 771 (1995) (noting the basic precept of welfare economics that competitive market forces optimize social wealth). And it is the wealth-creating aspect of markets that justifies a national commerce power in our federal system; as the Supreme Court reminds us, the “overriding requirement” of the Commerce Clause is a national common market. Hunt v. Washington State Adver. Comm‘n, 432 U.S. 333, 350 (1977); see also Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 803 (1976) (noting “the premise, well established by the history of the Commerce Clause, that this nation is a common market“).
The failure to obey a state court order, of course, lacks this essential feature of reciprocity. This is so even where the order mandates a transfer of wealth, as do child support orders. “[P]ayment of child support is not conditioned on the performance of a reciprocal duty by the obligee, nor does it benefit the obligor.” Bailey, 115 F.3d at 1236 (Smith, J., dissenting). Due to this unilateral, redistributive character, support obligations can influence the “national common market” only at the margins, if at all. Indeed, the right to support payments is not freely alienable and, in some instances, the payments must be made to the state rather than directly to the ultimate beneficiary, further depriving these payments of the potential to affect the market. See, e.g.,
The majority seeks to “put to rest” the notion that interstate commerce requires reciprocity, attributing to this dissent the premise that because payment of a debt is not reciprocal, it is not subject to Congress‘s commerce power. The majority next cites United States v. Simpson, 252 U.S. 465 (1920), Hoke v. United States, 227 U.S. 308 (1913), and Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. (6 Otto.) (1877), for the proposition that the mere transport of people or information across state lines gives Congress authority to regulate them. The majority then reasons that a debt, or the support order enforcing it, is a “thing” in interstate commerce and therefore subject to congressional regulation. But although debts are typically reciprocal in the sense that payment is being sought for something of value given earlier, it does not follow that all debts are commercial in nature, such
The CSRA does not regulate within any of the categories permitted by Lopez, namely, the channels of interstate commerce, things that travel in these channels, or intrastate activity that substantially affects commerce. Rather, the Act regulates, through the imposition of criminal sanctions, obligations owed by one family member to another, using diversity of residence as a jurisdictional “hook.” This is particularly troubling because the states possess primary authority for defining and enforcing both the criminal law and the law of domestic relations. As Thomas Jefferson wrote:
[T]he Constitution of the United States, having delegated to Congress the power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, 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,” therefore . . . all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution, [] are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right appertains solely and exclusively to the respective States, each within its own territory.
In Lopez, the Supreme Court addressed the reach of Congress‘s commerce power. The Court struck down the Gun Free School Zones Act,
In considering that question, the Court recognized that its case law had not always been clear as to whether an activity must “affect” or “substantially affect” interstate commerce.
The majority in the case before us today says that the CSRA falls within category I, and perhaps category II, of Lopez. Because payment of child support on behalf of an out-of-state child will normally require the use of channels of interstate commerce, the majority argues, the CSRA is constitutional under the first Lopez category. See also United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir. 1997). The majority apparently also embraces the thesis that likens child support obligations to interstate debts or contracts, and asserts that Congress‘s authority to prevent obstruction of interstate commerce empowers it to criminalize nonpayment of such obligations. See United States v. Bongiorno, 106 F.3d 1027, 1032 (1st Cir. 1997); United States v. Sage, 92 F.3d 101, 105-06 (2d Cir. 1996). The majority also suggests that because the obligations covered by the CSRA, in the aggregate, total billions of dollars, the Act might pass muster under Lopez as a regulation of an intrastate activity that substantially affects interstate commerce. See, e.g., United States v. Parker, 108 F.3d 28, 30-31 (3d Cir. 1997). Any of these theories,2 however, would permit the creation of a federal law of ordinary private debt, whenever one party moved out of state after the debt was created. For the reasons set forth below, these arguments are unpersuasive.
I admit to some confusion with respect to the notion that the CSRA regulates the use of the channels of interstate commerce. The term “channel of interstate commerce” refers to, inter alia, “navigable rivers, lakes, and canals of the United States; the interstate railroad track system; the
Similarly unpersuasive is the argument that the CSRA regulates a thing in interstate commerce. This contention relies on an analogy between child support obligations and interstate debts, and on the further supposition that Congress may compel payment of debts through its power to prevent obstruction of interstate commerce. Accepting for the moment the rickety analogy between support obligations and debts, (although, as noted above, I do not believe support obligations in fact have any commercial character at all) I
Even if they did so suggest, still another obstacle stands in the way of the hypothesis that the CSRA regulates a “thing in interstate commerce.” Simply put, defendants in CSRA cases do not put something into the flow of interstate commerce; rather, they are being prosecuted for failing to do so. It has been argued that this failure amounts to an “obstruction” of
Most significantly, by effectively predicating jurisdiction on mere diversity of residency, the Act “regulates every interstate obligation, without exception.” Bailey, 115 F.3d at 1238 (Smith, J., dissenting). But, as I have already shown, child support obligations are not commercial in character. In the absence of a mechanism that would link particular support obligations to some sort of economic enterprise, sustaining the constitutionality of the CSRA on the basis of this purported jurisdictional nexus requires the excising of the element of “commerce” from the “Commerce Clause.” See id.
As discussed earlier, the Gun Free School Zones Act could not be sustained as a regulation of an activity that substantially affects interstate commerce for three reasons.
The manner in which the activity regulated by the CSRA substantially affects interstate commerce is unclear. “[T]o the extent that congressional findings would enable us to evaluate the legislative judgment that the [failure to satisfy child support obligations] substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here.” Lopez, 514 U.S. at 563. It is possible to infer from the legislative history that approximately $1.6 billion in interstate child support obligations go unpaid annually, and that Congress believed that some families were driven to federal public assistance as a result of unpaid child support. See H.R. REP. NO. 102-771, at 5 (1992) (observing that $5 billion in support obligations are not met each year, and that approximately one-third of child support cases concern children whose fathers live in a different state). These observations do not amount to a congressional conclusion that unpaid child support substantially affects interstate commerce, however, and courts would not simply accept that conclusion based on such findings in any event. See United States v. Morrison, 120 S. Ct. at 1752 (noting that “whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question“).
First, the mere fact that the aggregate social costs of an activity amount to a large dollar figure cannot, without more,
Likewise, federal regulatory jurisdiction cannot be founded on the possibility that nonpayment of support orders might cause individual citizens to become dependent on programs funded with federal money. Taken to its logical conclusion, this reasoning would allow Congress to regulate activity of any person that depletes another person‘s assets and, at bottom, is no different from the “costs of crime” and “national productivity” arguments already rejected by the Supreme Court. See Lopez, 514 U.S. at 563-68. What the Court said in Lopez holds true here as well: “To uphold the[se] contentions . . . , we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Id. at 567. Accordingly, I conclude that the CSRA is not a valid
The majority discusses at length the pervasive and interstate nature of the child support delinquency problem and recognizes that throughout its history, Congress has exercised its positive power under the Commerce Clause to enact “legislation to help the States solve problems that defy local solution.” However, the majority fails to note that the authority to enact these laws flowed from the relationship between the proposed regulation and interstate commerce, clearly ascertainable under one of the Lopez categories, and not the difficulty or interstate nature of the problem. For example, federal laws prohibiting loan sharking were held permissible because loan sharking and the attendant organized crime interferes with interstate commercial activity, not merely because the problem defied state solutions. See Perez v. United States, 402 U.S. 146, 150 (1970). The other instances cited by the majority, where the courts have upheld congressional authority to regulate the channels of interstate commerce, fall into the category of regulations to prevent the federally maintained channels from being used for immoral or illegal purposes. The National Stolen Property Act,
It might in fact be more convenient in the context of today‘s highly mobile society and shifting mores if Congress enacted uniform laws for child support, child custody and spousal support that could be universally applied and easily enforced without regard to state boundaries. That federal solutions to various social problems might prove efficacious and convenient, however, does not confer upon Congress the
However, as Lopez and Morrison make clear, Congress‘s jurisdiction is not premised on the severity of a problem, its susceptibility to a federal solution, or the fact that a federal solution might be more convenient. The failure of a parent to comply with a child-support order does not burden commerce among the states in any way. It does not erect the barriers to trade that the Founders so feared. Nor does the failure to comply with a state support order allow the channels of interstate commerce to be used for some nefarious or dangerous purpose. Moreover, the failure to pay child support interstate has no effect on any national scheme of economic regulation and does not “substantially affect” interstate commerce. In fact, the economic impact of failure to pay child-support intrastate is indistinguishable from the failure to pay after one has moved out-of-state.
It is beyond dispute that willful non-compliance with support orders has a detrimental, often devastating effect on single parents who depend on the payments to make ends meat. Likewise, a victim of crime, such as the plaintiff in Morrison, suffers psychological and emotional scars beyond calculation, but which, for purposes of the justice we are able to provide, might be converted into dollars and cents. However, the Supreme Court has refused to construe these individual losses, even when they are aggregated into terms such as “costs of crime” and lost productivity, as offenses against the American commercial system. See Lopez, 514 U.S. at 563-568.
This federal legislative choice is particularly unsettling given that congressional power to disturb state regulatory programs has customarily been thought to fall into three categories, into none of which the CSRA comfortably fits. Congress may, pursuant to its spending power, influence a state‘s regulatory decisions by attaching conditions to the receipt of federal funds. See South Dakota v. Dole, 483 U.S. 203, 206 (1987). Congress may also craft programs of “cooperative federalism” that offer a state the choice of regulating according to national standards or having state law pre-empted by federal regulation. See Hodel v. Virginia Surface Mining & Reclamation Ass‘n, 452 U.S. 264, 288-89 (1981). Finally, Congress may, of course, preempt outright state laws regulating private activity that is within the enumerated powers of the Constitution. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
In enacting the CSRA, Congress has followed none of these well-trodden paths. Although the Act does authorize grants to states to coordinate interstate child support enforcement efforts, see
The Constitution diffuses power to protect the citizenry against just such attempts to fragment official action from political accountability. See THE FEDERALIST No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1969) (“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments control each other, at the same time that each is controlled by itself.“). Among the structural protections of the Constitution is the doctrine of enumerated powers, and the Commerce Clause figures prominently among these. Although judicial efforts to maintain the federal balance through exposition of the Commerce Clause have “taken some turns,” Oklahoma Tax Comm‘n v. Jefferson Lines, Inc., 514 U.S. 175, 180 (1995), the Supreme Court reaffirmed in United States v. Lopez that there are some activities that states may regulate but Congress may not.
Although Michigan has a felony desertion statute on its books, it is rarely enforced and, in any case, it does not link criminal liability to judicial child support orders. See
The CSRA disrupts the state scheme. By creating a federal criminal penalty as a deterrent for disobedience of support orders in some circumstances, the Act renders nugatory the discretion invested in Michigan circuit court judges. Moreover, these judges are subject to election, see
In United States v. Morrison the Supreme Court warned against overly elastic conceptions of the Commerce Clause that would give Congress authority over “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” Morrison, 120 S. Ct. at 1744. Mindful of this admonition, I would hold that the provisions of the Child Support Recovery Act of 1992 contained in
Notes
The majority begins with the doubtful premise that a debt owed to one in another state is a “thing” in interstate commerce, regardless of whether payment is demanded or attempted. From there, the majority reasons that if the debt were to be paid, the payment would travel in the channels of interstate commerce, whose regulation falls within the category of keeping the channels of commerce open and free from impediments. The majority then concludes that because the Constitution authorizes Congress to keep commercial channels free from impediments, and because the payment of an interstate debt is a “thing” in interstate commerce, Congress may impose criminal penalties for failure to place such a payment into the channels of interstate commerce. This “if we had some ham we could have a ham sandwich if we had some bread” reasoning is unfortunate.
The distinct categories of Lopez, and the majority‘s fallacious reasoning are perhaps better illustrated by using as an example a hypothetical river barge carrying goods interstate. Using its power to keep the channels of interstate commerce free from impediments, Congress could legitimately prevent the building of dams or toll locks on the river. Likewise, Congress could properly regulate the barge and its cargo as things in interstate commerce. Or, Congress might regulate wholly intrastate aspects of production of goods carried on the barge if that production substantially affected the commerce of the nation. But today‘s majority opinion would allow Congress to criminalize the failure to place cargo on the barge under the theory that such failure might somehow stem the flow of the river, because the lack of the goods would substantially affect certain individuals residing downstream.
(1) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; (2) travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or (3) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000 . . . .”