United States v. Keith Douglas Bailey

any personally make calls “be- he did alleged America, in the indictment is

tween” the states UNITED STATES jury properly instructed Plaintiff-Appellant, meritless. The was guilty knowing him as a that it could find participant to defraud” that of the “scheme BAILEY, Douglas Keith “in fur- used interstate wire communications Defendant-Appellee. Faulkner, of the scheme.” 17 F.3d therance at 771-72. No. 95-50721. Appeals, United States Court of

E Fifth Circuit. jury Matrana of The convicted June charges. prove the ITAR To an ITAR viola tion, prove government must

defendant traveled interstate commerce engage in specific

with the intent to or facili illegal conduct in furtherance of a crimi

tate Ramos, enterprise.

nal (5th Cir.1995), F.3d cert. de -

nied, -, jury

L.Ed.2d 962 heard evidence Bi

that Matrana traveled from Louisiana to

loxi, Mississippi, January of 1994 to meet package ap

Grittini. Matrana received long

proximately 16 inches and 2.5 inches jury fairly

thick. The could conclude that cards, package example was a box of placed

of which was also into evidence as jury

Government Exhibit 30. The also had phone it the

before contents of calls between Grittini, implicate

Matrana and Matra- scheme, cheating

na in the and evidence that

Matrana induced to travel from Mis Grittini

sissippi to Louisiana on two other occasions. ample sup

There was evidence introduced to

port Matrana’s conviction.

Ill find no merit of defendants’

remaining arguments, reject and we them judgments

without further comment. The

are AFFIRMED. POLITZ, Judge,

Before Chief and SMITH DUHÉ, Judges. Circuit DUHÉ, Judge: Circuit We consider for the first time the reach of Congress’s authority to enact under Support Commerce Clause the Child Recov- Act, § ery it a 18 U.S.C. which makes “willfully pay past federal crime to fail[ ] support obligation respect due with to a child in who resides another state.” We conclude passes that the Act constitutional muster un- Congress’s plenary powers regulate der both the use the channels persons things in commerce and Accordingly, we commerce. reverse re- proceedings mand for consistent with this opinion.

BACKGROUND May, a Texas state court ordered Defendant-Appellee Douglas Bailey Keith per support month for his $500 Thereafter, four-year-old Bailey son. estab- ceased, lished residence Tennessee and time, period least for a to make the court- payments, ordered a violation of the state Government, court order. The the United States District Court for the Western Dis- Texas, responded by Bailey trict of charging Recovery Support violation of the Child (“CSRA” “Act”), § Act 18 U.S.C. charge moved to dismiss the on the ground represents an unconstitu- Congress’s legislative pow- tional exercise of agreed er. court The district and dismissed charge, holding that the CSRA exceeds Congress’s authority under the Commerce Clause.

The court offered two reasons First, holding. relying Supreme of its on the express Court’s reluctance in United States 549, 563-65, 1624, 1632, 131 (1995), L.Ed.2d to involve Kris, Justice, Department David S. matters, family federal courts in law DC, Washington, Plaintiff-Appellant. for constitutionally suspect court found Con Henry Antonio, Joseph Bemporad, San gress’s attempt the familial rela TX, Defendant-Appellee. tionship Bailey. Mr. and between Mrs. See Bailey, F.Supp.

United States v. (W.D.Tex.1995). Second, the court cited fed- concerns, stating both that the CSRA and the observation that eralism financial parents is an unconstitutional federal incursion into noncustodial could combat that poverty. prosecutions, Rep. criminal see id at See H.R. at 5 Judiciary reported that federal courts faced with defenses The House Committee validity challenging underlying approximately billion of the $5 support payments order would forced to billion due in child state court be $16.3 apply unpaid. these orders in remained review violation See id. The Committee principles comity. emphasized id “unacceptably federalism this deficit is InvoMng high,” especially at 729. the domestic relations ex- “in interstate collection cases, ception jurisdiction, par- to federal the court then where enforcement of fact, sup- ticularly concluded that the CSRA could not be difficult.” Id. In the Commit- ported within our constitutional structure. tee found that than more one-half of the timely appeals, parents See id The Government ar- custodial in interstate eases received only guing payments “occasionally, that the CSRA not fits comfort- seldom or never,” id, ably Congress’s plenary powers largely delinquent under par- because within making mockery by the Commerce Clause but also does not im- ents were “a of State law fleeing permissibly upset this nation’s delicate feder- across State lines to avoid enforce- by al-state balance. ment actions sup- State courts and child port agencies.” H7324, Cong. Rec. DISCUSSION (statement (daily 4,1992) Aug. H7326 ed. Cong. Hyde). Recognizing that state extra- constitutionality We review the of a tedious, dition and enforcement “remains a de federal statute novo. See Madison v. collection,” cumbersome and slow method of Parker, (5th Cir.1997). 104 F.3d H.R.Rep. Congress see No. Supreme precedent, Under Court our review strengthen, enacted the CSRA not to legislation enacted “to. under the Commerce supplant, State enforcement efforts.” 138 Clause is circumscribed a rational basis (statement Cong. Cong. Rec. at H7326 Court, therefore, inquiry. may This invali Hyde). legislation date enacted under the Commerce only if it Clause is clear that there is no congressional

rational a finding basis for I regulated activity sufficiently involves in delegates The Commerce Clause Con- See, e.g., Virgi terstate commerce. Hodel gress power “regulate Commerce with Ass’n, Mining nia & Reclamation Surface Nations, foreign among and the several Inc., States, and with the Indian Tribes.” U.S. 1(1981). 69 L.Ed. 2d Const, I, on, Early § art. cl. 3. the Su- punishes The CSRA the “willful[] fail[ure] preme Congress’s Court defined Commerce past support obligation a due powers broadly, rejecting sugges- Clause respect to a who resides another narrowly tion that “commerce” is limited 228(a). § State.” 18 U.S.C. The statute de- traffic, buying selling, “to or the “past support obligation” “any fines due interchange of commodities.” See Gibbons (A) determined under a court order amount — (9 Wheat) 1, 189, Ogden, 22 L.Ed. process pur- or an order of an administrative announced, The Court “Commerce suant to the law of a to be State due traffic, undoubtedly something is but it is person for the and maintenance of a more: it is intercourse. It describes the parent or of a child and the with whom nations, between commercial intercourse (B) living; the child is that has remained nations, branches, parts all its and is unpaid period longer year, for a than one or carrying regulated prescribing rules for $5,000.” greater is than 18 U.S.C. on that Id. at 189-90. intercourse.” Since 228(d)(1). § part century, the earlier of this the Court has Congress given pronouncement was motivated to enact breadth to Gibbons’s partly by revealing greatly expanded Congress’s CSRA statistics and has author- growing poverty single-family ity within homes under this Clause. states, recently reside in different a sufficient nexus Supreme summarized Court jurisdiction. Bailey exists to re- scope Congress’s Commerce Clause sponds requirement simply is

powers, identifying aspects three of inter- precedent guaranteeing only may condition regulate: state commerce that not, diversity (1) of state residence that does on channels of interstate “the use of the face, (2) implicate interstate commerce. commerce!;]” in- instrumentalities of “the Bailey’s argument unpersuasive. find commerce, things in persons terstate though even the threat as an initial matter that We note acüvities[;]” only from intrastate come diversity premise in his that the correct having “those activities a substantial parent residence between and child alone is relation to interstate commerce.” See upon Congress insufficient to bestow (holding 115 S.Ct. at 1629 regulate the Commerce 922(q), that 18 U.S.C. the Gun Free School hold, If we were to so we would Clause. Act, Congress’s exceeded Zones unwittingly open floodgates allowing powers regulate because the Act did not activity and all it so activity economic and contained neither desired, traditionally re- even those activities jurisdictional requiring element an interstate regulation, long oppos- served for state so express legislative history nexus nor ex- ing parties are need not diverse. We enter- plaining the Act’s connection to interstate fear, however, tain this because commerce). We conclude that just litigation, there is than the satis- more regulated by the CSRA falls within the first diversity-of-residence require- faction of the categories permissible regula- and second ment; by plus there is that the debt created therefore find that the is a tion and CSRA support the state order.3 As discussed be- Congress’s constitutional exercise of com- low, in these tandem are sufficient to powers.1 merce We decline to reach the constitutionality of the CSRA. question whether also CSRA be category regulation, “the chan- The first upheld category.2 under the third commerce,” nels of interstate refers to “the transportation through routes

interstate persons goods move.” United A Parker, F.Supp. States v. 911 842 (E.D.Pa.1995), Bailey challenges constitutionality grounds, rev’d. on other 108 (3d Cir.1997). Act, category, first on the CSRA the basis that the F.3d 28 The second terms, jurisdictional its lacks a nexus to “the instrumentalities of interstate com- merce, persons things interstate commerce. The re or' or in interstate Government commerce,” plies operates only “regulation protec- because the CSRA includes or parent pertaining things the noncustodial when and his child tion to instrumentalities or "substantially category 1. Six other circuits have considered the constitu affects" in the instant tionality of the CSRA under the Commerce case. See Part I.A. As the dissent itself infra Clause and have found constitutional for vari recognizes, we make no effort defend the Johnson, ous reasons. See United States v. 114 constitutionality of the CSRA on the basis that (4th Cir.1997); Parker, 476 F.3d United States v. failure court-ordered child Bong (3d Cir.1997); 108 28 F.3d United States v. "substantially affects” interstate commerce. (1st Cir.1997); iorno, 106 F.3d 1027 (10th Cir.1996), Hampshire, States 95 F.3d 999 wholly 3.Because the creation of the debt is - denied, -, cert. U.S. 117 S.Ct. 136 gains intrastate and because such debt interstate Mussari, (1997); L.Ed.2d 690 United States v. only parent characteristics out- when one moves - denied, (9th Cir.1996), F.3d 787 cert. U.S. of-state, argue jurisdictional some that the nexus - - (cid:127)-, (1997); L.Ed.2d really diversity supporting the CSRA of resi- (2d Cir.1996), Sage, United States v. 92 F.3d 101 dence and thus take issue with our statement - denied, -, cert. disagree. diversity enough. alone is not indicated, L.Ed.2d 727 Unless otherwise It does not matter that the creation of the debt is express opinion acceptance we no as to our wholly intrastate. That fact becomes irrelevant rejection reasoning employed of the therein. out-of-state, party once one moves because it is before, point, government puzzled by lengthy at this and not that the 2. We are dissent’s focus problems jurisdiction on the CSRA. attendant with the invocation of under the they complete mail, as move in interstate commerce.” this transaction could be the Kirk, wire, funds, F.3d an electronic transfer of or some Cir.1997) (en (5th banc) curiam) (per (opinion Mussari, other interstate channel. See J.) Jones, added), (emphasis 'petition 790; Nichols, F.3d at see also F.Supp. (U.S. filed, 5,May cert. U.S.L.W. Regardless used, 314. of the mechanism 1997) (No. 96-1759). Bailey’s obligation, or payment obligation payment and the itself debt, only implicates to his son not the use of placed will in be the flow of interstate com- the channels of interstate commerce but also they merce as invoke the channels instru- thing flowing is itself a in interstate com among mentalities of commerce the several Bailey’s obligation merce. thus falls within Bailey’s states.5 situation illustrates powers reg the constitutional point: Tennessee, resident of can ulate for these two reasons. satisfy his obligation court-ordered

to his in by making pay- Texas ments that will category, pay- As to the cross state lines. His first the child ment, therefore, obligation necessity must of interstate na invoke —made consequence diversity transportation ture as a direct interstate Congres- routes. requirement imposed upon obligor authority sional will continue to exist over obligee normally by be litigation long satisfied defendants as the —can payment necessarily contemplated by must move inter transaction the state court state commerce.4 The mechanism used to order flows commerce.6 position unsupport dissent assails our jurisdictional [u]nlike statutes that contain a Act, asserting ed the text of the ensure, that even if nexus through element "which would support payments one assumes interstate child case-by-case inquiry, [activity] ques- that the channels, “normally" travel in interstate their commerce,” Lopez, tion affects interstate regulation under the Commerce Clause is un 115 S.Ct. at the CSRA justified require because "the CSRA does not regulates every obligation, without use of channels or instrumentalities of interstate exception. prerequisite regula commerce as a to federal terms, therefore, By express the CSRA argument tion." See Part I.C. We find this infra does not the use of the channels or infirm. Whether the CSRA does or does not instrumentalities of interstate but require delinquent parents to use the channels or indiscriminately regulates all child instrumentalities of commerce is payments. wholly position irrelevant. The dissent’s belies See Part I.C. infra accept prac its reluctance to the economic and First, Lopez inapplicable we reiterate that is tical realities incident to the collection of child today solely our discussion as it involves support payments involving parent and child interpretation "substantially of the affects” cate living in different states. It our stretches collec gory, we imaginations decline to invoke here as a example tive con to summon one when Second, compliance justification stitutional for the with child orders will CSRA. not event, “require[] regular money any Lopez readily distinguishable. movement of Bongiorno, communications across state lines.” Whereas the Gun-Free School Zones Act offered Indeed, par 106 F.3d at 1032. the custodial no means which courts could ensure that a attempts past ent's to collect due will regulated activity nexus between the and inter mail, telephone, telegraph. involve the existed, expressly state commerce the CSRA lim Nichols, 302, F.Supp. United v. States its its reach to those debts that (S.D.N.Y.1996), aff'd., No. 1997 WL Bongiorno, cross state lines. See 106 F.3d at (2d 23, 1997) May (unpublished). Cir. 1033; Nichols, F.Supp. at 312-13. delinquent parent’s payment And the of that So, support will involve the while “the same. 6.That the CSRA is invoked whether the noncus- [may sup record port not] demonstrate that the child parent todial flees across state lines to avoid his required order in the instant case Mr. Bai payment obligation parent or the noncustodial channels, ley to use" interstate see Part infra advantage parent takes custodial I.C., pressed imagine we are hard how either stop child's movement out-of-state as occasion to (from Bailey Ms. as), would seek collection of Tex payment assessing is irrelevant in the constitu- Bailey or how Mr. would send or have sent tionality of the CSRA. Either circumstance (from Tennessee), sup the court-ordered child advantage "takes of the barriers to enforcement port payments invoking without the channels or Nichols, posed by F.Supp. state lines." instrumentalities of interstate commerce. Although legislative history 315. some indicates punish the CSRAwas motivated to 5. noncustodi- We admit confusion at the dissent’s insistence parent’s flight invoking Lopez authority payment, legisla- on al to avoid other as in contradiction position. posits history to our The dissent that: tive indicates that that situation was not 103, NLRB, B 301 U.S. e.g., Press Associated 650, 653, 128, 81 L.Ed. 57 S.Ct. constitutionality Challenging the Act’s Press’s not-for- Associated (holding that the category of Clause under the first Commerce “amount[ed] activities profit newsgathering Bailey argues by regulat authority, next ... within the intercourse to commercial order, ing his breach of a state court it “in because meaning of the Constitution” actuality impermissibly allows fed CSRA of channels of inter the constant use volve[d] jurisdiction over his eral courts to exercise communication”), Camps ... cited in to use interstate channels of com failure Harri Newfound/Owatonna, Inc. v. Town of CSRA, Bailey merce. maintains — 1590, son, -, essence, regula is not a when reduced to its L.Ed.2d 852 juris already existing commerce but a tion of bootstrap by Congress dictional enacted category, As to the second use interstate commerce. force individuals to thing of com support obligation itself is a arguments These lack merit. acquired charact that has an interstate merce 1032; Bongiorno, 106 F.3d at Mus er.7 See sari, debt 95 F.3d at 790. This continues long

move in interstate commerce as as contention, Addressing Bailey’s first we obligor obligee reside different states point is not a out actually Both long and as as the debt exists. Bailey of the nonuse of interstate channels. contemplated payment channels, and the obli made use of the interstate as con- therefore, CSRA, gation, independently form the templated the moment he away fulfilling without his interstate commerce. moved from Texas nexus to holding, example, H.R.Rep. focus of the CSRA. See for that it is interstate com the exclusive Moreover, transport 6. the text of the statute is merce to a woman from one state to No. carrier, upon flight; predicated it is the defendant's another in a common Hoke United predicated simply on the willful failure of the 227 U.S. 283- parent (1913); an interstate debt. In noncustodial carry 57 L.Ed. 523 across a state event, Bailey’s challenge to the constitution- private quarts line in automobile five whis ality ground of the CSRA on this must fail key personal consumption, intended applied in the instant case because him- Simpson, States v. 252 U.S. self fled across state lines. (1920); 64 L.Ed. 665 and to transmit lines, telegraph information over interstate Pen Co., sacola Tel. Co. v. Western Union Tel. Defining "commerce" "tantamount " (6 Otto) (1877), 'trade,' sup all cited in crisply the dissent states that child South-Eastern, port obligations "They are not commerce: 322 U.S. at 64 S.Ct. at 1171. obligations, unilateral not bilateral commercial The construction of the term "commerce” is a Consequently, support transactions.... payments child practical one and embraces economic pro quo, quid do not entail a the defin beyond traditionally that which is considered ing characteristic of a commercial transaction.” 572-575, commerce. See 514 U.S. at 115 See Part I.B. These are bald assertions 1636-37; infra at see also & Co. v. United S.Ct. Swift indeed, support and the cases cited in are una 375, 398, 276, 280, 196 U.S. 25 S.Ct. 49 vailing. That "commerce” has been defined to support obligations L.Ed. 518 Child "trade,” see, e.g., Camps include tonna, Newfound/Owa ensuing payments constitute ac- their economic — U.S.-, at-, 1590, at 117 S.Ct. subject tivity properly and are thus of Com- 1596, 852; 137 L.Ed.2d United States v. Robert Parker, regulation. e.g., Clause 108 merce son, 669, 671, 1732, 1733, 514 U.S. 115 S.Ct. (“Failure required payments F.3d at 31 to make (1995) curiam); (per 131 L.Ed.2d 714 United gives implicates rise to a debt which economic Ass’n, States v. South-Eastern Underwriters 322 activity.”); (holding Hampshire, 95 F.3d at 1003 533, 539, 1162, 1166, U.S. 64 S.Ct. 88 L.Ed. obligation pay money inter- that court-ordered Toshiro, 123, (1944); 1440 Jordan v. 278 U.S. activity regulatable by Con- state is economic 47, 48-9, (1928); 73 L.Ed. 49 214 ("This Sage, gress); case [CSRA] 92 F.3d at 105 Missouri, 275, 280, Welton v. 91 U.S. 23 L.Ed. plainly [the involves matters that meet definition conclusion, (1875), compel 347 does not Wheat) 1, 189, (9 Ogden, 22 in Gibbons v. 6 believe, the dissent would have us that “com (1824) among L.Ed. 23 of commerce the several ] merce” is limited to trade. intercourse, presupposes States. The Act an ob- definition, ligation pay money, and the intercourse con- Were we to a such narrow one."). than we would find ourselves inimical to those cases cerns more States obligation.8 Camps Kentucky imposing child New statute conditions on out- — -, at -, found/Owatonna, corporations of-state contracting with local (observ at 137 L.Ed.2d 852 Rejecting defense, entities. Id. this ing transportation persons that “the across Court held the state statute did not long recognized state lines ... has been as a afford the farmer relief because it was “re- ” (citing form of pugnant ‘commerce.’ Edwards v. Cal to the commerce clause” insofar as ifornia, 314 U.S. 172 & n. 62 S.Ct. part the contract was “a of interstate com- (noting merce, 166 & n. plaintiff lawfully which the could is immaterial whether or not the engage “[i]t permission without from the character”))). transportation is commercial in Kentucky.” state of Id. at 42 S.Ct. thereby placed He himself the debt in the rejected, 109-10. The Court therefore on Bailey, flow of interstate commerce. there grounds, Commerce Clause at- farmer’s fore, Moreover, doing nothing. is not tempt to frustrate the satisfaction of his obli- debt, failing pay willfully violating his he is gation pay on the interstate contract. requiring state court order him to do some Although the instant case involves obli viz., thing, to consummate an interstate gation order, arising from a court not a con delinquency transaction. His serves tract, premise is the same: as was true of CSRA, frustrate this consummation. The obligation, Bailey’s farmer’s contractual designed problem, to address this seeks to obligation money to send across state lines prevent the frustration of an interstate com immerses him in among commerce the sever mercial transaction that otherwise would Sage, 106; al states. See 92 F.3d at have occurred absent the defendant’s derelic Lewis, States v. F.Supp. subject tion. It is thus to federal control for (D.R.I.1996) (characterizing CSRA as statute agree that reason. We with the Second Cir essentially penalizes pay the failure to cuit that “[i]f can take measures debt, citing First Circuit under the poten Commerce Clause to foster holding ease that debt directly collection in surely tial interstate (citation volves interstate commerce omit prevent obligation the frustration anof ted)); Cureton, see also Sonneborn Bros. v. engage Sage, in commerce.” 92 F.3d at 105- 506, 515, 643, 646, 262 U.S. 67 L.Ed. (holding grounds CSRA constitutional on (1923) (holding that contracts for inter that it is valid of instrumentalities delivery state sale and of oil are “transac of, in, things persons moving [that] tions are interstate commerce); Hampshire, accord F.3d essence”). Furthermore, it cannot be over Supreme precedent supports Court if accept Bailey’s looked that we were to position. reasoning, “Congress nonuse per would be Milling Dahnke-Walker Co. v. Bondu regulate parents mitted to underpay who rant, required parents their but not (1921), defendant, L.Ed. Kentucky required who fail to their farmer, corpora contracted with Tennessee interpretation at all. Such an is unfathom tion to deliver wheat via rail cars to the Lewis, F.Supp. able.” at 1097. corporation’s Tennessee flour mill. The pause that if Congress farmer sent some wheat but to note even refused deliv rest, CSRA, sought, through regulate er the and the mill flour sued Ken tucky channels, state court for breach of nonuse of contract. Id. interstate would still The farmer insisted contract was invalid be within its constitutional command to do plaintiff satisfy held, insofar as the had Supreme failed to so. The Court has often "By reasoning,” conjectures, opinion 8. the dissent is tortured. Our does not stand for the "any person moving ipso to another state proposition that all interstate financial obli- facto obligations, federalizes all his financial and ‘uti- gations subject only to federal but lizes’ the channels of interstate mere- congressional attempts that at the federal en- ly by crossing a state line.” See note 12. infra are, obligations of such once state ini- forcement sort, opinion today nothing Our holds tiatives have failed. attempt the dissent's to characterize it otherwise trade[;]” Act contexts, punish or to under the Hobbs nonuse that the defendant’s several successfully prevented not shield inter- alone does “someone who interstate channels of by Sage, under the Com- purview trade extortion and murder.” him from federal state Motel, Atlanta In Heart merce Clause. 92 F.3d at 105.9 of States, 241, 250, 85 379 U.S. Inc. v. United Moreover, disagree who at- we with those (1964), 348, 353, L.Ed.2d S.Ct. tempt distinguish these eases as concerned jurisdiction upheld Clause Court Commerce traditionally something more commer- engage in that failed to a local motel over payment obli- cial than the rent when it refused to interstate commerce obligations gations. payment The held that guests. The Court to black rooms commercial; it involves the transfer is indeed rooms, inhib- failing the hotel by to rent fact, money In from one hand to another. crossing lines ited black travelers nothing That could be more commercial.10 interstate commerce thus obstructed underlying obligation for the re- reason Id. at that otherwise would have occurred. to a matter of domestic relations does lates In at 356. Standard Oil Co. position. not detract from this 1, 68, 31 221 U.S. (1911), upheld the Court 55 L.Ed. 619 Act, 1, 2, per- §§ 15 U.S.C. the Sherman under the Com- congressional action missible response Bailey’s jurisdictional prohibits Act merce Clause. The Sherman argument, bootstrap emphasize we that Con of trade and obstructions of inter- restraints gress impose underlying obli did not to facilitate com- state commerce order ap gation support. The CSRA occur absent the merce that otherwise would plies only has violated a Finally, when the defendant monopolistic behavior. defendant’s Green, 415, 420, upon him imposing state court order that 350 U.S. in United States order, therefore, 522, 525, (1956), obligation. state court Act, CSRA, obliges pay, and his the Hobbs 18 not the Court found constitutional state, punishes “interference volitional movement out of tandem U.S.C. extortion, fulfill that by rob- with his willful failure to obli with interstate commerce [by] outlaw[ing] gation, places obligation ... that in interstate bery physical or violence any degree.’” Congress simply brought way ‘in commerce. has such interference I, powers accept Bailey’s argument nonuse would Article section 8 to bear on To Circuit, mean, by emphasized which now carries the mettle Second pro- For the reasons “Congress power would have no interstate transaction. above, monopoly complete so as to thwart all we hold the CSRA falls within Con hibit authority. gress’s other commerce a line of Commerce Clause holding, position which is limited to the interstate Our should not be taken to 9. payment proposition and collection of child obli- "the more radical gations nothing more. empowered passive failure of indi- commerce," engage in see viduals to Furthermore, pause we here to note that the argues, say as the dissent for we note infra Supreme explained Court has that commerce nothing of sort. The cases cited herein hold among "a exists the several states where there is aegis under the 'continuous and indivisible stream of intercourse prevent the Commerce Clause to the obstruction among involving the states’ the transmission Bailey’s of commerce. "intentional refusal to money by large sums of and communications satisfy debt is as much an obstruction of [his] mail, telephone, telegraph." United States v. between the states as act” made Shubert, by public provi- unlawful accommodations South-Eastern, (1955) (quoting L.Ed. 279 Rights Act of sions of the Civil (holding U.S. at 64 S.Ct. at 1167 that insur Act, Mussari, Sherman the Hobbs Act. See aegis Commerce ance business falls within F.3d at alia, by, Clause because it is marked inter collec policy premiums payments tion of obli impugns ipse gations)); Bongiorno, 10. The dissent this statement at accord 106 F.3d 1031 regu- (holding Clause); “to dixit and as an invitation to constitutional under Commerce CSRA F.Supp. Hopper, v. 899 late all financial transactions.” See Part infra (same). (S.D.Ind.1995) I.B. Its attack is a mischaracterization of our involving alleged II physical case sexual and by plaintiffs abuse committed former hus- A against band their children because case did divorce, alimony, not involve issuance argues next the CSRA Lewis, decree); custody child see also by running transgresses sovereignty state F.Supp. (citing at 1106 involving cases under- exception afoul of the domestic relations lying custody proceedings divorce or child jurisdiction, diversity exception that has jurisdiction which federal courts exercised accep express not received constitutional despite exception domestic relations because by respected tance but nonetheless is federal being litigated actual claim did not involve Richards, e.g. courts. Ankenbrandt relations). familial 689, 693-94, 112 2206, 2209-10, S.Ct. (1992); Barber, 119 L.Ed.2d 468 Barber v. today stray Our decision does not our How.) (21 582, 16 prior Janzen, L.Ed. The holding Rogers 891 F.2d exception (5th Cir.1989). domestic relations obtains from Rogers diversity is a ac- jurisdiction statute, diversity 28 U.S.C. tion spouses between former in which the 1332, Ankenbrandt, § see 504 U.S. at plaintiff sought damages for emotional dis- at S.Ct 2212-13 and it no therefore tress suffered her when former al- husband where, here, application there exists legedly sexually daughter abused their jurisdiction. independent for basis federal denied her access the child. Id. at 96. diversity The instant action is based on although plaintiffs We held that claims grant jurisdictional express but on an au square- sounded in tort and thus did “not fall thority under 28 U.S.C. ly scope Because within the traditional of the field of clearly relations,” this case arises this Court’s domestic federal court resolution jurisdiction, question federal the domestic re inappropriate hearing was because claim exception presents lations no bar. type inquiry would necessitate that into relationship the marital better conducted Moreover, any analogy domestic explained state courts. Id. at 98. exception relations fails. Federal courts plaintiffs at the heart of the suit was the long jurisdiction have divested themselves of allegation that her former husband sexu- had only divorce, alimony, over the issuance of ally daughter. abused their Id. Federal decrees, custody finding and child that such court resolution of this would issue therefore domestic relations matters are within require relitigation of factual determinations unique province of state courts to decide. prior custody court made the state to its 703-04, 112 (artic See id. at at 2214-15 incongru- award and create risk of thus ulating policy excep considerations behind ous federal and state Id. decrees. tion). The way CSRA no endeavors ground;11 Significantly, suggested hallowed we seeks that had the merely support plaintiffs a child al order action been in which the court “one enforce ready promulgated by only already-set a state court. The need decide whether an cus- only aspect implicated tody support domestic relations child award has com- been with,” litigation family jurisdiction in a plied is the law charac federal would have (internal underlying proper. ter quotations order. That omit- been Id. alone, ted). however, just is insufficient invoke the The case that. before us involves exception domestic relations need final federal Federal courts not resuscitate jurisdiction. proper proceedings courts’ otherwise id. court to enforce the under- (holding lying 2216-17 order. We need exception press upon Bailey domestic great weight relations did not bar presents 11. The dissent no its untena- failure does not occasion position contrary. ignoring Apparently law,” ble to the family "federal intervention in the field of here, our discussion dissent contends that the claims, as it but rather is akin to enforcement law, upon family CSRAintrudes matters of there- long actions "over which the federal courts have by “subverting system.” the federal See infra jurisdiction.” Kegel, accepted United States v. however, recognize, Part fails to I.A. dissent (M.D.Fla.1996). F.Supp. imposition penalties that the of federal for the permitting the support order or to state child compel in effort to him courts federal collaterally attack the state to obligations law. defendant legal under state his fulfill in federal court court order B Bailey questions whether Con also CSRA, argues the has intruded

Bailey gress, enacting the CSRA next to comity. dominion enact principles and the traditional upon offends of federalism states’ review In the of federalism the Act calls for federal criminal laws. interests He insists Bailey disputes Congress’s and au application comity, state court orders and behavior, viz. possibility thority federal the thereby the to criminalize that increases sup upsetting pay balance of failure court-ordered the federal-state willful courts specifi by have chosen power port, the Constitution. which some states established address, al cally illustrated the not for whatever reasons. court Mussari district Congress Moreover, to our federal structure he contends that when leged offense by a already condemned way: criminalizes conduct here, state, done see Tex. Penal as Texas has prosecuted the being A defendant (West 1993), insults the Ann. 25.05 Code by action arguably could defend the CSRA between federal state delicate balance underlying challenging validity of the jurisdiction. e.g., United States criminal support order. Either fed- state court Enmons, 396, 411-12, 93 v. to review the eral court would be forced (1973). 1007, 1015-16, 35 L.Ed.2d 379 order, stay pending federal support order is case while the criminal recognize Bailey’s argument fails collaterally attacked in state court. Nei- comity are not principles of federalism light of these scenarios is desirable ther regulated activity compromised when comity speedy principles and the perime- constitutionally-defined falls inside provisions federal courts are bound trial Concluding congressional control. ters in criminal matters. Clause that the survives a Commerce CSRA 1360, challenge, say Mussari, we cannot now F.Supp. United States (9th prerogative improperly arrogated state’s (D.Adz.1995), rev’d., F.3d — denied, -, penalize the willful failure Cir.1996), 117 to cert. authority to support; draws 137 L.Ed.2d plenary powers the same from its response criminalize adopt of the court the succinct under the Commerce Clause. F.Supp. Ganaposki, (M.D.Pa.1996): 1076, 1083 C goes no further than the en-

[T]he and is not forcement of state court decrees argues that the CSRA next by Congress legislate attempt right upon state’s.sovereign tramples respect amount of child family and thus legislate in matters of law case; any any particular rul- payments the Tenth Amendment. We find contravenes paid and the ing that must be position. merit in this The Tenth Amend no paid is to the states. amount to be left provides powers delegat that “the ment Constitution, prosecution on the defen- ed to the United States A CSRA turns States, are by it to re prohibited It nor dant’s violation of a court order. state order, or to the respectively, the States not turn on the fairness of the served to does Const, “In a X. case underlying people.” amend. reasons the state court’s issu- authority order, involving be- relation- ... the division ance of the defendant’s governments, the ... ship spouse, with his children or former tween federal and inquiries the Commerce Clause involving relitigation [under other matter images of Moreover, mirror family Amendment] no lan- the Tenth issue. there is law delegated to If Con- allowing federal other. guage in the CSRA each Constitution, beyond gress in the Tenth Amend- the four corners of the court look

1233 of expressly thereby preserve sys- ment disclaims reservation limits and the federal States; power if power that to the a is an tem. sovereignty attribute of state reserved the Therefore, aegis laws enacted under the of Amendment, necessarily power Tenth it is “ the Commerce Clause ‘must be considered the has not conferred on Con- Constitution light system of our government the dual of gress.” York v. New United 505 U.S. and not be extended so as to embrace 2408, 2417, 120 L.Ed.2d upon effects so commerce indirect 120 them, and that remote to embrace view of CSRA, When enacted the it act- complex our society, effectually would oblit pursuant powers ed delegated under erate the distinction between is what national usurp the Commerce Clause. It did not the completely what is local and create a police powers regulate purely state’s intra- government.’” 557, centralized 514 U.S. at family state matters or criminal law. Pe- 115 (quoting S.Ct. 1628-29 NLRB v. Jones nalizing willfully comply those who fail to Laughlin Corp., & Steel 57 obligations, the CSRA (1937)). Lopez is regulates private purely conduct and makes landmark, signaling the revival of federal attempt no states as states. principle, ism as a constitutional and it must fact, legislative history id. In the indicates acknowledged be aas watershed decision in efforts, designed the CSRA is to aid state history the of the Commerce Clause.1 unsuccessful, unfortunately often are lost, however, of Lopez The lessons enforce interstate orders. The the instant rigorously ease. Rather than en- way supplant CSRA no intends to them. forcing power, the limitations on federal Bailey’s argument Tenth Amendment there- commands, Lopez panel majority upholds the fore fails. constitutionality the of a statute that contains no reference to regu- CONCLUSION commercial, lates an is not that above, For the reasons discussed find we law, family the invades field of a traditional objections unavailing. constitutional sovereignty. area of exclusive state There- Congress’s powers CSRA does not exceed fore, Support I conclude that the Child Re- under the Commerce nor en- Clause does it (“CSRA”) covery Act flouts the limitations on croach province on matters within the Clause, the Commerce flies in face of jurisdiction sovereignty. Federal is “ Lopez, and threatens to ‘obliterate the dis- proper. accordingly therefore RE- tinction between what national and what is

VERSE and REMAND. completely gov- local and create centralized ernment.’” Id. at at 1629. SMITH, Judge, JERRY E. Circuit dissenting: area, panel is a This difficult ma- jority diligent United States v. made a effort to reconcile (1995), jurisprudence applies 131 L.Ed.2d 626 the relevant as it Court principle Disagreeing majority’s reaffirmed the fundamental this case. with the conclusion, however, that the I respectfully Constitution established a national dissent. government of pow- enumerated limited Accordingly, emphasized ers. that the Court I. power granted under the limits, subject Lopez recognized,

Commerce Clause is see strict As the Court id. at duty police and it is the the courts those 115 S.Ct. at the seminal recognized Lopez This court has is a land must have the Commerce Clause law, '(cid:127)') judges (quoting Rybar, mark in constitutional even if the limits’ some States Cir.1996) J., (3d (Alito, disagreed precise have as to the boundaries 103 F.3d dis- Jones, J.) senting)) (opinion Compare Commerce Clause. with id. at Kirk, 1997) banc) (5th (en (recognizing Lopez Cir. F.3d establishes "outer J.) (opinion Higginbotham, boundary (recognizing Congress's jurisdiction on criminal un- “ Clause”). Lopez anything, Congress’s 'if means is that der Commerce Consequently, purports to do. power is describing Gib CSRA case constitutionality be sus- (9 Wheat.) 1, cannot L.Ed. Ogden, U.S. bons v. “affecting commerce” Marshall, tained under (1824), Justice in which Chief prong. Court, appropri writing defined reviewing an act of Con methodology for ate is a “affecting commerce” doctrine The (1) subject the of the gress asking whether as invention, judicial rather than faithful inter commerce; (2) so, if whether legislation is pretation text. The of the constitutional states; and other commerce affects the Congress to authorizes Clause Commerce legislation regulates the com whether the states, among the regulate commerce several Lopez, the Court at In merce. Id. 189-97. activity Like that commerce. not affects activities categories of three broad identified wise, test of a explains that the Gibbons the may regulate under Com Congress that Commerce Clause enacted under the statute First, regulate it the use merce Clause. legislation regulates com the is whether commerce. of interstate Sec of the channels merce, activity it regulates whether some ond, protect regulate to empowered it is Indeed, asks commerce. Gibbons that affects commerce, of interstate the instrumentalities states, the commerce affects other whether things in commerce. persons activity affects interstate not whether the Finally, may regulate those activities that it Gibbons, 22 at 194-95.2 commerce. See U.S. “substantially affect” interstate commerce. Nevertheless, presid Supreme Court has the 557-560, 115 at 1629-30. at S.Ct. Id. U.S. expansion of the Com ed over a dramatic legis categories of commerce None these century, authorizing Clause this merce lation, however, encompasses the CSRA. activity regulate any to government federal “substantially com

that affects” interstate See, Darby, e.g., merce. A. 451, 459-61, 100, 118-23, 61 S.Ct. U.S. Filburn, (1941); L.Ed. 609 Wickard authority regulate Although the to intra- 89, L.Ed. 122 “substantially in- that affect” state activities (1942).3 provided primary terstate expansion for the dramatic federal source Lopez, acknowledged that the In the Court century, as power in this as well the founda- legitimate “affecting is a commerce” doctrine jurispru- tion for recent Commerce Clause interpretation of the Commerce Clause dence, majority wisely declines to defend preserves on the as it some limit insofar constitutionality by claiming of the CSRA princi vindicating the scope power, of federal “substantially unpaid af- that child a gov established ple that the Constitution Lopez, commerce. In fects” interstate powers preserv ernment of enumerated specula- Supreme Court disavowed use ing the that which is distinction between given prove tive economic theories truly is national and that which indeed local. “substantially activity affects” interstate Id., at 1634. To 115 S.Ct. at employment of such theo- the limitations of the commerce illustrate any Congress “regulate permit ries would any use of the power, the Court disavowed that it found was related to eco- “affecting that would commerce” doctrine productivity of individual citizens: justify nomic in the field of federal intervention divorce, marriage, 563, 115 family (including family at law at 1632.4 law. id. example.” just custody), Id. at such an intru child Yet the CSRA occasions sion, subverting system by impos- the federal precisely at that is what the 1632. Yet 4. Indeed, agreed Lopez even the dissenters text nor Gibbons 2. Neither constitutional "interstate,” it, employ I will family beyond power Congress uses term but law is construing Lopez opinions and other have Clause. under the Commerce universally. it used almost (Breyer, e.g.,Lopez, at 115 S.Ct. at 1661 J., dissenting). at 3. See 584 — J., (Thomas, concurring) (discussing the 1642-50 doctrine). "affecting of the commerce” evolution ever, ing penalties support-payments federal for the failure to are not “com- support. merce.” state-ordered majority objection The dismisses this Lopez Court warned that if hand, assuming wave that court- “affecting can invoke commerce” doctrine support payments ordered child are “com- sovereign invade traditional areas payment support obligations merce”: “The law, ty, family hard-pressed such as “we commercial; indeed involves the transfer posit activity by an individual that money fact, one hand another. regulate.” is without Id. nothing could be more commercial.” Not Accordingly, S.Ct. at surprisingly, majority can no au- offer recognized expansive Court in such dixit, thority ipse terpretation of the Commerce Clause “would permit Congress would all finan- congressional authority bid fair to convert cial transactions. Such unlimited defini- general

under the Commerce Clause a tion would swell the Commerce Clause far police power of the sort the retained beyond the traditional context of “com- 567, 115 States.” Id. at 1634. fact, In requires merce.” “commerce” more Supreme the abjured wealth, Because Court has than a mere of history transfer as the regulation family the federal of law the jurisprudence under of Commerce Clause demon- guise doctrine, “affecting of the commerce” strates. panel majority the is forced to defend the Gibbons, In reject- Chief Justice Marshall constitutionality by claiming of the CSRA ed a narrow that definition would limit the that prongs the act satisfies the first two of traffic, term buying “commerce” to and sell-

Lopez. But federal criminalization the of ing, interchange and the of commodities. Id. payments regu- make support failure to child Instead, at 189. Gibbons defined “com- lates neither the nor channels the instrumen- broadly merce” to include “the commercial commerce, persons talities of interstate nor nations, parts intercourse between and of things or in interstate commerce. nations.” Id. at 189-90. Even under this definition, however,

broad the Commerce grant Congress Clause does not carte B. contrary, may blanche. To the imposes penalties CSRA criminal on intercourse, regulate only commercial so its parents fail satisfy who child trade, regulation the of confined to support obligation. payment If transactions, the of child activity.6 and business economic therefore, “commerce,” Therefore, constituted it in order to “person constitute a necessarily commerce,” would thing subject follow that interstate child in interstate to di- support payments “things Clause, in rect the under Commerce commerce,” meaning Lopez. within person thing engaged the of a be in must “com- Clause, For of purposes the Commerce how- mercial intercourse.”7 definition, countries, example, Congress 5. Under this for of other and between the citizens of regulate alimony, States”). would free to be wills and different estates, promises, gift and charitable contribu- tions, invading traditional areas state of sover- say is not 7. This that non-commercial activi eignty guise the of the Commerce Clause. beyond ties are the reach of the Commerce Clause, merely they but are not interstate Toshiro, See Jordan per regulated commerce se be and cannot direct (1928) (noting 73 L.Ed. 214 ly "things regu in To interstate commerce.” century judicially than “for more a it has been activities, therefore, late such non-commercial recognized that in a sense [commerce] broad legislate indirectly, pursuant must every phase embraces of commercial and busi- Lopez categories (e.g., channels inter intercourse”); activity and ness Weiton Mis- commerce, souri, state the instrumentalities inter " commerce, ‘substantially or activities that (noting "comprehends that commerce inter- commerce”). respect, purposes affect’ interstate In course of trade in and all its forms, prior Lopez depart including transportation, purchase, is consistent with caselaw in sale, exchange ing of commodities between the from Gibbons and the constitutional that, out, subject country our pointed citizens of citizens or text as I have the text neither language of the stat- plain As the terms such as “com services. interpret should attests, regulates child ute of the common under context merce” required a obligations pursuant they time were standing them at or an of an administrative court order order the word is axiomatic written. It been, process, private not a contract. See is, always tanta has “commerce” 228(d)(1)(A). Therefore, payment “trade,” goods exchange of U.S.C. mount is not conditioned on the of child and sale. purchase and services duty (6th reciprocal by the Dictionary performance of a obli- e.g., Black’s Law gee, obligor. it Conse- ed.1990); Dictionary nor does benefit Int’l New Webster’s ed.1958). payments (2d quently, do entail The cornerstone defining pro quo, characteristic founding quid power, ever since the transaction. era, regulate trade. commercial power to has been the meanings ‘commerce’ other “Whatever short, support payments include dictionaries, ency have included mere- of the elements but none period clopedias, and other books pursuant ly represent transfers wealth included trade: business show that Like Gun Free School court order. sold, bargained bought persons therefore, Act invalidated Zones meaning per And this and contracted. by its is “a criminal statute that the CSRA times.” United States v. to modern sisted do or nothing has to with ‘commerce’ terms Ass’n, 322 South-Eastern Underwriters enterprise, however any sort of economic 533, 539, 1162, 1166, L.Ed. 64 S.Ct. U.S. broadly might define those terms.” See one (1944).8 at Lopez, 514 U.S. at 115 S.Ct. 1630-31. Indeed, the essential characteristic of relationship its continues be “commerce” support pay- that child The conclusion Supreme Court to business and trade. The requires are not “commerce” us ments “in recently party is com- reaffirmed a the boundaries of Commerce define “ in ‘directly engaged it merce” when is Clause, distinguishing between “commercial” distribution, production, acquisition or of Lopez, and “noncommercial” activities. ” goods and in interstate commerce.’ services acknowledged be- Court that distinctions Robertson, States U.S. United and “noncommercial” ac- tween “commercial” 1732, 1733, 131 L.Ed.2d 714 115 S.Ct. problematic often and result tivities are (1995) (quoting v. American legal uncertainty in at some cases. Id. Indus., Bldg. Maintenance Nevertheless, this at 1633. S.Ct. 2150, 2157, (1975)).9 45 L.Ed.2d 177 system, uncertainty is inherent the federal thing “a in interstate In order to constitute interpret duty it is the of the courts to commerce,” therefore, subject regu- to direct the Constitution. Clause, the lation under the Commerce sub- The mandates this uncertain- Constitution

ject regulation engaged in of federal must be plenary ty by withholding from a “commerce,” which is tantamount to “com- enact- police power that would authorize or “trade.” mercial intercourse” every type legislation. ment of of Con- accordingly, operated within support payments, gress this framework Child legal uncertainty They ever since this Court not “commerce.” are unilateral obli- of judiciary’s duty it gations, transac- determined that was not bilateral commercial trade; tions; Any possible they say “to what the law is.” they do not involve do eliminating “legal uncer- purchase goods or benefit from this not entail the or sale of Likewise, recently 9. the court observed that refers to that affects inter nor Gibbons “engaged commerce. party state is commerce” if deemed to be provider “goods purchaser it is of 8. also 514 U.S. at Newfound/Owatonna, Camps services.” Inc. L, (“At (Thomas, concurring) the time Harrison, - U.S. -,-, Town of ratified, original was ‘commerce’ Constitution 137 L.Ed.2d bartering, selling, buying, and consisted of transporting purposes."). for these well tainty” expense would cludes that be CSRA constitutes a valid system pow- regulation Constitution’s enumerated of such “channels” and “instru- ers. imposes mentalities” because the statute criminal penalties only breach of in- (citations omitted). Accordingly; Id. we can- support obligations. respect- terstate child I duty not our lines and abdicate draw fully disagree. enforce the outer limits of the Commerce Clause, line-drawing even if this occasions prohibits The CSRA the willful failure to uncertainty. legal some satisfy support obligation a child “with re- Fortunately, although may be hard for spect to a child who resides in another distinguish courts to between “commercial” 228(a). State.” By express 18 U.S.C. and “noncommercial” activities some terms, regulates the statute interstate trans- cases, is not one them. We need not actions, channels instrumentali- technical invoke distinctions to determine ties of interstate commerce. There is no payments constitute whether jurisdic- mention of nor there a “commerce,” payments as these do not share tional nexus interstate commerce. Ac- essential characteristic commerce—the cordingly, effectively the statute requires relationship to trade commercial inter- only diversity citizenship among par- legal uncertainty Mindful of in- course. ties, reducing what is often called the “Inter- “commerce,” herent the definition Jus- to nothing Commerce Clause”11 more tice Holmes once observed that “commerce than the “Interstate Clause.” among legal not a States is technical majority agrees diversity that mere one, conception, practical but a drawn from citizenship enough is not to authorize federal & course business.” Co. v. Swift Clause, under the Commerce not- ing unwittingly open that such rule “would (1905). 276, 280, 49 L.Ed. 518 Child floodgates the allowing Congress regu- payments are the outside “course busi- desired, late all activity it so even ness” and cannot defined be as “commerce.” traditionally those activities for reserved Accordingly, practical interpre- even a regulation, long opposing state so parties “commerce,” sup- tation of interstate child cured, according diverse.” This defect is port payments reasonably cannot be classi- majority, by to the fact the that the child “things fied as in interstate commerce.”10 “can normally order be satisfied a payment necessarily that must move inter- C. majori- Consequently, state commerce.” the Having support pay- concluded that child ty concludes, support pay- interstate child “things ments are not com- interstate of, necessarily ments invoke the channels “substantially merce” and do not affect” in- in, flow interstate commerce. Not so. commerce, terstate I must the consider last possible ground regulation sup- Regardless sup- for of child of whether interstate child port “normally” payments port payments under the Commerce Clause: will in inter- travel (as assumes), or majority use of the channels instrumentalities of the state channels majority require interstate commerce. The con- CSRA does not the use of channels belied, suggestion 10. I at a loss am to understand the commerce.” This conclusion is itself, however, support obligation that the child rather hy support payments fact that child support payments, might than the child constitute Accordingly, are not “commerce.” the child "thing a While interstate commerce.” an support obligation “thing a cannot be in inter- debt, intangible right, may a such as commercial state commerce.” transaction, object a constitute of commercial "thing” it a is not that “moves in interstate - Florida, e.g., v. U.S. Seminole Tribe suggest commerce.” To to trans- otherwise is 1125-27, -,-, 1114, 134 116 S.Ct. form the Commerce Clause into an exercise in (1996); Corp. L.Ed.2d Petroleum v. 252 Cotton metaphysics. Mexico, 163, 192, 1698, New 490 U.S. 109 S.Ct. 1715, (1989); suggest v. Apparently, majority 104 L.Ed.2d 209 Merrion Jicaril means to that Tribe, 130, 154, support obligation Apache la 455 U.S. 102 child is interstate com- 894, (1982). “thing 910, per merce se and is in inter- therefore 71 L.Ed.2d 21 indiscriminately regulates all interstate commerce of interstate or instrumentalities Accordingly, regulation. support payments. the CSRA Un- prerequisite federal as a a permissible not jurisdictional nex- does constitute that contain a like statutes ensure, through the channels of interstate commerce. “which would us element Kirk, 997, [activity] 105 F.3d States v. case-by-case inquiry, United J.) Cir.1997) (en banc) Jones, (5th commerce,” (opinion of question affects interstate 1631, category -, (stating Lopez the first involves 115 S.Ct. at distinguished by express obligation, statutes that are every interstate regulates jurisdictional requirements).12 nexus exception. without not include an terms, therefore, the CSRA does the CSRA Because By express jurisdictional requirement, express nexus but of the channels regulate the use does not regulates all interstate child but instead of interstate instrumentalities 196, (noting jurisdic- significance 61 L.Ed. 12. The constitutional transportation requirement prohibits overstated. cannot be Act tional nexus Mann commercial, crossing activity an is the act If women interstate commerce for immoral se, per States, commerce state lines makes interstate purposes); 227 U.S. Hoke United regulation. subject cases, direct federal In such 33 S.Ct. L.Ed. jurisdictional express must be nexus no (1913) (same). statute, no need because there is included in express statute such an If federal includes predicate for feder- the constitutional establish nexus, jurisdictional providing a constitutional noted, however, regulation. As I al support payments have act, inquire foundation for the the courts will not commercial, are not underlying congressional regula- into motives " regulation. subject to direct federal hence are not non-commercial-activity. tion of author- '[T]he commercial, the mere act If is not an keep ity Congress to channels expose crossing it to direct state lines does injurious from immoral and uses free regulation, com- as it is not interstate federal sustained, frequently longer no has been ” justify regula- per merce se. In order to federal open question.’ Atlanta Motel v. Heart of activity, tion of such non-commercial jurisdictional provide express nexus to must Caminetti, (1964) (quoting L.Ed.2d jurisdictional nex- commerce. Such 196); 242 U.S. at S.Ct. at accord United provides the sole us constitutional foundation Darby, States 456, regulation. federal In the absence of such demonstrates, Hence, Lopez element, however, express jurisdictional Con- use of channels instrumen- gress empowered is not to exercise a federal commerce, or ac talities of interstate economic police over non-commercial activities. "substantially affect" interstate tivities that explained, support IAs have interstate child commerce, regulation justify the in order to of "commerce,” payments sub- are not are not inherently that are not commercial. activities ject regulation to federal as com- direct interstate jurisdictional is the of this The nexus source per Accordingly, re- merce se. the statute must justification. e.g., 18 U.S.C. constitutional jurisdictional quire express provide an nexus to § (prohibiting use of 1073 the the channels of regulation of the constitutional basis for federal by flight prosecu to avoid interstate commerce activity. this It The non-commercial does not. court); obligation testify 18 tion or the to in express jurisdictional absence distin- of an nexus (prohibiting § the use the chan U.S.C. 1201 of regulations guishes valid of the the transport to an ab- nels of interstate commerce channels and instrumentalities of interstate com- lines); §§ state 18 U.S.C. 2312- ductee across nexus, express jurisdictional merce. Absent an (prohibiting shipment goods the of 15 stolen the CSRAis unconstitutional. commerce); (pro § 18 U.S.C. 1341 interstate Finally, present nothing there is in the record fraud); hibiting perpetrate of the to use mails to indicate whether use of interstate chan- Orito, 139, see United States v. 413 U.S. also contemplated nels or instrumentalities was either 2674, 1, n. 140 n. 93 S.Ct. 2676 37 L.Ed.2d required. very ques- regard, this I much (1973) (noting pro 513 that 18 1462 U.S.C. panel majority’s the that tion unusual statement transportation in hibits of obscene material in channels, "Bailey commerce); States, made use the interstate v. terstate Brooks United CSRA, contemplated by 432, 435, 345, 346, the the moment he 267 U.S. 45 S.Ct. 69 L.Ed. fulfilling away from Texas without his (1925) (noting moved Ve 699 that the National Motor thereby obligation; support he himself prohibits transportation hicle Act the Theft commerce); placed com- the debt in the flow of interstate stolen vehicles interstate United moving Hill, reasoning, any person By merce.” 248 States v. 39 S.Ct. ipso his (noting federalizes all another state that the Reed facto obligations, prohibits transportation and-"utilizes" the channels of intoxi financial Amendment commerce, commerce); by crossing cating merely a liquor in Caminet of interstate interstate States, 470, 491-92, state ti United 242 U.S. line. -, if payments, it is constitutional state Clause. 115 S.Ct. at borders are characterized “channels” of commerce, rendering all interstate Although interpret we strive to statutes in subject legislation.13 to federal The order to avoid unconstitutional construc majority obligated to endorse this ratio- tion, it is also true that this canon con “ nale, stating “Bailey’s obligation that to send judiciary struction is ‘not a license money across state lines immerses him in language legisla rewrite enacted ” among commerce the several states.” This Chapman ture.’ v. United 500 U.S. definition, however, pares the “Interstate 453, 464, 1919, 1926, 114 L.Ed.2d Commerce Clause” “Interstate (1991) (quoting United States v. Monsan Clause,” belying the claim that the CSRA is to, solely diversity not a statute. Such inter- (1989)). L.Ed.2d The CSRA does pretation of the Commerce Clause would regulate not the channels or instrumentali grant Congress carte blanche to all commerce, ties of interstate and therefore it among parties, “opening transactions diverse exceeds the Commerce Clause. This court floodgates” to the creation of federal may not cure the constitutional defect police power.14 assuming necessary relationship to inter thereby state abdicating commerce and Furthermore, may cure this court not duty. constitutional by taldng

constitutional defect in the CSRA “judicial payments notice” that child police power, CSRA is of a redolent necessarily must the channels responsible travel and reflective exercise of nothing legislative authority interstate commerce. There is appropriate govern- to a record demonstrate ment of powers. Accordingly, enumerated payments necessarily must use such chan- not a CSRA is constitutional exercise of nels, power. CSRA, nor does the uphold record demonstrate commerce To law, the child in the “a purely order instant ease criminal no nexus to required use Mr. them. To assume whose in- enforcement payments upon powers interstate child must police trudes traditional states, necessarily utilize the channels or instrumen- would convert the commerce beg talities of ‘general pow- interstate commerce is to into a police reserved federal ” judicial question, abdicating obligation Kirk, er.’ (opinion F.3d J.).15 Jones, enforce the outer limits of the Commerce above, only 13. As are po- stated activities that in- notion of a Commerce Clause-based federal herently regulated solely be power gained commercial on lice States, full steam Perez subject that the basis federal 28 L.Ed.2d lines, rendering (1971), crossed it interstate application upheld federal activities, per se. Non-commercial statute local anti-loan-shark activities without support payments, subject such as child any showing of an interstate nexus effect. they regulation only federal if use a channel or jurisprudence unfortunately This blurred dis- commerce, instrumentality of interstate "sub- regulating tinction between commerce exer- stantially affect” interstate commerce. Absent a cising power police the to eliminate “evils” that nexus, therefore, jurisdictional the CSRA is con- welfare, i.e., general the threaten the distinction stitutional if we assume that state borders regulatory creating between a offense and are, definition, by of "channels” interstate com- "true” crime. expansive interpretation merce. This would ef- fectively nullify phrase the of "channels inter- the 15.Because I conclude that absence of a commerce,” however, necessarily which jurisdictional fatally nexus the con- undermines borders, implies something less than state CSRA, stitutionality I of the do not reach the expose would all interstate to a federal question Congress empowered reg- is whether police power. engage ulate the interstate com- failure Nevertheless, my express misgiv- merce. I must Although lineage 14. traces its such as cases ings interpretation of the about creative Ames, Champion v. Commerce Clause. (1903) (upholding the constitution- Act, suppose by ality Lottery basing of the the It is counterintuitive to that em- prohibit Congress regulate lottery powering ... the interstate sale of tickets on "to commerce states,” i.e., conduct), purpose, proscribe among evil the several framers

II. jurisdic- express contains no

The CSRA regulates an requirement, activi-

tional nexus commercial, and

ty that invades is not law, area of exclu- family of a traditional

field Therefore, sovereignty. with the

sive state as a constitutional value

revival of federalism Lopez, statute cannot I conclude that the So, scrutiny. I re-

survive constitutional diligent efforts of

spectfully dissent majority to this difficult panel confront interpretation.

issue of constitutional

In re JURY PROCEEDINGS. GRAND

No. 96-20728. Appeals, Court of

Fifth Circuit.

June (1956) (upholding prosecu- Hobbs Act Con- Constitution envisioned federal criminal because gress may prohibit actions that interfere tions for the failure utilize an interstate instru- violent i.e., commerce); support pay- mentality, interstate Standard Oil Co. failure to send (whether through ment the mails some means), (upholding Act other as a valid of L.Ed. 619 Sherman interstate Congress may prohibit the use the channels of interstate commerce. because restraints commerce). original interpretation This turns the understand- trade that obstruct interstate reg- ing Finally, protective on its head. insofar as these statutes the Commerce Clause Furthermore, majority the cases cited ulate activities that obstruct flow of interstate commerce, they proposition properly do not is under the classified regulate permits Congress prong use authorized to channels third failure “substantially Upon inspection, commerce. close economic activities may regulate each affect” interstate commerce. While the obstruc- case holds is not a "use" of the active obstruction interstate commerce tion of the com- with the of interstate com- channels of interstate interference flow "use,” protective legislation meaning such interference does merce. Such fundamen- mon tally proposition I from the radical exert a "substantial effect” on commerce. have different more however, empowered regulate pas- already explained, can- that the CSRA upheld "substantially engage sive in interstate not be failure of individuals Motel, majority e.g., and the commerce. Heart Atlanta affects" (upholding effort the act U.S. at Civil makes no to defend Rights Congress may theory. Accordingly, ma- prohib- the cases cited Act of 1964 because jority is em- do not demonstrate it racial discrimination that obstructs flow Green, commerce); powered use channels failure interstate commerce.

Case Details

Case Name: United States v. Keith Douglas Bailey

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 12, 1997

Citation: 115 F.3d 1222

Docket Number: 95-50721

Court Abbreviation: 5th Cir.