Child Support Recovery Act: Unification or Usurpation? The CSRA in the Aftermath of United States v. Lopez

  Introduction

It is imperative that we keep the focus on what is really at stake with the problem of delinquent child support. Although it is often portrayed as a battle between bitter ex-spouses and payments owed to adults, this issue is about only one thing: supporting our children. The widespread non-payment of child support in America today is tantamount to a widespread abandonment of our children.⁽¹⁾

Failure to pay child support affects the nation as a whole, and affects the states locally.⁽²⁾ The increasing seriousness of this crisis can no longer be handled by any one governmental entity.⁽³⁾ The issue of child support recovery requires federal solutions, as well as cooperation from the states.⁽⁴⁾

The lack of an effective means to enforce child support recovery is a leading cause of child poverty.⁽⁵⁾ Almost one-half of all non-custodial parents fail to pay child support.⁽⁶⁾ Nearly eighty percent of the eleven million recipients of Aid to Families with Dependent Children (AFDC),⁽⁷⁾ do not receive their court ordered or mandated child support.⁽⁸⁾ Approximately ten million children receive some form of public assistance,⁽⁹⁾ and one in every five children lives below poverty.⁽¹⁰⁾ The "failure to pay child support has become this nation's greatest source of financial insecurity."⁽¹¹⁾ The gravity of this situation demands federal and state attention.⁽¹²⁾

Congress has responded to the child support crisis with civil measures⁽¹³⁾ and since 1992, criminal measures.⁽¹⁴⁾ The Child Support Recovery Act (CSRA) makes it a federal crime to willfully⁽¹⁵⁾ avoid a past due⁽¹⁶⁾ child support obligation while residing in a different state than the child.⁽¹⁷⁾ The purpose of the CSRA is to impose a criminal penalty on non-custodial parents for evading their parental child support obligations by fleeing to another state.⁽¹⁸⁾ The CSRA has recently, however, come under intense judicial review.⁽¹⁹⁾

The challenges opposing the CSRA stem primarily from two provisions of the United States Constitution: the Commerce Clause⁽²⁰⁾ and the Tenth Amendment.⁽²¹⁾ These constitutional provisions are the bedrock for federal and state demarcation.⁽²²⁾ Congress has historically been granted great latitude in its authority under the Commerce Clause.⁽²³⁾ This effusive power has granted Congress to legislate in areas principally relegated to the states.⁽²⁴⁾ But for the first time in nearly sixty years,⁽²⁵⁾ the United States Supreme Court, in United States v. Lopez,⁽²⁶⁾ has placed into question this apparent unlimited source of congressional authority--particularly the congressional trend toward federalizing intrastate crime.⁽²⁷⁾

Notwithstanding its confined application to the Gun Free School Zones Act, (922(q)),⁽²⁸⁾ the United States Supreme Court in Lopez, has revitalized the debate over federalism and the Tenth Amendment.⁽²⁹⁾ Moreover, Lopez has now called into question the constitutionality of the CSRA, a federal statute enacted under the province of the Commerce Clause.⁽³⁰⁾

Within a span of one year, the constitutionality of the CSRA has been addressed by twelve federal district courts. Of the decisions thus far, nine district courts have held the CSRA constitutional while three have held otherwise.⁽³¹⁾ These inconsistent decisions underscore the disagreement over the appropriate scope of the Commerce Clause and the Tenth Amendment.⁽³²⁾ Similar to the constitutional issues addressed in Lopez, concerning section 922(q), the Court may well again be compelled to discern the balance of powers between the federal and state governments.⁽³³⁾

This Note will examine the constitutionality of the Child Support Recovery Act in light of Lopez, the Commerce Clause, and the Tenth Amendment. Part II discusses the history of child support.⁽³⁴⁾ This section will also discuss the cases that have addressed the constitutionality of the CSRA thus far, the Lopez decision, and the scope of power delineating the Commerce Clause and Tenth Amendment jurisprudence.⁽³⁵⁾ Part III analyzes the constitutionality of the CSRA in light of Lopez, the Commerce Clause and the Tenth Amendment.⁽³⁶⁾ A conclusion follows in Part IV.⁽³⁷⁾

  Background

A.  History of Child Support

The duty of parents to provide for the maintenance of their children, is a principle of natural law . . . laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish.⁽³⁸⁾

It has long been recognized that parents have a duty to provide both financially and emotionally for their children.⁽³⁹⁾ Current statistical data pertaining to the status of American children, nevertheless, indicates that there is a lack of financial support for these children.⁽⁴⁰⁾ According to the American Bar Association Presidential Working Group,⁽⁴¹⁾ America's child poverty rate is greater than that of any other comparable country.⁽⁴²⁾ It is expected that the condition of child welfare in the United States will continue to worsen, unless a viable solution can be immediately effectuated.⁽⁴³⁾ "At the current rate of progress [in child support collections], it will take over 180 years before each child served by a state child support agency can be guaranteed even a partial support collection."⁽⁴⁴⁾

Interrelated to the increase of child support default percentages, are the jurisdictional or enforcement problems faced by state agencies attempting to collect interstate child support on behalf of the custodial parent.⁽⁴⁵⁾ "These are the cases which state officials report to be clearly the most difficult to enforce, especially the `hard core' group of parents who flagrantly refuse to pay and whom traditional extradition procedures have utterly failed to bring to justice."⁽⁴⁶⁾ According to the United States Commission on Interstate Child Support, thirty percent of child support cases cross state borders.⁽⁴⁷⁾ Yet, ninety percent of these child support payments go uncollected.⁽⁴⁸⁾ These statistics emphasize the dilemma faced by federal and state agencies and underscore the difficulties in collecting delinquent interstate child support payments.⁽⁴⁹⁾

1.  Federal and State Child Support Legislation

Child support regulation traditionally has been the domain of state legislation.⁽⁵⁰⁾ But in response to escalating child support default Congress has been compelled to impose a succession of federal laws and federal mandates upon the states.⁽⁵¹⁾ These mandates provide federal supervision over state implemented programs.⁽⁵²⁾ Despite such increased federal and state intervention the results have been woefully inadequate.⁽⁵³⁾

a.  Federal Civil Statutes

The Uniform Reciprocal Enforcement of Support Act (URESA)⁽⁵⁴⁾ was originally created to provide custodial mothers easier and more expedient enforcement of child support orders across state lines.⁽⁵⁵⁾ The program relied on judicial enforcement by "initiating" and "responding" states.⁽⁵⁶⁾ The URESA programs have, however, proven to be inadequate, caused in part by conflicting state enforcement laws based on the two-forum system, and the inability of many custodial parents to afford attorney and court costs.⁽⁵⁷⁾

In 1975, Congress amended the Social Security Act to provide child support enforcement services.⁽⁵⁸⁾ This amendment, known as Title IV-D, mandates that all states provide child support enforcement services free of charge to AFDC recipients and, for a nominal fee to non-AFDC custodial parents.⁽⁵⁹⁾ Despite this increased effort, however, these provisions have nevertheless failed to increase child support recovery.⁽⁶⁰⁾

To give the states greater latitude in enforcing child support obligations, Congress enacted additional laws in 1984, 1986 and 1988.⁽⁶¹⁾ These statutory provisions created new devices to recover deficient child support payments, including withholding employment income, intercepting state and federal tax refunds, providing quasi-judicial administrative proceedings and garnishment, and lien imposition.⁽⁶²⁾ In addition, federal regulations were formulated to include the Federal Parent Locate System⁽⁶³⁾ and to allow the IRS to actively pursue difficult cases.⁽⁶⁴⁾ These statutes have also failed to correct the inefficiencies of interstate child support collections.⁽⁶⁵⁾

The most recent attempt by Congress to formulate a cohesive interstate collection system was the origination of the Uniform Interstate Family Support Act (UIFSA).⁽⁶⁶⁾ This enactment focuses on correcting the inherent deficiencies of the interstate child support recovery system.⁽⁶⁷⁾ Even though UIFSA is based on a two-forum structure, similar to URESA, it significantly expanded interstate child support collection by requiring "that the state in which the child resides have jurisdiction in support enforcement cases and that legal and binding court orders issued by a state . . . be honored by other states."⁽⁶⁸⁾ UIFSA has, however, been enacted in only twenty-eight states,⁽⁶⁹⁾ and because it is similar to URESA, in that each state may implement dissimilar mechanisms, the system has remained ineffective.⁽⁷⁰⁾

b.  Effectiveness of Federally Mandated Child Support Reform

The adoption of any new federally mandated statute requires that each state supplement its existing programs with the additional provisions of the new mandate.⁽⁷¹⁾ In the past, this created a multitude of jurisdictions with diverse programs, procedures, and results, which lead to confusion and inefficiency.⁽⁷²⁾ The child support enforcement system has consequently become overburdened and underfunded.⁽⁷³⁾ Comparatively, the percentage of child support recovery has been stagnant or has actually decreased since the 1970s.⁽⁷⁴⁾ In effect, regardless of how diligent a case worker performs, it is unfeasible for him or her to keep up with the backlog of current cases and the continuously expanding new case load⁽⁷⁵⁾--particularly because as the case load increases the available financial resources do not.⁽⁷⁶⁾ An inundation of new federal mandates would, therefore, serve only to impede an already over-extended, over-regulated system.⁽⁷⁷⁾ This is evinced by the fact that "[d]espite all the innovative legislation passed by Congress in the past ten years, government-funded agencies have never collected child support for more than one out of every five families."⁽⁷⁸⁾ "The main reason the current system is inadequate is that nonsupport has become a national problem but is administered on a state-to-state basis."⁽⁷⁹⁾

c.  State Criminal Legislation

Most states have statutes that impose a criminal penalty on delinquent child support obligers.⁽⁸⁰⁾ Employing criminal statutes to enforce child support payments presents unique advantages in child support recovery and default deterrence.⁽⁸¹⁾ First, criminal charges are given a higher priority than most civil matters, resulting in a more active pursuit by state officials⁽⁸²⁾ leading to more expedient enforcement.⁽⁸³⁾ Additionally, extradition is available for criminal cases unlike civil cases.⁽⁸⁴⁾

There are, however, deficiencies in state-based criminal child support recovery.⁽⁸⁵⁾ A state child support crime is generally considered a misdemeanor,⁽⁸⁶⁾ and only can be elevated to a felony under certain circumstances.⁽⁸⁷⁾ For criminal child support enforcement statutes to be more effective, they must carry harsher penalties, such as a felony charge, because misdemeanors are given a lower priority than felony cases.⁽⁸⁸⁾ Additionally, extradition is very costly. Because prosecutors have broad discretion in selecting cases, they usually select only those with a high propensity of financial recovery,⁽⁸⁹⁾ thus leaving a significant portion of custodial parents without effective legal interstate remedies.⁽⁹⁰⁾ Moreover, there are vast discrepancies between each state's enforcement procedures, ability to locate obligers, child support payment rates and orders, and most problematic is the inability of states to enforce child support orders across state lines.⁽⁹¹⁾ These variances in state laws and procedures, contributing to inefficient child support recovery, have compelled Congress to enact a federal criminal statute enforcing interstate child support obligations.⁽⁹²⁾

d.  Federal Criminal Remedies

The CSRA makes it a federal crime for a non-custodial parent to willfully avoid his or her child support obligations for a child who resides in a different state.⁽⁹³⁾ The CSRA is applicable only if the amount in arrears exceeds $5000 or the length of default exceeds one year.⁽⁹⁴⁾

The purpose of the CSRA is not to replace the current system with a single federal regime, but rather to promote cooperation among both federal and state entities to work together to achieve greater results.⁽⁹⁵⁾ By emphasizing a cooperative system between state and federal agencies and using the federal government's superior capabilities in tracking and locating nonsupport parents and their employers, the intended result is to increase interstate child support collection.⁽⁹⁶⁾ Furthermore, the CSRA is applicable only against the "most egregious violators,"⁽⁹⁷⁾ and used only after all state procedures have been exhausted and have failed to achieve adequate results.⁽⁹⁸⁾

B.  Applicable Case Law

1.  United States v. Lopez

In United States v. Lopez,⁽⁹⁹⁾ the United States Supreme Court, in a 5-4 decision, held that the Gun Free School Zones Act of 1990 was unconstitutional.⁽¹⁰⁰⁾ Section 922(q) makes the possession of a firearm, within one-thousand feet of a school zone, a felony.⁽¹⁰¹⁾

Consistent with prior Supreme Court decisions, the Lopez Court recognized "three broad categories of activity that Congress may regulate" under the Commerce Clause.⁽¹⁰²⁾ These categories include "the channels of interstate commerce. . . . the instrumentalities of interstate commerce. . . . [and] those activities having a substantial relation to interstate commerce."⁽¹⁰³⁾ Even though the Lopez decision did not overturn any prior case law, federal courts attempting to apply Lopez to other federal statutes promulgated under the Commerce Clause have had an exceedingly difficult time interpreting the same.⁽¹⁰⁴⁾

2.  United States v. Hampshire

The first court to uphold the CSRA was a Kansas district court in June, 1995. In United States v. Hampshire,⁽¹⁰⁵⁾ the court concluded that the CSRA was constitutional under the Commerce Clause.⁽¹⁰⁶⁾ The court reasoned that the CSRA withstood the Lopez standard and regardless of whether an interstate nexus existed, the CSRA would survive based upon the cumulative effect commerce standard.⁽¹⁰⁷⁾ The court further opined that the Tenth Amendment was not a bar to the CSRA because the Act regulates individuals, not states.⁽¹⁰⁸⁾

3.  United States v. Mussari

In July of 1995, the district court of Arizona was the first court to strike down the CSRA as unconstitutional. In United States v. Mussari,⁽¹⁰⁹⁾ the court, using the three-part standard from Lopez, held that the CSRA was an unconstitutional exercise of Congress' power.⁽¹¹⁰⁾ The court feared that upholding the CSRA would be in direct conflict with established principles of federalism and comity.⁽¹¹¹⁾ The court further reasoned that the CSRA had neither a substantial relation to interstate commerce nor a sufficient interstate nexus;⁽¹¹²⁾ thus, it was also in violation of the Tenth Amendment.⁽¹¹³⁾

4.  Additional CSRA Cases

Eight other federal district courts, reiterating the outcome in Hampshire, have held that the CSRA is constitutional.⁽¹¹⁴⁾ Two district courts, however, in accordance with Mussari, ruled that the CSRA was unconstitutional.⁽¹¹⁵⁾

5.  Circuit Court Decisions

On Appeal to the Ninth Circuit, the court, reversing the Mussari decision⁽¹¹⁶⁾ held that the CSRA was constitutional under Congress' Commerce Clause authority.⁽¹¹⁷⁾ The court opined that "[t]he frustration of satisfaction of the obligation by the failure of the debtors to pay is an impediment to interstate commerce that Congress can criminalize . . . ."⁽¹¹⁸⁾ The court further asserted that even though the child support order originated from familial relations, the creation of the order simultaneously created a debt.⁽¹¹⁹⁾ "Like any other debt, it is a thing of value, one of millions of obligations that make up the stream of commerce subject to congressional control."⁽¹²⁰⁾ The court reasoned that because Congress was acting within the preview of one of its enumerated powers, (the Commerce Clause) the Tenth Amendment was not implicated.⁽¹²¹⁾

Also on appeal, the Second Circuit court affirmed the decision in United States v. Sage,⁽¹²²⁾ upholding the CSRA as constitutional.⁽¹²³⁾ The court stated that "[t]he Act presupposes intercourse, an obligation to pay money, and the intercourse concerns more States than one."⁽¹²⁴⁾ The court, acknowledging that the states have had an exceedingly difficult time enforcing out-of-state child support orders,⁽¹²⁵⁾ averred that "the power granted Congress by the Commerce Clause is `a positive power,' a power `to govern affairs which the individual states, with their limited territorial jurisdictions, are not fully capable of governing.'"⁽¹²⁶⁾ The court concluded that to strike down the CSRA would serve to benefit only the obligers of child support debt by bestowing upon them the means to evade their obligations.⁽¹²⁷⁾ Echoing the Second and Ninth Circuits' reasoning,⁽¹²⁸⁾ the Tenth Circuit, in United States v. Hampshire,⁽¹²⁹⁾ also affirmed the district court's decision, upholding the CSRA as constitutional.⁽¹³⁰⁾ The Tenth Circuit emphasized that "Congress sought `to strengthen, not supplant, State enforcement.'"⁽¹³¹⁾

C.  Congressional Power Under the Commerce Clause

Article I, Section 8, Clause 3 of the United States Constitution grants Congress the power "[t]o regulate Commerce . . . among the several States."⁽¹³²⁾ The first significant interpretation of the Commerce Clause was established 171 years ago in Gibbons v. Ogden,⁽¹³³⁾ wherein Chief Justice John Marshall defined the scope of the congressional commerce power: "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution."⁽¹³⁴⁾

The Court emphasized, however, that Congress' power under the Commerce Clause extended only to activities that "affect the States generally; but not to those which are completely within a particular State."⁽¹³⁵⁾ Although Gibbons appeared to grant Congress broad constitutional authority, the Court's subsequent decisions generally adhered to a narrow interpretation of the Commerce Clause.⁽¹³⁶⁾ This was the trend until the introduction of President Franklin D. Roosevelt's New Deal administration.⁽¹³⁷⁾ At this point, the Court began to expand its narrow reading of Congress' power to regulate not only in economic but also in non-economic spheres, under the Commerce Clause.⁽¹³⁸⁾

The standard espoused by the Supreme Court, in determining the constitutionality of a federal statute promulgated under the Commerce Clause, has been circumscribed by several significant cases.⁽¹³⁹⁾ The Court in NLRB v. Jones & Laughlin Steel Corp.,⁽¹⁴⁰⁾ abandoned the once predominant test of a national and local commerce dichotomy,⁽¹⁴¹⁾ holding that intrastate activities which "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions," are within Congress' power to regulate under the Commerce Clause.⁽¹⁴²⁾ For the first time, in United States v. Darby,⁽¹⁴³⁾ the Supreme Court rejected the Tenth Amendment as an independent restriction on the Commerce Clause, stating that "[t]he amendment states but a truism that all is retained which has not been surrendered."⁽¹⁴⁴⁾ This decision effectively eliminated any possible challenges against Congress' Commerce Clause authority based upon federal usurpation of state police power.⁽¹⁴⁵⁾

The scope of the Commerce Clause was augmented further in Wickard v. Filburn.⁽¹⁴⁶⁾ In this case, the Court stated that federal power under the Commerce Clause was "`plenary,'"⁽¹⁴⁷⁾ and as such:

even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect."⁽¹⁴⁸⁾

Congress, therefore, has the power to regulate intrastate activities, taken as a class and in the aggregate, if such activities substantially affect interstate commerce.⁽¹⁴⁹⁾ This standard, commonly referred to as the cumulative effect theory, is credited with permitting Congress to regulate beyond purely interstate activities.⁽¹⁵⁰⁾

In 1964, the Supreme Court faced the issue of whether a federal law regulating racially based discrimination was prohibited by the Constitution.⁽¹⁵¹⁾ The most poignant case in this area was Heart of Atlanta Motel, Inc. v. United States,⁽¹⁵²⁾ in which the Court created the rational-basis test.⁽¹⁵³⁾ The Court stated that if Congress had a rational basis for finding that a regulated activity affected interstate commerce, the Court would not seek further explanation for the constitutional basis of the statute.⁽¹⁵⁴⁾ The Court opined that even if the activity is of a purely local character, "`[i]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.'"⁽¹⁵⁵⁾

Seven years later the Court, in Perez v. United States,⁽¹⁵⁶⁾ held that Congress could regulate intrastate criminal activity, asserting that "`[e]ven where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce.'"<sup>(157)</sup> The Supreme Court noted that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power `to excise, as trivial, individual instances' of the class."⁽¹⁵⁸⁾

The most recent decision in Commerce Clause jurisprudence is United States v. Lopez.⁽¹⁵⁹⁾ In Lopez, the Court reiterated the "three broad categories of activity that Congress may regulate" under the Commerce Clause.⁽¹⁶⁰⁾ "First, Congress may regulate the use of the channels of interstate commerce."⁽¹⁶¹⁾ "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, . . . even though the threat may come only from intrastate activities."⁽¹⁶²⁾ Third, "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."⁽¹⁶³⁾

D.  The Tenth Amendment: Limitation or Truism

The Tenth Amendment provides that "[t]he 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."⁽¹⁶⁴⁾ Tenth Amendment jurisprudence has had an almost inverse relationship with the expansion and contraction of the Commerce Clause.⁽¹⁶⁵⁾ Generally, a Tenth Amendment challenge is invoked when Congress attempts to regulate an activity that has traditionally been within the province of the states.⁽¹⁶⁶⁾

In 1941, the Supreme Court, in United States v. Darby,⁽¹⁶⁷⁾ held that the Tenth Amendment was "but a truism," and as such was not an independent limitation on congressional authority.⁽¹⁶⁸⁾ This was the predominant interpretation of the Tenth Amendment until National League of Cities v. Usery,⁽¹⁶⁹⁾ in 1976.⁽¹⁷⁰⁾ In Usery, the Court stated that the Tenth Amendment operated as an independent bar precluding Congress from regulating within the province of the states.⁽¹⁷¹⁾ Ten years later, the Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority,⁽¹⁷²⁾ overruled Usery,⁽¹⁷³⁾ once again proclaiming that the Tenth Amendment was not an independent limitation on congressional authority.⁽¹⁷⁴⁾ The Court opined that a state's interest is protected by means of state representation through Congress.⁽¹⁷⁵⁾ In other words, Congress' power to regulate under the Commerce Clause is limited by the procedural "safeguards of the political process," provided through electoral proceedings.⁽¹⁷⁶⁾

The Supreme Court, in New York v. United States,⁽¹⁷⁷⁾ established the prevailing Tenth Amendment standard.⁽¹⁷⁸⁾ The issue in that case was whether three provisions of the Low-Level Radioactive Waste Policy Amendment Act⁽¹⁷⁹⁾ exceeded congressional Commerce Clause power by infringing upon state sovereignty under the Tenth Amendment.⁽¹⁸⁰⁾ The provisions in dispute were monetary incentives,⁽¹⁸¹⁾ access incentives⁽¹⁸²⁾ and a "take title" provision.⁽¹⁸³⁾ The Court upheld the monetary and access incentives as being within congressional authority under Congress' taxing, commerce and spending powers.⁽¹⁸⁴⁾ The Court, however, struck down the "take title" provision as an unconstitutional intrusion upon state sovereignty.⁽¹⁸⁵⁾ The Court reasoned that the "take title" provision coerced the states into accepting one of two federally mandated objectives.⁽¹⁸⁶⁾ The provision meant that the states could either comply with the provision to procure waste disposal accommodations or take title to the waste generated within the state.⁽¹⁸⁷⁾ The Court stated that "`the Act commandeer[ed] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,' an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution."⁽¹⁸⁸⁾ The Court emphasized that to allow otherwise would diminish the accountability of federal officials, leaving state officials to "bear the brunt of public disapproval."⁽¹⁸⁹⁾ In addition, the Court resurrected the first part of the Usery test,⁽¹⁹⁰⁾ asserting that "[i]n providing for a stronger central government . . . the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States."⁽¹⁹¹⁾ Although the Court stated that the Tenth Amendment "confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States," it has, nevertheless, fostered confusion over the proper balance of power between the Commerce Clause and the Tenth Amendment.⁽¹⁹²⁾

  Analysis

A.  The CSRA in the Aftermath of Lopez: Limitations on the Commerce Clause

In Lopez, the United States Supreme Court recognized three categories in which Congress may regulate activities under the authority of the Commerce Clause.⁽¹⁹³⁾ The first category allows Congress to regulate the use of the channels of interstate commerce.⁽¹⁹⁴⁾ The Court has defined channels of interstate commerce as transportation "`among the several states.'"⁽¹⁹⁵⁾ Congress is authorized to regulate the channels of interstate commerce when they are being used for injurious or immoral purposes.⁽¹⁹⁶⁾

Several district courts have concluded that even though the CSRA does not explicitly require flight by the non-custodial parent, it does regulate the use of channels, therefore, falling within the first category.⁽¹⁹⁷⁾ In United States v. Kegel,⁽¹⁹⁸⁾ the district court observed that the failure to pay child support affects the channels of interstate commerce regardless of whether it was the noncustodial or custodial parent who crossed the state line.⁽¹⁹⁹⁾ It is the willful and intentional failure of the obligor to pay child support that creates the injurious or immoral results.⁽²⁰⁰⁾ The district court in United States v. Nichols⁽²⁰¹⁾ embraced the posture that:

When "deadbeat" parents shamelessly manipulate a foundation of our system of government--State sovereignty--in order to avoid paying child support, they undermine an even more fundamental foundation of society--the family. This manipulation can occur with equally detrimental results whether the non-custodial parent purposefully avails him or herself of channels of interstate commerce by fleeing the state which issued the support order, or whether he or she simply seized on the custodial parent and child's relocation out-of-state as an occasion to stop payments. Either route takes advantage of the barriers to enforcement posed by state lines.⁽²⁰²⁾

The second category enables Congress to regulate the instrumentalities of interstate commerce.⁽²⁰³⁾ This category is inapplicable to this analysis, because instrumentalities have been defined by the Court to include only objects or persons used for transportation across state borders.⁽²⁰⁴⁾ It cannot, therefore, be argued that the CSRA is regulating the instrumentalities of interstate commerce.⁽²⁰⁵⁾

The third category discussed in Lopez, grants Congress the power to regulate activities having a substantial relation to interstate commerce.⁽²⁰⁶⁾ The Court emphasized that activities substantially related to interstate commerce are "those activities that substantially affect interstate commerce."⁽²⁰⁷⁾ To determine whether the CSRA falls within this category it is, therefore, necessary to ascertain whether the activity of willfully failing to pay child support substantially affects interstate commerce.⁽²⁰⁸⁾ The Lopez Court espoused several sub-categories to be weighed when ascertaining whether an activity is substantially related to interstate commerce.⁽²⁰⁹⁾ According to Lopez, a reviewing court should consider whether the activity is related to commerce, has a sufficient interstate nexus, has a rational basis, and is supported by legislative findings.⁽²¹⁰⁾

1.  Section 922(q) Distinguished from the CSRA

The Lopez Court stated that 922(q),⁽²¹¹⁾ criminalizing the possession of a gun on or near school grounds, "by its terms ha[d] nothing to do with `commerce' or any sort of economic enterprise,"⁽²¹²⁾ nor was it "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."⁽²¹³⁾ The supporting line of cases creating the current Commerce Clause standard have not, however, "focus[ed] upon the economic nature of the activity regulated. Rather, they focused upon whether that activity affected interstate or foreign commerce."⁽²¹⁴⁾ Moreover, the Lopez Court has not restricted Congress from regulating only those activities which are commercial in nature, rather it held that the mere possession of a firearm in or near a school zone is neither commercial in nature nor a substantial burden in the aggregate on interstate commerce.⁽²¹⁵⁾ Notwithstanding the Lopez decision is inapposite to the CSRA, for the CSRA does regulate an activity which is commercial in nature.⁽²¹⁶⁾

It is essential to recognize that section 922(q) criminalizes only the individual instances of the purely intrastate activity of gun possession on school grounds, regardless of whether a gun has ever been within interstate commerce.⁽²¹⁷⁾ The interstate nexus of 922(q) was so attenuated that the commercial or economic effect on interstate commerce was immoderately indirect and remote.⁽²¹⁸⁾ To have upheld 922(q) as constitutional, the Court would have had to "pile inference upon inference."⁽²¹⁹⁾ This is not occasioned, however, under the CSRA.⁽²²⁰⁾

a.  Commercial Relationship

Commerce has been defined as intercourse between states.⁽²²¹⁾ It is well settled that "intercourse includes commerce in intangibles,"⁽²²²⁾ that is, "[a] nationwide business is not deprived of its interstate character merely because it is built upon sales contracts which are local in nature."⁽²²³⁾

Support payments might not be considered traditional items of "commerce," but the non-payment of interstate child support obligations is economic activity in a way that mere possession of a handgun in a school zone is not. The non-custodial parent reaps an economic gain each time a support payment is withheld, while the offspring suffers an economic loss.⁽²²⁴⁾

Moreover, child support payments are a necessary part of a custodial parent's income.⁽²²⁵⁾ Without this income, the custodial parent cannot provide adequate housing, food, clothing, medical care and other necessities to his or her child[ren].⁽²²⁶⁾ It can, therefore, be asserted that the regulated activity under the CSRA has a commercial character and an evident commercial nexus, neither of which is indirect or remote.⁽²²⁷⁾ Additionally, even though the Lopez Court stated that 922(q) was not an essential part of a larger regulatory scheme,⁽²²⁸⁾ the United States Supreme Court has never required that a federal statute must be to be upheld.⁽²²⁹⁾ That an activity is part of a larger economic enterprise serves only as a "measure of the potential impact of the activity in question"--it is not compulsory.⁽²³⁰⁾

b.  Aggregate Effect Theory

The United States Supreme Court has upheld several federal statutes wherein the commercial nexus and the substantial relationships to interstate commerce were not as readily apparent.⁽²³¹⁾

In Wickard v. Filburn,⁽²³²⁾ a wheat farmer challenged the Agriculture Adjustment Act of 1938,⁽²³³⁾ arguing that the Act attempted to regulate wheat production meant solely for home consumption.⁽²³⁴⁾ The Supreme Court upheld the Act stating that while an individual wheat farmer's impact on the price of wheat was minuscule and indirect, the impact of all wheat farmers' home consumption was significant and, therefore, within the scope of the Commerce Clause.⁽²³⁵⁾

"The willful non-payment of past due child support creates (not results in) a substantial obstruction to and drain upon the national economy that is no less an impact on interstate commerce than the collective affect [sic] of the home grown wheat in Wickard."⁽²³⁶⁾ If Congress has the authority to regulate an entirely intrastate activity to increase the market price of wheat, certainly, Congress also has the authority to "regulate individuals to assure that the standard of living of the custodial parent and the child are not devastated, to the end that interstate commerce, in its broadest sense, is substantially impacted."⁽²³⁷⁾

In Katzenbach v. McClung,⁽²³⁸⁾ a restaurant refused to seat black patrons in its dining area.⁽²³⁹⁾ The Court, upholding the Civil Rights Act of 1964,⁽²⁴⁰⁾ reasoned that, on account of the restaurant's out-of-state purchases of the foods it served, its refusal to seat black patrons affected interstate commerce by curtailing the amount of food consumed and thus the amount of food purchased by the restaurant.⁽²⁴¹⁾ This rationale equally applies to the economic effects of failing to pay interstate child support.⁽²⁴²⁾ Without adequate child support payments, families are less able to purchase food and other consumable items that cross state borders.⁽²⁴³⁾ The activity of nonsupport is, therefore, "connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce."⁽²⁴⁴⁾

If the cumulative effect theory was employed,⁽²⁴⁵⁾ Congress would have authority under the Commerce Clause to regulate intrastate child support recovery based on the enormity of the aggregate effects on the national economy.⁽²⁴⁶⁾ Nevertheless, the CSRA does not attempt to regulate purely intrastate activities, but rather regulates interstate activities.⁽²⁴⁷⁾

c.  Interstate Nexus

The Lopez Court stated that 922(q)⁽²⁴⁸⁾ did not have a jurisdictional element that would ensure, through case-by-case analysis, that the activity in question affected interstate commerce.⁽²⁴⁹⁾ The CSRA, on the other hand, explicitly requires that the obligor reside in a different state than the child before the CSRA is enforced; thus providing the requisite nexus with interstate commerce.⁽²⁵⁰⁾ "Every case brought under the CSRA will[,] [therefore,] result in a change in the financial interests of residents of different states, assuring a `concrete tie to interstate commerce.'"⁽²⁵¹⁾ The CSRA is, therefore, sufficiently distinguished from 922(q),⁽²⁵²⁾ because interstate child support recovery is not a purely local activity.⁽²⁵³⁾ The obligor must not only be outside the jurisdiction and immediate control of the child's state of residence, he or she must also be obligated and in willful default of paying child support to another state.⁽²⁵⁴⁾

The Lopez Court opined that because 922(q) did not contain an interstate nexus, Congress had not clearly conveyed its purpose.⁽²⁵⁵⁾ If a statute is ambiguous, the Court must interpret the statute based on "whether Congress could regulate, without more, the `mere possession' of firearms."<sup>(256)</sup> Nevertheless, it "`will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative.'"⁽²⁵⁷⁾

Unlike 922(q), the CSRA explicitly includes an interstate jurisdictional element.⁽²⁵⁸⁾ Consequently, it is not necessary for the Court to interpret the statute based solely on the activity of child support recovery, without more, because the CSRA (demonstrated by its explicit language and legislative history) manifests the clear intention of Congress.⁽²⁵⁹⁾

d.  Legislative Findings

The lower courts have interpreted the Lopez decision as giving considerable weight to the lack of legislative findings in 922(q), which would have demonstrated that gun possession in a school zone substantially affected interstate commerce.⁽²⁶⁰⁾ Although the Court conceded that Congress was not normally required to make formal findings concerning the substantial burdens an activity has on interstate commerce,⁽²⁶¹⁾ it emphasized that it has long relied on such findings when determining the constitutionality of a federal statute.⁽²⁶²⁾ Even though the majority in Lopez did not explicitly state so, it is apparent that the legislative findings assist the Court in determining when Congress has either exceeded its Commerce Clause power or had a rational basis for enacting a specific regulation.⁽²⁶³⁾ The legislative findings of the CSRA explicitly state that the purpose of the Act is to "impose a criminal penalty for flight to avoid payment of arrearages in child support."⁽²⁶⁴⁾ It further states that the CSRA "addresses the problem of interstate enforcement of child support by taking the incentive out of moving interstate to avoid payment."⁽²⁶⁵⁾ The CSRA is, therefore, "designed to target interstate cases only."⁽²⁶⁶⁾ In addition, there have been numerous legislative findings from congressional hearings, testimony, reports and debates concerning the substantial impact that the failure to pay child support has on interstate commerce.⁽²⁶⁷⁾

e.  The Standard of Review

The Lopez Court reiterated that the rational relation formula is the standard of review to be employed when examining the constitutionality of a Commerce Clause based statute.⁽²⁶⁸⁾ The Court emphasized that Congress is not free to ignore the dual system of government created by the Constitution.⁽²⁶⁹⁾ Consequently, a rational basis must exist for its conclusion that an activity sufficiently affects interstate commerce.⁽²⁷⁰⁾ If the legislative determination is rationally based, "`the only remaining question for judicial inquiry is whether "the means chosen by Congress [are] reasonably adapted to the end permitted by the Constitution."'"⁽²⁷¹⁾

In light of the difficulties inherent in recovering deficient interstate child support payments⁽²⁷²⁾ and the substantial national burdens on the economy,⁽²⁷³⁾ Congress had a rational basis for concluding that deficient child support payments sufficiently affect interstate commerce.⁽²⁷⁴⁾ Furthermore, the means--placing criminal penalties on interstate failure to pay child support--and the ends--increasing the percentage of interstate child support recovered--are reasonably adapted.⁽²⁷⁵⁾ To ensure uniformity and consistency in Commerce Clause cases, the Supreme Court should find that the enactment of the CSRA is within the scope of Congress' Commerce Clause power, and that "a rational basis exist[s] for concluding that [the] regulated activity sufficiently affect[s] interstate commerce."⁽²⁷⁶⁾

2.  The Effect of Lopez on the CSRA

a.  United States v. Mussari

In United States v. Mussari,⁽²⁷⁷⁾ the Arizona district court was not persuaded that the statute, 922(q), at issue in Lopez was distinguishable from the CSRA.⁽²⁷⁸⁾ That court struck down the CSRA as an unconstitutional expansion of Congress' Commerce Clause power.⁽²⁷⁹⁾

The Mussari court, applying the Lopez standard to the CSRA, found that it did not fit into any of the three categories.⁽²⁸⁰⁾ The court conceded that the statute did contain an interstate nexus, but that nexus was insufficient to establish a substantial relation to interstate commerce.⁽²⁸¹⁾ The court stated that the legislative history of the CSRA illustrated that Congress had considered the necessity for an interstate nexus, but consideration alone was insufficient.⁽²⁸²⁾ The court reasoned that an interstate nexus must be established by tangible evidence that child support collection has a substantial effect on interstate commerce.⁽²⁸³⁾ Following this line of reasoning, the court asserted that "[t]here is no commercial intercourse involved in the collection of delinquent child support payments."⁽²⁸⁴⁾

The deprivation of necessities arising from the lack of child support income, caused by the inability of federal or state agencies to collect child support payments, creates the substantial effect--not the mechanical procedure of collecting those payments.⁽²⁸⁵⁾ Moreover, the determination of whether a particular activity substantially affects interstate commerce is an issue best left to the legislatures.⁽²⁸⁶⁾

The Mussari court further reasoned that "the statute [was] clearly not tailored to address only those parents who specifically fle[d] from a state in order to avoid paying child support."⁽²⁸⁷⁾ Under the rational basis standard it is not necessary, however, for a statute to affect only those persons the statute explicitly targets.⁽²⁸⁸⁾ The means must be reasonably related to the ends, not "clearly tailored."⁽²⁸⁹⁾ A court commonly strikes down a congressional statute not "clearly tailored" to the ends, under a strict scrutiny⁽²⁹⁰⁾ or intermediate scrutiny⁽²⁹¹⁾ standard--not under a rational basis standard.⁽²⁹²⁾

More importantly, "[g]iven the high degree of mobility which characterizes modern American society and the fact that the custodial parent may need, for reasons of economic opportunity, health or general personal well-being, to relocate to another state, it is reasonably foreseeable that the support obligation may become an interstate matter."⁽²⁹³⁾ Moreover, it would be illogical to assert that Congress, by enacting the CSRA, simultaneously prevented all custodial parents from relocating to any other state than the one in which they lived when the child support obligation was created.⁽²⁹⁴⁾

In addition, the Mussari court seemed to place considerable emphasis on the fact that the CSRA is a criminal statute.⁽²⁹⁵⁾ The court declared that the CSRA "is a criminal statute aimed at punishing parents delinquent in their child support payments."⁽²⁹⁶⁾ It is true that delinquent parents will be criminally penalized under the CSRA, but the objective of the CSRA is to deter recidivous delinquency and to increase child support recovery.⁽²⁹⁷⁾ The court went on to state that under the federal system the "`"States possess primary authority for defining and enforcing the criminal law."'"⁽²⁹⁸⁾ It is equally correct that the states have primary authority to regulate criminal behavior, however, this has never precluded the federal government from regulating criminal activity.⁽²⁹⁹⁾ For "[a]lthough, States usually are the primary enactors and enforcers of criminal law, they have not cornered the market."⁽³⁰⁰⁾

The Mussari court additionally maintained that current civil legislation removed the need for criminal legislation to redress activities when the civil statutes are working effectively.⁽³⁰¹⁾ This rationale fails on two counts.⁽³⁰²⁾ First, Congress is not required to implement either civil or criminal statutes.⁽³⁰³⁾ Second, it was precisely the ineffectiveness of these civil remedies that compelled Congress to enact the CSRA.⁽³⁰⁴⁾

The Mussari court also asserted that considering the amount of criminal state legislation in this area, and that forty-eight states have passed URESA,⁽³⁰⁵⁾ there is no need or space for a federal criminal statute.⁽³⁰⁶⁾ This statement is inconsistent with the legislative findings of the CSRA.⁽³⁰⁷⁾ According to the legislative history of the CSRA, the ability of states to enforce criminal law on an interstate level is seriously circumscribed.⁽³⁰⁸⁾ In addition, despite the adoption of URESA and UIFSA, interstate extradition and enforcement "remains a tedious, cumbersome and slow method of collection."⁽³⁰⁹⁾ Moreover, Congress may criminalize activities prohibited by the states without violating the Constitution.⁽³¹⁰⁾

b.  United States v. Hampshire

Unlike the Mussari court, the district court of Kansas, in United States v. Hampshire,⁽³¹¹⁾ distinguished 922(q) in Lopez from the CSRA.⁽³¹²⁾ The court determined that the CSRA explicitly required an interstate nexus upon the regulated activities.⁽³¹³⁾ The CSRA is, therefore, not applicable to only "domestic relations matters occurring entirely within a given state," but also to activities that involve interstate matters.⁽³¹⁴⁾

The court also addressed the concerns of the Lopez Court, that an unconstrained Commerce Clause would allow Congress to "`regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example.'"⁽³¹⁵⁾ The Hampshire court stressed that this concern cannot be construed to imply "that all federal legislation touching upon domestic relations is necessarily invalid."⁽³¹⁶⁾ The court, therefore, averred that because "Congress has determined in a nonarbitrary manner that the willful actions of private individuals have a substantial effect on interstate commerce, it may constitutionally proscribe such actions by legislation which includes an interstate nexus as an explicit element of the offense."⁽³¹⁷⁾ Under the Hampshire court's analysis, the CSRA is within the purview of Congress' Commerce Clause power.⁽³¹⁸⁾

B.  Tenth Amendment as a Possible Limitation on Congress' Commerce Clause Power

1.  Lopez and the Tenth Amendment

The principle issue addressed in Lopez was whether 922(q) was constitutionally permissible under the Commerce Clause.⁽³¹⁹⁾ The Court did not, therefore, specifically address whether the Tenth Amendment prohibited Congress from enacting 922(q).⁽³²⁰⁾

In a concurring opinion, however, Justice Kennedy emphasized the importance of affording individual states the autonomy to determine the best means to effectuate criminal law preventives.⁽³²¹⁾ Justice Kennedy asserted that under these "circumstance[s], the theory and utility of . . . federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear."⁽³²²⁾ If a state agency determines that criminal penalties are necessary to prevent guns on school property, "the reserved powers of the States are sufficient to enact those measures."⁽³²³⁾

The CSRA is distinguishable from 922(q) because it neither displaces state authority from initiating child support recovery policies⁽³²⁴⁾ nor does it "foreclose[] the States from experimenting and exercising their own judgment."⁽³²⁵⁾ The CSRA is implemented only when all possible state remedies have been exhausted,⁽³²⁶⁾ and against only the most egregious offenders;⁽³²⁷⁾ thus allowing the states to implement their procedures first.⁽³²⁸⁾

Even though the Lopez Court did not address the Tenth Amendment as it pertained to 922(q), the courts that have addressed the constitutionality of the CSRA have, nevertheless, examined the Tenth Amendment as a possible obstacle against its implementation.⁽³²⁹⁾

2.  When Tenth Amendment Trumps the Commerce Clause

a.  United States v. Mussari

In United States v. Mussari,⁽³³⁰⁾ the district court of Arizona held that because the CSRA was an unconstitutional expansion of Congress' Commerce Clause power, it infringed "upon those powers reserved for the States by the Tenth Amendment."⁽³³¹⁾ In other words, the Mussari court determined that because the CSRA was unconstitutional it was barred by the Tenth Amendment.⁽³³²⁾ It is true that the Tenth Amendment reserves certain powers to the states and "[t]he powers delegated by the . . . Constitution to the federal government are few and defined."⁽³³³⁾ "As long as [Congress] is acting within the powers granted it under the Constitution, [however,] Congress may impose its will on the States."⁽³³⁴⁾

b.  United States v. Hampshire

In United States v. Hampshire,⁽³³⁵⁾ the district court of Kansas, coming to the opposite conclusion, held that the CSRA was constitutionally permissible under the Commerce Clause and not restrained by the Tenth Amendment.⁽³³⁶⁾ The court concluded that "[t]he CSRA creates criminal sanctions for individuals who fail to comply with child support obligations; it makes no attempt to regulate the conduct of the states, as states. It is regulation of purely private conduct, and does not represent a violation of the Tenth Amendment."⁽³³⁷⁾

c.  Current Standard of The Tenth Amendment:

New York v. United States

In New York v. United States,⁽³³⁸⁾ the Court pronounced a three-tier standard to determine whether a federal statute is within Congress' enumerated powers under the Constitution or whether the power is reserved to the states.⁽³³⁹⁾

First, Congress has the congressional power to regulate commerce directly.⁽³⁴⁰⁾ In effect, Congress has the power to preempt contrary state regulations⁽³⁴¹⁾ as long as it explicitly states a clear and manifest intent to do so.⁽³⁴²⁾ Furthermore, Congress may also use incentives,⁽³⁴³⁾ which grant the states the discretion to implement a specific federal statute.⁽³⁴⁴⁾ Second, Congress cannot regulate state imposed regulations of interstate commerce.⁽³⁴⁵⁾ This would result in a coercive compulsion of federal regulations upon the states as states.⁽³⁴⁶⁾ Coercive federal mandates would be directly in opposition to "[t]he Framers explicit[] cho[ice] [for formulating] a Constitution that confers upon Congress the power to regulate individuals, not States."⁽³⁴⁷⁾ Third, with the implementation of any federal statute there must be sufficient political or electoral accountability.⁽³⁴⁸⁾ The federal government must, therefore, "`stand in need of no intermediate legislations [such as the states]. . . . The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals.'"⁽³⁴⁹⁾

d.  The New York Standard and the CSRA

The first standard evinced in New York was that Congress had the power to regulate commerce directly through preemption or incentives.⁽³⁵⁰⁾ Under the CSRA, Congress is not attempting to preempt state regulation in the areas of inter- or intrastate child support recovery.⁽³⁵¹⁾ Rather, the CSRA is an attempt by the federal government to establish a coalition between federal and state agencies, through formal mechanisms of cooperation.⁽³⁵²⁾ Similarly, the CSRA is not based on a series of incentive programs.⁽³⁵³⁾

The second standard established in New York is that Congress cannot regulate states as states.⁽³⁵⁴⁾ But Congress does have the authority to directly regulate private individuals.⁽³⁵⁵⁾ The CSRA does not directly or indirectly regulate state regulations of interstate commerce.⁽³⁵⁶⁾ Unlike the "take title" provision in New York, the CSRA does not coerce state implementation of federal objectives.⁽³⁵⁷⁾ Rather, the CSRA imposes regulations directly upon the defaulting child support obligor.⁽³⁵⁸⁾ Since the CSRA directly imposes regulations upon private individuals and not the states, it also endures the final standard in New York: accountability.⁽³⁵⁹⁾

Accountability requires that federal implementation of any statute must have sufficient political or electoral culpability.⁽³⁶⁰⁾ Thus, because the CSRA is a direct regulation upon private citizens through an entirely federal regulatory scheme, federal and state representatives are politically and electorally accountable to their constituents.⁽³⁶¹⁾ The CSRA, therefore, does not violate the Tenth Amendment.⁽³⁶²⁾

  Conclusion

The holding in United States v. Lopez can be construed as setting an outer boundary on Commerce Clause authority.⁽³⁶³⁾ As such, the Commerce Clause cannot be used to regulate entirely intrastate activity without a clear and manifest intent of Congress to do so and a showing that the activity substantially affects interstate commerce.⁽³⁶⁴⁾ In formulating the CSRA, Congress has explicitly established an interstate nexus and documented, through legislative history, that the failure to make child support payments does substantially affect interstate commerce.⁽³⁶⁵⁾ In addition, Congress' intent to regulate interstate child support collection was clear and manifest.⁽³⁶⁶⁾ The CSRA is, therefore, constitutional under the Commerce Clause.

Moreover, although the CSRA regulates an area that is directly related to the financial well-being of children (a domain which has traditionally been within the province of the states), the alarming increase in the poverty of American children, the inherent difficulties of interstate child support collection and the substantial effect on the national economy, have necessitated the need for expanded federal involvement in child support recovery.⁽³⁶⁷⁾ Congress did, therefore, have a rational basis for finding a significant connection between the failure to pay child support and interstate commerce.⁽³⁶⁸⁾

Furthermore, following the three-tier standard established in New York, the Tenth Amendment clearly does not prohibit the implementation of the CSRA.⁽³⁶⁹⁾ The Tenth Amendment pertains to federal statutes that coerce states to adhere to federal objectives, compel states directly to implement those objectives, and as such diminishes electoral accountability of state representatives.⁽³⁷⁰⁾ The CSRA does not fall within any of these proscribed standards.

The CSRA attempts to unify stated federal efforts to achieve the greatest possible results in child support recovery--it does not attempt to usurp any authority granted to the states pursuant to the constitution. The purpose of the CSRA is to compel parents to take responsibility for their children.⁽³⁷¹⁾ This is a responsibility that arises when a parent chooses to bear children, at which point the parental obligation is created. "By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents."⁽³⁷²⁾

Dawn L. Rudenko^*

1. Criminal Penalty for Flight to Avoid Payment of Arrearages in Child Support: Hearings on S. 1002 Before the Subcomm. on Juvenile Justice of the Comm. on the Judiciary United States Senate, 102d Cong. 3 (1992) [hereinafter S. 1002] (statement of Sen. Joseph R. Biden, Jr.) "[S]ixteen million children in America today are owed $18 billion in back child support payments. That's more than the federal government spends each year on Head Start, WIC, school nutrition, and the Chapter One Education Program--combined." Id. at 4.

2. See Janelle T. Calhoun, Comment, Interstate Child Support Enforcement System: Juggernaut of Bureaucracy, 46 Mercer L. Rev. 921, 924 (1995). The federal government spends approximately $12.7 billion and the states spend $10.5 billion annually to support children who receive public assistance. See id. at 923 (citing Parents Who Don't Pay, St. Louis Dispatch, July 23, 1994, at 14B).

3. See Report of the Interstate Commission on Child Support: Hearing Before the Subcomm. on Human Resources of the Comm. on Ways and Means, 102d Cong. 75 (1992) [hereinafter Report on Child Support].

4. See id.

5. See Margaret Campbell Haynes, Child Support and the Courts in the Year 2000, 17 Am. J. Trial Advoc. 693, 693 (1994). "Approximately seventy-five percent of custodial mothers in this country either lack child support orders or fail to receive full payment under such orders." Id. (footnoting Bureau of the Census, U.S. Dep't of Commerce, Series P-60, No. 173, Child Support and Alimony: 1989 (1991)) [hereinafter Child Support and Alimony]. In 1992, uncollected child support payments exceeded $27 billion dollars. See Welfare Reform Proposals, Including H.R. 4605, The Work and Responsibility Act of 1994 Comm. on Ways and Means and its Subcomm. on Human Resources of the House of Representatives, 103d Cong. 685 (1994) (testimony of Richard Hoffman, President of Child Support Enforcement) [hereinafter Testimony of Hoffman]. This $27 billion refers only to those cases in which the custodial parent has obtained a court order. See Child Support Enforcement, 1994: Hearings Before the U.S. Senate Subcomm. on Federal Services, Post Office, and Civil Service of the Senate Comm. on Governmental Affairs, 103d Cong. 46, 49 (1994) (testimony of Nancy Ebb, Senior Staff Attorney, Children's Defense Fund) [hereinafter Testimony of Ebb]. "The obligation to pay support generally begins with establishment of a support order . . . ."). Id. Not included in this amount are those cases in which the child has reached majority, see S. 1002, supra note 1, at 49, and where no court order has been issued, or paternity is pending. See Testimony of Ebb, supra, at 49; see also Testimony of Hoffman, supra, at 688 (noting that establishing paternity is only the first step in the child support collection system and that "600,000 plus cases . . . have no paternity established"). It is estimated that 45% of entitled children do not have child support orders. See Testimony of Ebb, supra, at 65.

6. See Child Support and Alimony, supra note 5, at 6; see also Testimony of Hoffman, supra note 5, at 688.

7. The AFDC is a federal and state cooperative program that provides welfare benefits to custodial parents with young children due to a parental desertion, death or disability. See 42 U.S.C. §§ 651-669 (1994) (originally enacted as Social Services Amendment of 1974, Pub. L. No. 93-647, 88 Stat. 2337 (1975)) [hereinafter Title IV-D]; see also 42 U.S.C. §§ 601-617 (1994).

8. See Wehunt v. Ledbetter, 875 F.2d 1558, 1565 (11th Cir. 1989) (citing Social Services Amendments of 1974, S. Rep. No. 93-1356, at 42 (1974), reprinted in 1974 U.S.C.C.A.N. 8133, 8145). An estimated "25 to 50 percent of families on welfare are there because they are not receiving child support." Peggy O'Crowley, Rally Targets Deadbeat Parents Protesters Call for Tougher Laws, The Record (Northern New Jersey), Oct. 15, 1995, at A3 (quoting Rep. Marge S. Roukema, R-Ridgewood, Sponsor of Federal Legislation To Revoke Licenses).

9. See Calhoun, supra note 2, at 923.

10. See ABA Presidential Working Group on the Unmet Legal Needs of Children and Their Families, America's Children at Risk: A National Agenda for Legal Action, 18, 19 (1993) [hereinafter Working Group]; see also Children's Defense Fund, Child Poverty in America 5 (1991).

11. National Commission on Children, Beyond Rhetoric: A New American Agenda for Children and Families 97 (1991) [hereinafter Beyond Rhetoric].

12. See Report on Child Support, supra note 3, at 72, 75.

13. See infra Part II.A.1. A joint effort by "the states and federal government is necessitated not only by the strain on the resources of the states' judicial and social service systems, but by federal recognition that the long term welfare and security of the nation depends on the development of healthy, productive citizens." Report on Child Support, supra note 3, at 75 (statement of Commissioners Robinson and Rothschild); see also infra Part II.A.1.a.

14. See 18 U.S.C. § 228 (1994); see also infra Part II.A.1.d.

15. See H.R. Rep. No. 102-771, at 6 (1992). Congress extracted this operative language from federal tax statutes, 26 U.S.C. §§ 7202, 7203 (1994), which make the willful failure to pay taxes a federal crime. See H.R. Rep. No. 102-771, at 6 (1992). Thus, the willful failure standard in the CSRA should be interpreted in the same manner that courts have interpreted the felony tax provisions. See id.

[T]he government must establish, beyond a reasonable doubt, that at the time payment was due the [child support obligor] possessed sufficient funds to enable him to meet his obligation or that the lack of sufficient funds on such date was created by (or was the result of) a voluntary and intentional act without justification in view of all of the financial circumstances of the [child support obligor].Id. (quoting United States v. Poll, 521 F.2d 329, 333 (9th Cir. 1975)).

16. See H.R. Rep. No. 102-771, at 4 (1992). Past due support obligation is "any amount 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." Id. Past due or non-support is defined as "a parent's failure, neglect or refusal without lawful excuse to provide for the support and maintenance of his or her child in necessitous circumstances." Black's Law Dictionary 1058 (6th ed. 1990).

17. See 18 U.S.C. § 228(a) (1994), which provides: "Whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b)." Subsection (b) states: "The punishment for an offense under this section is (1) in the case of first offense under this section, a fine under this title, imprisonment for not more than 6 months, or both; and (2) in any other case, a fine . . . , imprisonment for not more than 2 years, or both." Id. § 228(b).

18. See H.R. Rep. No. 102-771, at 5 (1992) (noting that non-custodial parents' "chances for successfully avoiding [child support] payments increase markedly when they cross state lines"); see also 140 Cong. Rec. S9430 (1994) (emphasizing that non-custodial parents "cannot walk away from [their] kids [and] cannot avoid child support by crossing State lines"); 138 Cong. Rec. H7324-25 (1992) (stating that the ability of states to enforce interstate child support orders is hindered "by a labyrinth of extradition laws and snarls of red tape"). Flight by the obligor is not, however, an explicit element within the statute. See supra note 17 and accompanying text.

19. See United States v. Lewis, 936 F. Supp. 1093 (D.R.I. 1996) (upholding CSRA as constitutional); United States v. Ganaposki, 930 F. Supp. 1076 (M.D. Pa. 1996); United States v. Nichols, 928 F. Supp. 302 (S.D.N.Y. 1996); United States v. Collins, 921 F. Supp. 1028 (W.D.N.Y. 1996); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla. 1996); United States v. Bongiorno, 1996 WL 208508 (D. Mass. 1996) (pending appeal to the United States Court of Appeals for the First Circuit); United States v. Parker, 911 F. Supp. 830 (E.D. Pa. 1995); United States v. Sage, 906 F. Supp. 84 (D. Conn. 1995), aff'd, 92 F.3d 101 (2d Cir. 1996); United States v. Bailey, 902 F. Supp. 727 (W.D. Tex. 1995); United States v. Hopper, 899 F. Supp. 389 (S.D. Ind. 1995). But see United States v. Mussari, 894 F. Supp. 1360 (D. Ariz. 1995) (striking down the CSRA as an unconstitutional exercise of Congress' Commerce Clause power), rev'd, 95 F.3d 787 (9th Cir. 1996); United States v. Schroeder, 894 F. Supp. 360 (D. Ariz. 1995) (companion case to Mussari), rev'd, 95 F.3d 787 (9th Cir. 1996); United States v. Murphy, 893 F. Supp. 614 (W.D. Va. 1995), vacated, 934 F. Supp. 736 (W.D. Va. 1996); United States v. Hampshire, 892 F. Supp. 1327 (D. Kan. 1995) (upholding the CSRA as constitutional under Congress' Commerce Clause power), aff'd, 95 F.3d 999 (10th Cir. 1996). There are approximately 150 additional cases pending nationwide. See Tim Bryant, Doctor's Verdict Demonstrates Child Support Push, Dowd Says, St. Louis Post-Dispatch, June 6, 1996, at 14A.

20. See U.S. Const. art. I, § 8, cl. 3. ("The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.").

21. See U.S. Const. amend. X. ("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.").

22. See John G. Schmidt, Jr., Note, The Tenth Amendment: A "New" Limitation on Congressional Commerce Power, 45 Rutgers L. Rev. 417, 420 n.30 (1993). The Framers, fearful of an imbalance between the federal branch and the states, delineated specific powers to each: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States . . . concern the lives, liberties, and properties of the people . . . ." The Federalist No. 45, at 328 (James Madison) (Benjamin F. Wright ed., 1966).

23. U.S. Const. art. I, § 8, cl. 3; see also infra Part II.C.

24. See infra Part II.C; see also 42 U.S.C. §§ 13701-14223 (1994) (creating over 100 new federal criminal provisions that would be federal criminal offenses); Perez v. United States, 402 U.S. 146, 156-57 (1971) (upholding criminal penalty imposed under the Consumer Credit Protection Act (CCPA) regulating interstate extortion credit transactions); Wickard v. Filburn, 317 U.S. 111, 124-29 (1942) (upholding Agricultural Adjustment Act, which set quotas on wheat production); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937) (upholding regulation of labor and management requirements under the National Labor Relations Act (NLRA)); Vincent A. Cirillo & Jay W. Eisenhofer, Reflections on the Congressional Commerce Power, 60 Temp. L. Q. 901, 903 (1987); Robert L. Stern, The Commerce Clause Revisited-The Federalization of Intrastate Crime, 15 Ariz. L. Rev. 271, 273-74 (1973) (upholding post-Perez cases "on ground[s] that Congress had the power to proscribe a class of criminal activity if it found that as a whole this activity substantially influenced the nation's economy. . . . These . . . developments in the federalization of intrastate crime . . . extend the commerce power beyond previous limits").

25. See Carter v. Carter Coal Co., 298 U.S. 238, 316 (1936) (holding that the Bituminous Coal Act of 1935 exceeded the authority of Congress under the Commerce Clause).

26. 115 S. Ct. 1624, 1626 (1995) (holding that the Gun Free School Zones Act, [hereinafter 922(q)], exceeded Congress' Commerce Clause authority). For an extensive analysis into the constitutionality of the Gun Free School Zones Act, see David S. Gehrig, Note, The Gun-Free School Zones Act: The Shoot Out Over Legislative Findings, the Commerce Clause, and Federalism, 22 Hastings Const. L.Q. 179 (1994).

27. See James M. Maloney, Note, Shooting for an Omnipotent Congress: The Constitutionality of Federal Regulation of Intrastate Firearms Possession, 62 Fordham L. Rev. 1795, 1797 (1994).

28. 18 U.S.C. § 922(q) (Supp. V 1993) (codified as amended in scattered sections of 18 U.S.C. & 42 U.S.C.).

29. See supra note 19. Compare Cheffer v. Reno, 55 F.3d 1517, 1521-22 (11th Cir. 1995) (holding Freedom of Access to Clinic Entrances Act of 1994 constitutional) with United States v. Wilson, 880 F. Supp. 621, 626, 634-36 (E.D. Wis. 1995) (holding Freedom of Access to Clinics Entrances Act unconstitutional), rev'd, 73 F.3d 675 (7th Cir. 1995), and cert. denied, 117 S. Ct. 47 (1996). But see United States v. Bishop, 66 F.3d 569 (3d Cir. 1995) (holding Federal Carjacking Act constitutional), reh'g denied, 73 F.3d 23 (3d Cir. 1995), and cert. denied, 116 S. Ct. 681 (1995), and cert. denied, 116 S. Ct. 750 (1996).

30. See 18 U.S.C. § 228 (1994); 42 U.S.C. §§ 3793, 3796cc, 3797 (1994).

31. See supra note 19. Three of these twelve decisions have recently been addressed by federal circuit courts. See United States v. Mussari, 95 F.3d 787 (9th Cir. 1996) (reversing the Mussari and Schroeder decisions which struck down the CSRA as unconstitutional); United States v. Sage, 92 F.3d 101 (2d Cir. 1996) (affirming lower court's decision upholding the CSRA as constitutional); United States v. Hampshire, 892 F. Supp. 1327 (D. Kan. 1995) (upholding the CSRA as constitutional, aff'd, 95 F.3d 999 (10th Cir. 1996)).

32. See infra Part III.

33. See Lopez, 115 S. Ct. at 1626 (holding that 922(q) was an unconstitutional expansion of Congress' authority under the Commerce Clause).

34. See infra notes 38-98 and accompanying text.

35. See infra notes 99-192 and accompanying text.

36. See infra notes 193-362 and accompanying text.

37. See infra notes 363-72 and accompanying text.

38. 1 William Blackstone, Commentaries *447.

39. See id.

40. See Testimony of Hoffman, supra note 5, at 688. Over 16 million children in the United States "are living without their fathers in the home, and nearly 50 percent of these children live in poverty." Id.; see also testimony of Ebb, supra note 5, at 46 (estimating that the number of children living in single-parent families are actually 17.2 million--half of which live in poverty); 138 Cong. Rec. H7325 ("[S]kipping out on child support is one of the easiest crimes to get away with in America today."); Beyond Rhetoric, supra note 11, at 17-27. To emphasize how considerably American children are being overlooked consider that "`while the default rate for car loans is 3 percent, the default rate for child support is nearly 50 percent.'" Eric Pianin, GAO Calls HHS's Child Support Enforcement Office Ineffective, Wash. Post, July 21, 1994, at A29 (quoting Sen. David Pryor (D-Ark.), Chairman of the Subcomm. on Federal Services, Post Office and Civil Service).

41. See Working Group, supra note 10, at 19.

42. See id. (citing William A. Galston, Causes of Declining Well-Being Among U.S. Children, Aspen Inst. Q. 52, 55 (Winter 1993)). In the last two decades the percentage of children born out of wedlock has quintupled. See Galston, supra, at 66; see also Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States 69 (112th ed. 1992). In addition, the divorce rate during this time has followed closely behind, leaving one-half to three-quarters of all children born today living in a single-parent household. See Working Group, supra note 10, at 19; see also Beyond Rhetoric, supra note 11, at 17-19. Partly due to these multiplying rates, "increasing numbers of children are not receiving financial support to which they are entitled." U.S. Comm'n on Interstate Child Support, "Supporting Our Children: A Blueprint For Reform" 2 (1992) [hereinafter Blueprint For Reform]. Furthermore, "[a]pproximately 43 percent of mother-only families are poor, compared to only about 7 percent of two-parent families." Beyond Rhetoric, supra note 11, at 24 (footnote omitted).

43. See Testimony of Ebb, supra note 5, at 46.

44. Id.

45. See Report on Child Support, supra note 3, at 40 ("Sixty percent of mothers in intrastate cases report that they receive regular support payments but only 43% of mothers in interstate cases receive such payments. In fact, 34% of custodial mothers in interstate cases report that they never receive a dime."). Moreover, it is estimated that approximately $14 billion in child support is owed as a result of interstate flight alone. 140 Cong. Rec. S9430 (1994).

46. H.R. Rep. No. 102-771, at 6 (1992); see also U.S. Gen. Accounting Office, Interstate Child Support-Wage Withholding Not Fulfilling Expectations 30-32, GAO/HRO-92-65BR (1992) [hereinafter GAO]; Eleanor H. Landstreet, State and Federal Criminal Nonsupport Prosecution, 13 No. 7 Fair$hare 16, 17 (July 1993).

47. Report on Child Support, supra note 3, at 40 (statement of Margaret Campbell Haynes, Chair and Harry Tindall, Vice Chair, of United States Commission on Interstate Child Support); see also Blueprint for Reform, supra note 42, at 3.

48. See H.R. Rep. No. 102-771, at 6 (1992).

49. See Blueprint For Reform, supra note 42, at 3 ("Interstate child support enforcement takes too long, costs too much, and too often, fails to yield enduring, positive results.").

50. See Report on Child Support, supra note 3, at 75.

51. See Charlotte L. Allen, Federalization of Child Support: Twenty Years and Counting, 73 Mich. B. J. 660, 660-61 (1994); see also infra Part II.A.1.a.

52. See Calhoun, supra note 2, at 930.

53. See Testimony of Hoffman, supra note 5, at 685 ("Over the last 14 years of reported statistics, we have seen an increase of less than two percent in the percentage of paying child support cases. In the most recent year of reported statistics, 1992, the number actually decreased, from 19.3 to 18.7 percent." (emphasis added)).

54. 9B U.L.A. 91 (Supp. 1996).

55. See Calhoun, supra note 2, at 927.

56. Stephen J. Belay, The Interstate Family: Interstate Enforcement of Child Support Orders from URESA to UIFSA and Beyond, 2-SPG Ky. Children's Rts. J. 17, 18 (1992). URESA creates a two-forum system consisting of an initiating state and a responding state. See id. An "initiating state" is the state where the custodial parent resides. Id. In the initiating state the custodial parent prepares a petition requesting child support enforcement. See id. The petition is then forwarded to the "responding state" to enforce the child support recovery. Id. The responding state is where the child support obligor resides. See id.

57. See Paula Roberts, The Case for Fundamental Child Support Reform, 13 No. 7 Fair$hare 8, 8 (1993).

58. See Social Services Amendment of 1974, Pub. L. No. 93-647, 88 Stat. 2337 (1975) (codified as amended at 42 U.S.C. §§ 651-669 (1994)).

59. See 42 U.S.C. § 654 (1994); see also supra note 7 and accompanying text.

60. See Roberts, supra note 57, at 8. This was particularly evident in interstate cases--caused significantly by the increased mobility of the population. See id.

61. See, e.g., 42 U.S.C. § 666 (a)(1)-(8) (1994).

62. See id. Other additional state remedies include civil and criminal contempt of court; security bonds; adoption of the Uniform Enforcement of Foreign Judgments Act, 9A U.L.A. 287 (Supp. 1996), in order to collect child support from parents who have moved across state lines; credit bureau reporting; and criminal prosecution. See 42 U.S.C. §§ 652-654 (1994); Haynes, supra note 5, at 694; Calhoun, supra note 2, at 933-42.

63. See Roberts, supra note 57, at 8. The Federal Parent Locate System is a federal system used to locate non-custodial parents. See 42 U.S.C. § 653 (1994).

64. Allen, supra note 51, at 660. 42 U.S.C. § 652(b) (1994) authorizes the IRS to use its collection resources in particularly difficult cases; see also 42 U.S.C. § 654 (1994), which authorizes the IRS to intercept federal tax returns to pay off child support arrears.

65. See Harry B. O'Donnell, IV, Title I of The Family Support Act of 1988--The Quest For Effective National Child Support Enforcement Continues, 29 J. Fam. L. 149, 153-55 (1990-91); see also GAO, supra note 46, at 44-46 ("The range of time respondents say it takes other offices to obtain a withholding order from them is 4 to 99 weeks . . . ."). The report also notes that "the duration of withholding is 6 months or less in 40 percent of welfare cases and 28 percent of non-welfare cases." Id. at 52-53.

66. 9 U.L.A. pt. 1, at 255 (Supp. 1996).

67. See Rhonda McMillion, Congress Seeks Stronger Interstate Child Support System, 79 A.B.A. J. 107, 107 (Aug. 1993).

68. Id.; see also Unif. Interstate Family Support Act, 9 U.L.A. pt. 1, at 255 (Supp. 1996). The Act provides for an enhanced use of state long-arm statutes that allow cases to be heard in the child's state of residence; enhanced direct interstate wage withholding provisions; delineation between civil and criminal proceedings; and a "one-order" provision, which prioritizes between states as to the establishment and modification of a child support order. See Unif. Interstate Family Support Act, 9 U.L.A. pt. 1, at 255 (Supp. 1996). The one controlling order provision gives exclusive jurisdiction to modify an order by the initiating state, unless all parties to the case no longer reside in that state, or the parties consent in writing to proceed in a different jurisdiction. See id.

69. See Unif. Interstate Family Support Act, 9 U.L.A. pt. 1, at 255 (Supp. 1996) (noting that as of January 1, 1996, the Act has been adopted in Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Virginia, Washington, Wisconsin, and Wyoming).

70. See Report on Child Support, supra note 3, at 40. "[T]he current interstate child support system is plagued by a lack of uniform laws and procedures; inadequate resources; insufficient training of caseworkers, attorneys and judges; multiple, often conflicting support orders involving the same parties; and a lack of cooperation and communication among states." Id. A far too typical example of the problems state agencies face when attempting to enforce interstate child support orders is demonstrated in Collins v. Collins, 495 N.W. 2d 293 (N.D. 1993). In Collins, the non-custodial parent opposed a request from Nevada to initiate income withholding to enforce a child support judgment. See id. at 294-95. The trial court denied Nevada's request. See id. at 295. The Supreme Court of North Dakota held that the trial court had exceeded its power by making modifications and denying Nevada's requests. See id. at 294. During this appeal the non-custodial parent's attorney argued that "`the entire issue appear[ed] to be moot.'" Id. at 296. Because the non-custodial parent "`ha[d] moved on and . . . [was] no longer in North Dakota.'" Id. At this point the attorney was unable to locate his client. See id. Ironically, the court cited the CSRA stating that "[r]ecent Congressional action may deter the frequency of this kind of evasion." Id. at 296 n.6. For further examples of this form of evasive behavior see S.1002, supra note 1, at 107-08.

71. See Testimony of Hoffman, supra note 5, at 686; see also 45 C.F.R. §§ 301-303 (1996).

72. See Allen, supra note 51, at 660, 662-63. "Uniformity in procedures, terms, and forms has long been believed to be essential to effective communication and efficiency in the interstate child support program." GAO, supra note 46, at 31. Despite this there is a total of 54 different child support enforcement systems, counting the states, territories, and the District of Columbia. See Roberts, supra note 57, at 8.

73. See Haynes, supra note 5, at 695. A full-time child support collection employee has approximately one-thousand cases or more. See GAO, supra note 46, at 54. This equates to approximately eight minutes a month per case. See Child Support Enforcement, 1994: Hearings Before the U.S. Senate Subcomm. on Federal Services, Post Office, and Civil Service of the Senate Comm. on Governmental Affairs, 103d Cong. 30 (1994) (testimony of Pat Addison, Program Specialist, Virginia Division of Child Support Enforcement). Support was collected in only 19.3% of IV-D cases in 1990. See Haynes, supra note 5, at 695 (citing U.S. Dep't of Health & Human Services, Child Support Enforcement Sixteenth Annual Report To Congress For Period Ending Sept. 30, 1991, 7 (1992)). And the government case load in 1992 was 15.2 million cases, up from seven million in 1983. See Testimony of Ebb, supra note 5, at 47; see also 140 Cong. Rec. S9430 (1994) (stating that from 1983 to 1992, the non-welfare caseload quadrupled from 1.7 million to 6.5 million).

74. See Roberts, supra note 57, at 8-9. In 1978, 43% of custodial parents did not have a support order, compared with 42% in 1989. See id. Of the custodial parents who had a court order, 26% received no payments, which is a decrease of two percent from 1978. See id. Forty-nine percent of custodial parents received the full amount of child support ordered in 1978, whereas 48% received the amount in 1989. See id.

75. See Testimony of Hoffman, supra note 5, at 685.

76. See Testimony of Ebb, supra note 5, at 48 ("Average expenditures per case remained virtually unchanged from 1983 to 1992, inching up from a national average of $130 per case in 1983 (in 1992 dollars) to $132 per case in 1992.").

77. See Calhoun, supra note 2, at 940-41.

78. Testimony of Hoffman, supra note 5, at 685.

79. Calhoun, supra note 2, at 932. Moreover, even though the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, and the Full Faith and Credit for Child Support Orders Act of 1994, Pub. L. No. 103-383, § 3(a), 108 Stat. 4063, 4064-66 (1994) (codified at 28 U.S.C. § 1738B (1994)), mandate that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State," custodial parents still face overwhelming odds when attempting to have another state enforce their child support orders. See Roberts, supra note 57, at 8-9.

80. See, e.g., Alaska Stat. § 11.51.120 (Michie 1989 & Supp. 1995); Ariz. Rev. Stat. Ann. § 25-511 (West Supp. 1996); Cal. Penal Code § 270 (West 1988 & Supp. 1996); Ga. Code Ann. § 19-10-1 (1991 & Supp. 1996); Mass. Gen. Laws ch. 273, § 1 (1990 & Supp. 1996); Mo. Ann. Stat. § 568.040 (West 1979 & Supp. 1996); Neb. Rev. Stat. § 28.706 (1995); Nev. Rev. Stat. Ann. § 201.020 (Michie 1992 & Supp. 1995); see also Marian F. Dobbs, Criminal Penalties For Failure To Support, 14 No. 7 Fair$hare 5 (1994).

81. See infra notes 82-84 and accompanying text.

82. See Dobbs, supra note 80, at 5-6.

83. See Landstreet, supra note 46, at 16 ("Sometimes the local child support agency requires months to process a case, especially if the agency is backlogged. The local prosecutor can provide quicker enforcement.").

84. See id. A multitude of non-custodial parents believe they can evade their child support obligations by relocating to another state, "since civil arrest warrants are not enforceable across state lines." Id.

85. See infra notes 86-92 and accompanying text.

86. See Dobbs, supra note 80, at 5.

87. See id. These conditions include whether the individual charged is a recidivist parent; the amount of support in default, the length of time the individual has been in default, whether the parent resides in the state, and whether a court order exists. See id.

88. See Landstreet, supra note 46, at 16 ("Law enforcement officials' tendency to view criminal matters, especially felonies, more seriously than civil matters or misdemeanors may result in more aggressive enforcement.").

89. See id.

90. See id.

91. See GAO, supra note 46, at 30-32; see also supra notes 40-44 and accompanying text.

92. See 18 U.S.C. § 228 (1994); see also S. 1002, supra, note 1, at 4-5; H.R. Rep. No. 102-771, at 4-6 (1992); 138 Cong. Rec. H7324-25 (1992).

93. See 18 U.S.C. § 228(a) (1994). The issue "is not an issue of [non-custodial parents] being unable to pay. This is an issue of [non-custodial parents] who are unwilling to pay." S.1002, supra note 1, at 4 (emphasis added).

94. See 18 U.S.C. § 228(d)(1)(b) (1994). "The federal Office of Child Support Enforcement has estimated that at least 500,000 cases qualify for prosecution under such a standard." Haynes, supra note 5, at 707 (emphasis added).

95. See Deadbeat Dad Enforcement: DOJ On Tightrope, The Dep't of Just. Alert, Jan. 2-16, 1995, at 2-3 [hereinafter Tightrope] (on file with New England Law Review). "Attorney General Janet Reno announced [a] three-point enforcement program which called for more aggressive investigation and prosecution, an effective partnership with state child support enforcement agencies and comprehensive training and support for prosecutors to target the most egregious violators." Id. at 2.

96. See id. at 3.

97. See id. at 2-3. Under the CSRA an egregious violation consists of an amount in arrears exceeding $5000 or a default time in excess of one year. See 18 U.S.C. § 228 (d)(1)(b) (1994).

98. See Tightrope, supra note 95, at 2-3.

99. 115 S. Ct. 1624 (1995).

100. See id. at 1626. See 18 U.S.C. § 922 (q)(1)(A) (1994) which provides: "It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."

101. See 18 U.S.C. § 922(q) (1994). Section 921(a)(25) defines a school zone as: "(A) in, or on the grounds of, a public, parochial or private school; or (B) within a distance of 1,000 feet from the grounds of a public, parochial or private school." Id. § 921(a)(25). Alfonso Lopez, Jr., was a 12th-grade student at Edison High School in San Antonio, Texas, when he brought a .38 caliber handgun and five bullets to school. See Lopez, 115 S. Ct. at 1626.

102. Lopez, 115 S. Ct. at 1629.

103. Id. at 1629-30 (citations omitted); see also infra Part III.A.

104. See supra note 19 and accompanying text; see also Jan Crawford Greenberg, Lopez Case Ignites Debate on Congress' Law-Passing Limits, Chi. Trib., Jan. 4, 1996, at 3.

105. 892 F. Supp. 1327 (D. Kan. 1995), aff'd, 95 F.3d 999 (10th Cir. 1996).

106. See id. at 1329.

107. See id. at 1329-30; see also United States v. Ganaposki, 930 F. Supp. 1076, 1083 (M.D. Pa. 1996); United States v. Kegel, 916 F. Supp. 1233, 1238-39 (M.D. Fla. 1996); United States v. Sage, 906 F. Supp. 84, 89-90 (D. Conn. 1995), aff'd, 92 F.3d 101 (2d Cir. 1996). See generally Wickard v. Filburn, 317 U.S. 111 (1942) (upholding Agriculture Adjustment Act of 1941 based upon the aggregate or cumulative effect on interstate commerce). See also infra notes 146-50 and accompanying text for a more detailed discussion of the cumulative effect theory.

108. See Hampshire, 892 F. Supp. at 1330. "The CSRA creates criminal sanctions for individuals who fail to comply with child support obligations; it makes no attempt to regulate the conduct of the states, as states." Id.; accord Sage, 906 F. Supp. at 92-93; United States v. Hopper, 899 F. Supp. 389, 393 (S.D. Ind. 1995); see also infra Part III.B.2.a.

109. 894 F. Supp. 1360 (D. Ariz. 1995), rev'd, 95 F.3d 787 (9th Cir. 1996). Although the Ninth Circuit reversed the Mussari decision, the arguments established in the Mussari opinion reflect the primary counter-positions against the CSRA. See generally id. (striking down the CSRA as an infringement of congressional power under both the Commerce Clause and the Tenth Amendment). This Note will, therefore, use the Mussari decision as a model of the opinions opposing the CSRA.

110. See id. at 1361, 1364. Allen Mussari was indicted under the CSRA for failing to pay approximately $40,385 in child support arrearages. See id. at 1361. At the time of the indictment Mussari lived in Illinois and his children lived in Arizona. See id.

111. See id. at 1367; see also United States v. Bailey, 902 F. Supp. 727, 728-29 (W.D. Tex. 1995) (discussing the potential conflicts between the implementation of the CSRA and traditional notions of federalism and comity).

112. See Mussari, 894 F. Supp. at 1364-65.

113. See id. at 1367; see also United States v. Parker, 911 F. Supp. 830, 843 (E.D. Pa. 1995) (holding that the CSRA is inconsistent with the Tenth Amendment).

114. See United States v. Lewis, 936 F. Supp. 1093 (D.R.I. 1996); United States v. Ganaposki, 930 F. Supp. 1076 (M.D. Pa. 1996); United States v. Nichols, 928 F. Supp. 302 (S.D.N.Y. 1996); United States v. Collins, 921 F. Supp. 1028 (W.D.N.Y. 1996); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla. 1996); United States v. Sage, 906 F. Supp. 84 (D. Conn. 1995), aff'd, 92 F.3d 101 (2d Cir. 1996); United States v. Hopper, 899 F. Supp. 389 (S.D. Ind. 1995); United States v. Murphy, 893 F. Supp. 614, 617 (W.D. Va. 1995), vacated, 934 F. Supp. 736 (W.D. Va. 1996) (vacating conviction for lack of proper venue); see also Woman Fears Ruling Threatens Crackdown on Deadbeat Parents, Richmond Times-Dispatch, Aug. 7, 1996, at B4 (commenting on the first CSRA decision based on venue). The Ganaposki decision has created a Third Circuit intra-district split. Compare Ganaposki, 930 F. Supp. at 1083 (holding that the CSRA does have a substantial effect on interstate commerce and is constitutional under the Commerce Clause) with Parker, 911 F. Supp. at 843 (stating that Congress "had no rational basis to conclude that the willful failure to pay past due child support . . . substantially affected interstate commerce").

115. See Parker, 911 F. Supp. at 834-35; United States v. Bailey, 902 F. Supp. 727 (W.D. Tex. 1995). These cases have brought the constitutionality of the CSRA into question under both the Commerce Clause and the Tenth Amendment. See Parker, 911 F. Supp. at 834-35; Bailey, 902 F. Supp. at 730.

116. See Mussari, 894 F. Supp. 1360 (D. Ariz. 1995); United States v. Schroeder, 894 F. Supp. 360 (D. Ariz. 1995) (companion case to Mussari).

117. See United States v. Mussari, 95 F.3d 787 (9th Cir. 1996), rev'g 894 F. Supp. 1360 (D. Ariz. 1995).

118. Id. at 790.

119. See id.

120. Id.

121. See id. at 791.

122. 92 F.3d 101 (2d Cir. 1996), aff'g 906 F. Supp. 4 (D. Conn. 1995).

123. See id. at 108.

124. Id. at 105.

125. See id.

126. Id. (quoting United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 552 (1944)).

127. See id. at 107.

128. See supra notes 116-27 and accompanying text.

129. 95 F.3d 999 (10th Cir. 1996), aff'd, 892 F. Supp. 1327 (D. Kan. 1995).

130. See id. at 1006.

131. Id. at 1004 (quoting H.R. Rep. No. 102-771, at 5-6 (1992)).

132. U.S. Const. art. I, § 8, cl. 3.

133. 22 U.S. (9 Wheat.) 1, 23 (1824) (holding that if an intrastate activity affects interstate commerce, Congress has the power to regulate that activity).

134. Id. at 9.

135. Id. at 8.

136. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548-50 (1935) (holding the Live Poultry Code, regulating minimum wage and hours of poultry workers in New York, unconstitutional because states were better able to handle domestic problems arising from intrastate labor conditions); Hammer v. Dagenhart, 247 U.S. 251, 276-77 (1918) (holding that the Child Labor Act prohibited the interstate transportation of goods produced in factories that employed children under age fourteen, or employed fourteen to sixteen year olds for more than eight hours per day, unconstitutional because the regulation of hours of child labor was purely local in nature), overruled by United States v. Darby, 312 U.S. 100 (1941); United States v. E.C. Knight Co., 156 U.S. 1, 17 (1895) (holding that the Sherman Antitrust Act could not be applied to sugar refineries because of their local nature). But see Houston & Tex. Ry. v. United States, 234 U.S. 343, 353-54 (1914) (permitting Interstate Commerce Commission rating system on an intrastate route in Texas); Champion v. Ames, 188 U.S. 321, 354, 363-64 (1903) (holding the Federal Lottery Act, prohibiting interstate transportation of lottery tickets, constitutional).

137. See Alan N. Greenspan, Note, The Constitutional Exercise of the Federal Police Power: A Functional Approach to Federalism, 41 Vand. L. Rev. 1019, 1028 (1988).

138. See Cirillo & Eisenhofer, supra note 24, at 912 (citing Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 Wash. L. Rev. 723, 728-31 (1984); Stern, The Commerce Clause and The National Economy, 1933-1946, 59 Harv. L. Rev. 645, 653, 662, 681-82 (1946) (discussing the Roosevelt Administration and the Court-Packing Plan)).

139. See infra notes 140-63 and accompanying text.

140. 301 U.S. 1, 49 (1937) (upholding the National Labor Relations Act).

141. See id. at 36-38; see also United States v. Lopez, 115 S. Ct. 1624, 1628 (1995) (citing Jones & Laughlin Steel Corp., 301 U.S. at 36-38 as authority for abandoning the distinction between the "direct" and "indirect" effects on interstate commerce).

142. Jones & Laughlin Steel Corp., 301 U.S. at 37.

143. 312 U.S. 100, 125-26 (1941) (upholding the Fair Labor Standards Act).

144. Id. at 124.

145. See id.

146. 317 U.S. 111, 129 (1942) (upholding the Agricultural Adjustment Act, which imposed quotas on wheat production, even as to individual home consumption).

147. Id. at 124 (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)).

148. Id. at 125.

149. See id. at 127-28.

150. See id. at 124-28; see also Perez v. United States, 402 U.S. 146, 154 (1971) (noting that although an activity is purely intrastate, congress may nevertheless determine it affects interstate commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (stating that Congress' power "includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination"); Katzenbach v. McClung, 379 U.S. 294, 302 (1964) (stating that Congress' Commerce Clause power "extends to activities . . . which directly or indirectly burden or obstruct interstate commerce"); Polish Alliance v. Labor Bd., 322 U.S. 643, 648 (1944) ("[R]epresentative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce.").

151. See Katzenbach, 379 U.S. at 296-97; Heart of Atlanta Motel, Inc., 379 U.S. at 252-53.

152. 379 U.S. 241, 252 (1964) (upholding the Civil Rights Act of 1964 by prohibiting motel owner from turning black patrons away on the basis of race). The Civil Rights Act of 1964 prohibits discrimination based on race for "goods, services, facilities, . . . and accommodations of any place of public accommodation." 42 U.S.C. § 2000a(a) (1994).

153. See Heart of Atlanta Motel, Inc., 379 U.S. at 258-59.

154. See id. The rational basis theory was reiterated in Katzenbach, wherein the Court held, "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Katzenbach, 379 U.S. at 303-04.

155. Heart of Atlanta Motel, Inc., 379 U.S. at 258 (alteration in original) (quoting United States v. Women's Sportswear Mfrs. Ass'n, 336 U.S. 460, 464 (1949)).

156. 402 U.S. 146, 156-57 (1971) (upholding the Consumer Credit Protection Act, 18 U.S.C. §§ 891-896 (Supp. V 1964), which created a criminal penalty for purely intrastate extortionate credit transactions, based on loan sharking, without requiring Congress to demonstrate an interstate nexus).

157. Perez, 402 U.S. at 156 (alteration in original) (footnote omitted) (quoting 18 U.S.C. § 892 (Supp. V 1964)).

158. Id. at 154 (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)); see also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276-77 (1981) (emphasizing that "when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational").

159. 115 S. Ct. 1624 (1995).

160. Id. at 1629; see also Perez, 402 U.S. at 150 ("The Commerce Clause reaches, in the main, three categories of problems.").

161. Lopez, 115 S. Ct. at 1629.

162. Id.

163. Id. at 1629-30 (citation omitted). It has been contended that the Court may be attempting to delineate between commercial and noncommercial activities, much in the same way pre-Jones & Laughlin Steel Corp. decisions distinguished between direct and indirect interstate commerce. See id. at 1633. The Court did not state, however, that it was curtailing Congress' current authority--merely demarcating the outer-boundaries of the same. See id. at 1634. The Court stated that the expansive language of the precedence "has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated." Id. at 1634 (emphasis added).

164. U.S. Const. amend. X.

165. See supra Part II.C; see also infra notes 167-92 and accompanying text.

166. See infra notes 167-92 and accompanying text.

167. 312 U.S. 100 (1941).

168. Id. at 124.

169. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

170. See id. at 852 (striking down an amendment to the Fair Labor Standards Act (FLSA), the Court held that application of the FLSA to state employees would unjustifiably interfere with the states' ability to structure "integral governmental functions").

171. See id. at 845. The Court outlined a three-prong test to determine the invalidity of a congressional statute that infringed upon state rights. See id. First, there must be a showing that the statute regulates "States as States." Id. Second, the statute must address activities that are categorically attributed to state sovereignty. See id. Third, it must be evident that state compliance with the statute would directly vitiate a state's ability to "structure integral operations in areas of traditional governmental functions." Id. at 852.

172. 469 U.S. 528 (1985).

173. See id. at 531 (holding that the test in Usery was inconsistent with federalism and had no constitutional basis).

174. See id. at 555-57.

175. See id. at 550-51.

176. See id. at 556.

177. 505 U.S. 144 (1992).

178. See infra Part III.B.1.c.; see also H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va. L. Rev. 633 (1933) (discussing the New York decision as it relates to the principles of federalism).

179. 42 U.S.C. §§ 2021b-2021j (1988). The Act prescribed that "[e]ach State shall be responsible for providing, either by itself or in cooperation with other States, for the disposal of . . . low level radioactive waste generated within the State." Id. § 2021c(a)(1)(A).

180. See New York, 505 U.S. at 152-54.

181. See id. at 152. The monetary incentives, provided financial rewards to states that complied with the Act. See 42 U.S.C. §§ 2021e(d)(2)(A), (d)(2)(B)(i)-(ii), (e)(1)(A)-(C) (1988).

182. See New York, 505 U.S. at 153. Noncomplying states were required to pay surcharges and under proscribed circumstances denied access to disposal sites in other states. See 42 U.S.C. § 2021e(e)(1)-(2).

183. See New York, 505 U.S. at 153-54. States that were unable to provide for waste disposal by 1996, were required to "take title" to the waste and assume liability for any damages related to the generated waste due to the failure of the state to provide adequate disposal. See 42 U.S.C. § 2021e(d)(2)(C) (1988).

184. See New York, 505 U.S. at 172-74.

185. See id. at 174-77.

186. See id. at 176-77. Thus, the decision of complying to the statute or accepting liability and responsibility of the waste was "no choice at all." Id.

187. See id. at 174-75.

188. Id. at 176 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981)).

189. Id. at 169.

190. See supra notes 169-71 and accompanying text. The Court, however, distinguished New York from both Usery and Garcia, noting that those cases involved both individuals and state governments, whereas here, the statute applied only to the states. See New York, 505 U.S. at 160.

191. New York, 505 U.S. at 166.

192. Id. at 157; see also supra note 19 and accompanying text.

193. See United States v. Lopez, 115 S. Ct. 1624, 1629-30 (1995). The Lopez Court has not created a new Commerce Clause standard, rather, the Court has identified three broad categories which were promulgated in prior Supreme Court decisions. See infra notes 194-206 and accompanying text.

194. See id. at 1629.

195. Cammetti v. United States, 242 U.S. 470, 492 (1917) (quoting Hoke v. United States, 227 U.S. 308, 323 (1913)). An example of "interstate commerce channels" is the transportation of women across state lines for immoral purposes. Hoke, 227 U.S. at 308.

196. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964) ("`[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.'" (quoting Cammetti, 242 U.S. at 491)).

197. See United States v. Nichols, 928 F. Supp. 302, 314 (S.D.N.Y. 1996) (stating that the CSRA "regulate[s] . . . the payment of a debt from one state and the satisfaction of that debt in another"); United States v. Collins, 921 F. Supp. 1028, 1035 (W.D.N.Y. 1996) (stating that "it is irrelevant whether it is the movement across state lines or residence of the parent, who has the obligation to pay support, or the child . . . which causes the performance of the obligation to acquire an interstate character"); United States v. Kegel, 916 F. Supp. 1233, 1237 (M.D. Fla. 1996) (noting that "[e]ven the lawful use of interstate commerce may nonetheless result in injurious or immoral results"). But see United States v. Parker, 911 F. Supp. 830, 842-43 (E.D. Pa. 1995) (stating that the CSRA "does not regulate the shipping of goods or the movement of persons in interstate commerce"); United States v. Bailey, 902 F. Supp. 727, 728 (W.D. Tex. 1995) (holding that the CSRA does not fall within any of the three categories identified in Lopez); United States v. Mussari, 894 F. Supp. 1360, 1363 (D. Ariz. 1995) (holding that "criminalizing the failure to pay child support would not qualify as the regulation of the use of the channels of interstate commerce"), rev'd, 95 F.3d 787 (9th Cir. 1996).

198. 916 F. Supp. 1233 (M.D. Fla. 1996).

199. See id. at 1237. But see Mussari, 894 F. Supp. at 1364 ("The statute is clearly not tailored to address only those parents who specifically flee . . . ."). The CSRA does regulate the use of channels regardless of "whether the mechanism used to make this commercial transaction is the . . . Mail, an electronic funds transfer, or some other interstate channel." Nichols, 928 F. Supp. at 314.

200. See Kegel, 916 F. Supp. at 1237. It is a well-established principle that Congress has the authority to regulate individuals who use the channels of interstate commerce as a "`means of promoting or spreading evil, whether [of a] physical, moral or economic . . . nature.'" Nichols, 928 F. Supp. at 315 (quoting North Am. Co. v. SEC, 327 U.S. 686, 705 (1946)); accord Collins, 921 F. Supp. at 1036; United States v. Hopper, 899 F. Supp. 389, 393 (S.D. Ind. 1995).

201. 928 F. Supp. 302 (S.D.N.Y. 1996).

202. Id. at 314-15. "Whether this evasion and manipulation has reached a crisis point is subject to debate. But there is no requirement, regardless, that Congress need wait until there is a crisis to exercise its Commerce Clause power." Id. at 315.

203. See United States v. Lopez, 115 S. Ct. 1624, 1629 (1995); see also supra text accompanying note 162.

204. See id.

205. See Nichols, 928 F. Supp. at 309; Kegel, 916 F. Supp. at 1237; United States v. Parker, 911 F. Supp. 830, 843 (E.D. Pa. 1995); Mussari, 894 F. Supp. at 1363; United States v. Murphy, 893 F. Supp. 614, 616-17 (S.D.W. Va. 1995).

206. Lopez, 115 S. Ct. at 1629-30.

207. Id. at 1630; see also supra note 163 and accompanying text.

208. Cf. id. at 1629-30 (stating that the Commerce Clause grants Congress the power to regulate "activities that substantially affect interstate commerce"). Justice Breyer, in a dissenting opinion, forcefully argued, however, that the issue before the Court "is not whether the `regulated activity sufficiently affected interstate commerce,' but, rather, whether Congress could have `a rational basis' for so concluding." Id. at 1658 (Breyer, J., dissenting) (quoting id. at 1629).

209. See infra Part III.A.1.

210. See Lopez, 115 S. Ct. at 1626-34.

211. 18 U.S.C. § 922(q) (Supp. V. 1993).

212. Lopez, 115 S. Ct. at 1630-31.

213. Id. at 1631; see also Perez v. United States, 402 U.S. 146, 155 (1971) (asserting that there was a "tie-in" between intrastate extortion and interstate crime).