902 F.Supp. 727 (W.D.Tex. 1995), Crim. SA-95-CR-138, United States v. Bailey

Docket Nº:Crim. SA-95-CR-138
Citation:902 F.Supp. 727
Party Name:United States v. Bailey
Case Date:October 25, 1995
Court:United States District Courts, 5th Circuit, Southern District of Texas

Page 727

902 F.Supp. 727 (W.D.Tex. 1995)

UNITED STATES of America, Plaintiff,


Keith Douglas BAILEY, Defendant.

Crim. No. SA-95-CR-138.

United States District Court, W.D. Texas, San Antonio Division.

Oct. 25, 1995

Paul Joseph Brake, Federal Public Defender's Office, San Antonio, TX, for defendant.

Joan Lynn Marshall, U.S. Attorney's Office, San Antonio, TX, for plaintiff.


BIERY, District Judge.

In conjunction with the Court's Order of September 7, 1995, holding the Child Support Recovery Act ("CSRA"), 18 U.S.C. § 228, unconstitutional, the following opinion is issued:

Once upon a time, Keith and Lisa Bailey were, or at least thought they were, in love. The courtship culminated in marriage and the birth of a child. Alas, the ardor cooled and divorce ensued, with custody of the child being placed with Ms. Bailey. Believing custodial parents like Ms. Bailey needed additional means to collect unpaid child support payments, in 1992 Congress passed 18 U.S.C. § 228 ,

Page 728

making it a federal criminal offense if a parent "willfully fails to pay a past due support obligation with respect to a child who resides in another state." Though the record reflects Ms. Bailey availed herself successfully of at least one of numerous other state remedies for collecting child support, she nevertheless also sought criminal punishment of Mr. Bailey pursuant to 18 U.S.C. § 228. The Court assumes the Baileys' once tender feelings for one another are now more akin to ashes than embers.

First, the issue before the Court is not Mr. Bailey's moral or legal obligation to support his child. About this, there is no doubt: Mr. Bailey should fulfill his parental responsibilities. Nor is this a public policy debate about using limited federal law enforcement and judicial resources as a debt collection agency; for as a practical matter defendants convicted under 18 U.S.C. § 228 would more often than not be put on probation and ordered to make child support payments. One might reasonably argue, however, those limited resources can be used in better ways.

Rather, the question to be addressed is the constitutional balance of federalism between the central government and the states as affected by the Commerce Clause and recent pronouncements by the Supreme Court in relationship thereto. See United States v. Lopez, 514 U.S. 549, ---- - ----, 115 S.Ct. 1624, 1637-42, 131 L.Ed.2d 626 (1995) (Kennedy, J., concurring). It is of course a lower court's duty, in the judicial chain of command, to follow the dictates of those Supreme Court decisions or to glean guidance therefrom if the exact issue has not yet been addressed. In Lopez, the majority opinion reviews the historical evolution of the Commerce Clause and identifies three broad categories of activity which Congress may regulate under its commerce power:

A. Congress may regulate the use of the channels of interstate commerce;

B. Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities;

C. Congress may regulate those activities having a substantial relation to interstate commerce, i.e., those...

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