U.S. v. Bailey

Decision Date12 June 1997
Docket NumberNo. 95-50721,95-50721
Citation115 F.3d 1222
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Keith Douglas BAILEY, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

David S. Kris, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellant.

Henry Joseph Bemporad, San Antonio, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, and SMITH and DUHE, Circuit Judges.

DUHE, Circuit Judge:

We consider for the first time the reach of Congress's authority to enact under the Commerce Clause the Child Support Recovery Act, 18 U.S.C. § 228, which makes it a federal crime to "willfully fail[ ] to pay a past due support obligation with respect to a child who resides in another state." We conclude that the Act passes constitutional muster under Congress's plenary powers to regulate both the use of the channels of interstate commerce and persons or things in interstate commerce. Accordingly, we reverse and remand for proceedings consistent with this opinion.


In May, 1994, a Texas state court ordered Defendant-Appellee Keith Douglas Bailey to pay $500 per month in child support for his four-year-old son. Thereafter, Bailey established residence in Tennessee and ceased, at least for a period of time, to make the court-ordered payments, a violation of the state court order. The Government, in the United States District Court for the Western District of Texas, responded by charging Bailey with violation of the Child Support Recovery Act ("CSRA" or "Act"), 18 U.S.C. § 228. Bailey moved to dismiss the charge on the ground that § 228 represents an unconstitutional exercise of Congress's legislative power. The district court agreed and dismissed the charge, holding that the CSRA exceeds Congress's authority under the Commerce Clause.

The court offered two reasons in support of its holding. First, relying on the Supreme Court's express reluctance in United States v. Lopez, 514 U.S. 549, 563-65, 115 S.Ct. 1624, 1632, 131 L.Ed.2d 626 (1995), to involve federal courts in family law matters, the court found constitutionally suspect Congress's attempt to regulate the familial relationship between Mr. and Mrs. Bailey. See United States v. Bailey, 902 F.Supp. 727, 728 (W.D.Tex.1995). Second, the court cited federalism concerns, stating both that the CSRA is an unconstitutional federal incursion into state criminal prosecutions, see id. at 728-29, and that federal courts faced with defenses challenging the validity of the underlying state court support order would be forced to review and apply these orders in violation of principles of federalism and comity. See id. at 729. Invoking the domestic relations exception to federal jurisdiction, the court then concluded that the CSRA could not be supported within our constitutional structure. See id. The Government timely appeals, arguing that the CSRA not only fits comfortably within Congress's plenary powers under the Commerce Clause but also does not impermissibly upset this nation's delicate federal-state balance.


We review the constitutionality of a federal statute de novo. See Madison v. Parker, 104 F.3d 765, 767 (5th Cir.1997). Under Supreme Court precedent, our review of legislation enacted under the Commerce Clause is circumscribed by a rational basis inquiry. This Court, therefore, may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity sufficiently involves interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 2359, 69 L.Ed. 2d 1(1981).

The CSRA punishes the "willful[ ] fail[ure] to pay a past due support obligation with respect to a child who resides in another State." 18 U.S.C. § 228(a). The statute defines "past due support obligation" as "any amount--(A) determined under a court order or an order of an administrative process pursuant to the law of a State to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living; and (B) that has remained unpaid for a period longer than one year, or is greater than $5,000." 18 U.S.C. § 228(d)(1).

Congress was motivated to enact the CSRA partly by statistics revealing the growing poverty within single-family homes and the observation that financial support from noncustodial parents could combat that poverty. See H.R. Rep. 102-771, at 5 (1992). The House Judiciary Committee reported that in 1989, approximately $5 billion of the $16.3 billion due in child support payments remained unpaid. See id. The Committee emphasized that this deficit is "unacceptably high," especially "in interstate collection cases, where enforcement of support is particularly difficult." Id. In fact, the Committee found that more than one-half of the custodial parents in interstate cases received support payments "occasionally, seldom or never," id., largely because delinquent parents were making "a mockery of State law by fleeing across State lines to avoid enforcement actions by State courts and child support agencies." 138 Cong. Rec. H7324, H7326 (daily ed. Aug. 4, 1992) (statement of Cong. Hyde). Recognizing that state extradition and enforcement "remains a tedious, cumbersome and slow method of collection," see H.R.Rep. No. 102-771, at 6, Congress enacted the CSRA "to strengthen, not to supplant, State enforcement efforts." 138 Cong. Rec. at H7326 (statement of Cong. Hyde).


The Commerce Clause delegates to Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. Early on, the Supreme Court defined Congress's Commerce Clause powers broadly, rejecting the suggestion that "commerce" is narrowly limited only "to traffic, to buying and selling, or the interchange of commodities." See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 189, 6 L.Ed. 23 (1824). The Court announced, "Commerce undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." Id. at 189-90. Since the earlier part of this century, the Court has given breadth to Gibbons 's pronouncement and has greatly expanded Congress's authority under this Clause.

The Supreme Court recently summarized the scope of Congress's Commerce Clause powers, identifying three aspects of interstate commerce that Congress may regulate: (1) "the use of the channels of interstate commerce[;]" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities[;]" and (3) "those activities having a substantial relation to interstate commerce." See Lopez, 514 U.S. at 557-58, 115 S.Ct. at 1629 (holding that 18 U.S.C. § 922(q), the Gun Free School Zones Act, exceeded Congress's commerce powers because the Act did not regulate economic activity and contained neither a jurisdictional element requiring an interstate nexus nor an express legislative history explaining the Act's connection to interstate commerce). We conclude that the activity regulated by the CSRA falls within the first and second categories of permissible regulation and therefore find that the CSRA is a constitutional exercise of Congress's commerce powers. 1 We decline to reach the question whether the CSRA may also be upheld under the third category. 2


Bailey challenges the constitutionality of the CSRA first on the basis that the Act, by its terms, lacks a jurisdictional nexus to interstate commerce. The Government replies that because the CSRA operates only when the noncustodial parent and his child reside in different states, a sufficient nexus exists to support jurisdiction. Bailey responds that this requirement is simply a condition precedent guaranteeing only the diversity of state residence that does not, on its face, implicate interstate commerce. We find Bailey's argument unpersuasive.

We note as an initial matter that Bailey is correct in his premise that the diversity of residence between parent and child alone is insufficient to bestow upon Congress the power to regulate under the Commerce Clause. If we were to so hold, we would unwittingly open the floodgates to allowing Congress to regulate any and all activity it so desired, even those activities traditionally reserved for state regulation, so long as opposing parties are diverse. We need not entertain this fear, however, because in CSRA litigation, there is more than just the satisfaction of the diversity-of-residence requirement; there is that plus the debt created by the state support order. 3 As discussed below, these in tandem are sufficient to support the constitutionality of the CSRA.

The first category of regulation, "the channels of interstate commerce," refers to "the interstate transportation routes through which persons and goods move." United States v. Parker, 911 F.Supp. 830, 842 (E.D.Pa.1995), rev'd. on other grounds, 108 F.3d 28 (3d Cir.1997). The second category, "the instrumentalities of interstate commerce, or persons or things in interstate commerce," includes "regulation or protection pertaining to instrumentalities or things as they move in interstate commerce." United States v. Kirk, 105 F.3d 997, 1008 (5th Cir.1997) (en banc) (per curiam) (opinion of Jones, J.) (emphasis added), petition for cert. filed, 65 U.S.L.W. 3756 (U.S. May 5, 1997) (No. 96-1759). Bailey's obligation, or debt, to his son not only implicates the use of the channels of interstate commerce but also is itself a thing flowing in interstate commerce. Bailey's obligation thus falls within the constitutional powers of Congress to regulate for these two...

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