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UNITED STATES v. PARKER

October 30, 1995

UNITED STATES OF AMERICA
v.
STEVEN PAUL PARKER



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 OCTOBER 30, 1995

 Presently before the court is Steven Paul Parker's ("Defendant") Motion to Dismiss Indictment, *fn1" and the United States of America's ("the Government") opposition thereto. For the reasons set forth below, Defendant's motion will be granted.

 On June 29, 1995, the Government charged Defendant with willfully failing to pay a past due child support obligation in violation of section 2 of the Child Support Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228. *fn2" The single-count information alleges that Defendant, a resident of Fort Myers, Florida, willfully failed to pay a support obligation that was unpaid for more than one year and is in an amount greater than $ 5,000. The information further alleges that his two children live in a state other than Florida.

 The child support obligation arises from Defendant's divorce from Wendy Parker on September 1, 1987. The divorce decree, entered by the Court of Common Pleas of Bucks County, Pennsylvania, included a Property Settlement and Separation Agreement ordering Defendant to pay Wendy Parker $ 100.00 each week for the support of the two children born of the marriage. The payments were to begin on October 31, 1986. The agreement provides that Defendant's support of the children shall terminate when each child reaches age eighteen or graduates from high school. *fn3" The record does not reveal the exact amount of arrearage, but Defendant admits that he is accused of failing to pay child support since 1990. Defendant, however, disputes that he owes unpaid child support.

 Defendant was arraigned on July 27, 1995. On September 14, 1995, he moved to dismiss the information, arguing that (1) Congress's enactment of § 228 violates the Commerce Clause of the Constitution of the United States because the statute attempts to regulate an activity that does not substantially affect interstate commerce; and (2) § 228 impermissibly intrudes on the states' ability to regulate child support and criminal law as set forth in the doctrine of federalism and the Tenth Amendment to the Constitution. *fn4" The Government filed opposing papers on October 2, 1995, responding that (1) Congress had authority to enact § 228 under the Commerce Clause because the non-payment of child support has a substantial effect on interstate commerce and because it is a valid regulation of the use of a channel of interstate commerce; and (2) § 228 does not violate principles of federalism or the Tenth Amendment because it does not usurp the authority of the states to regulate family law and other areas of traditional state concern. *fn5"

 II. DISCUSSION

 A. The Commerce Clause

 The Commerce Clause empowers Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. The clause was designed "to protect the national interest in facilitating commerce between the states and with foreign nations." Pic-A-State PA, Inc. v. Pennsylvania, 42 F.3d 175, 179 (3d Cir. 1994). The Commerce Clause is the "chief source of regulatory power and, implicitly, a limitation on state legislative power." Laurence H. Tribe, American Constitutional Law, § 5-4, at 306 (2d ed. 1988).

 Before this year, it could be fairly concluded that "commerce clause doctrine grants Congress such broad power that judicial review of the affirmative authorization for congressional action is largely a formality." Id. § 5-8, at 316. And while Congress may establish criminal punishment for actions that interfere with any federal interest under its Commerce Clause power, the Supreme Court had "evidenced no inclination to exercise an active review of criminal statutes enacted under the commerce power." 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 4.10(c), at 415 (1992).

 The Supreme Court's approach to the Commerce Clause, however, changed course in its recent analysis and holding in United States v. Lopez, U.S. , 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). In Lopez, the Court reexamined the scope of the Commerce Clause as it related to activities having no direct relationship with interstate commerce. The Court identified an outer limit to this broad power as it concluded that the Commerce Clause did not authorize Congress to pass a criminal statute punishing the knowing possession of a handgun in a school zone. See id. The decision marked the first time since 1938 that the Court cut back on the assertion of Commerce Clause power by the Congress to regulate private activity that appeared to be local in nature. See Rotunda & Nowak, supra, § 4.9, at 405.

 The Court in Lopez summarized the development of Commerce Clause jurisprudence. It explained how congressional authority to legislate under the Commerce Clause expanded after NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937), United States v. Darby, 312 U.S. 100, 85 L. Ed. 609, 61 S. Ct. 451 (1941), and Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942), to include the power not only to regulate activities that directly involved commerce among states and nations, but in addition, those that, though intrastate, could substantially affect interstate commerce. See Lopez, 115 S. Ct. at 1627-29. After those cases, "the Court has undertaken to decide whether a rational basis exist[s] for concluding that a regulated activity sufficiently affected interstate commerce." Id. at 1629 (citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971); Katzenbach v. McClung, 379 U.S. 294, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964)). The Lopez Court emphasized, however, that even as the Commerce Clause power expanded, the Court has always recognized that the power has limits. 115 S. Ct. at 1627 (citing Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 189-90, 6 L. Ed. 23 (1824); 1628-29 (stating that "the scope of the interstate commerce power . . . 'may not be extended so as to embrace effects upon interstate commerce so indirect and remote that, to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government'") (quoting Jones & Laughlin Steel, 301 U.S. at 37).

 The Court then explained that Congress may regulate three broad categories of activities under the Commerce Clause. The first is in regard to the use of the channels of interstate commerce. 115 S. Ct. at 1629. Secondly, Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though that threat may come only from intrastate activities. Id. Thirdly, Congress may regulate activities that substantially affect interstate commerce. Id. at 1630; see also Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971).

 In this case, the Government argues that 18 U.S.C. § 228 is constitutional because it regulates an activity that (1) substantially affects interstate commerce and (2) comprises a use of the channels of interstate commerce.

 B. Activity that Substantially Affects Commerce

 1. The Applicable Standard

 Lopez involved a constitutional challenge to the Gun-Free School Zones Act of 1990, a statute in which Congress made it a federal crime "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." 115 S. Ct. at 1626. The Court began its analysis by asking whether the activity regulated by the statute affected "commerce." See id. at 1630-31. The Court answered "no" to that question and set forth the ingredients of a "commercial" activity:

 
[The statute] is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [It] is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

 Id. (footnote omitted).

 When recently faced with a Commerce Clause challenge to the federal carjacking statute, 18 U.S.C. § 2119, the United States Court of Appeals for our circuit announced its definition of "commerce" in light of the above excerpt from Lopez. See United States v. Bishop, 66 F.3d 569 (3d Cir. 1995). The Third Circuit, by a divided vote, expressly rejected a definition of Commerce Clause power that was limited to regulation of "a voluntary economic exchange," and instead followed Lopez' definition of "commercial" as "including those activities which form a part of an economic enterprise." Id. at *12 (citing Lopez, 115 S. Ct. at 1631). The Court of Appeals emphasized that a court's duty in evaluating whether Congress properly ...


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