and "national productivity" reasoning rejected in Lopez. Parker at 837-839.
Judge Bechtle next contrasted § 228 with other criminal provisions, including those reviewed in Lopez and Bishop. In addition, he compared § 228 to the statute reviewed in Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942), in which regulations enacted to control the volume of wheat were applied to an individual whose wheat was grown for home consumption. Because of the effect on competition, the regulation was valid under the Commerce Clause. Parker at 839 (quoting Wickard at 90). In another case, the Supreme Court upheld criminal provisions outlawing extortionate credit transactions because of the relationship between loan-sharking and organized interstate crime. Parker at 840 (citing Perez v. United States, 402 U.S. 146, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). Having reviewed these cases, Judge Bechtle found that the CSRA is most akin to the Gun-Free School Zones Act considered in Lopez. Parker at 839-842.
The government also argued that § 228 is valid as a regulation of a use of the channels of interstate commerce, the second category of regulation described in Lopez. Judge Bechtle rejected this notion for two reasons: First, such regulations are valid when they regulate goods or persons moving in interstate commerce, and unpaid child support is neither. Second, § 228 makes it a crime not to use the channels of interstate commerce by not making child support payments, as opposed to the use of such facilities. Parker at 842-843.
Because there is no nexus between the willful failure to pay child support and interstate commerce, Judge Bechtle also found no jurisdictional element to the statute. Id. at 843.
IV. DIFFERENCE WITH PARKER
As noted, this court concludes that the CSRA is valid under the Commerce Clause. Because this conclusion is contrary to the thorough opinion of the only other judge of this circuit to have considered the matter, we think it important to set forth the reasons for our opposite conclusion.
We note first that the Third Circuit's definition of "commerce" for purposes of review under the Commerce Clause is broad. The Third Circuit specifically rejected the dissent's notion that commerce is limited to voluntary transactions. Bishop at 581. See also Bishop at 591-592 (Becker, J., dissenting; "commercial transaction" refers to a voluntary economic exchange). The fact that the support payments are court-ordered, then, takes on lesser significance than is attributed to this characteristic in Parker.
The standard for this category of regulation under the Commerce Clause is that the regulated activity must substantially effect interstate commerce. The Parker opinion emphasizes the economic nature of the activity. Actually, carjacking is not an economic activity; it is only when the cars or their parts are disposed-of that the carjacker reaps a benefit, and only when the car is replaced by the owner or the insurer that there is a monetary loss.
In Parker, the court relied on Lopez for its emphasis on the economic nature of the activity. Actually, as Bishop shows, the activity itself need not be economic or commercial in nature, but its impact must be. The Supreme Court in Lopez did not restrict regulated activities to those which are commercial in nature, but found that mere possession of a gun in a school zone not only is not commercial in nature but has no significant impact, even in the aggregate, on interstate commerce. The reasoning in Parker is misplaced in that it purports to emphasize "activity" over "substantial," but actually emphasizes "activity" over "effect." The result of this reasoning is a conclusion that the Supreme Court rejected the Gun-Free School Zones Act because carrying a gun in a school is not an economic activity. Actually, the Court concluded that carrying a gun in a school not only is not an economic activity but has no impact on economic activity. It is for the latter reason that the statute was invalid.
The court in Parker also emphasized the fact that the withholding of child support payments is not part of a larger economic enterprise, as individual instances of carjacking are related to the larger business of stealing automobiles or individual instances of extortion are part of the larger business of organized crime. Certainly an organized, business-like approach to an activity such as extortion or carjacking will have a greater impact on legitimate commerce.
However, nothing in Bishop or the Supreme Court cases cited requires that a larger enterprise exist. The fact of such a business is a measure of the potential impact of the activity in question and would be a rational basis for congressional action, but it is not outcome-determinative of the question of the substantial effect of the activity. In fact, the Bishop court specifically held that the carjacking statute was constitutional despite the lack of evidence that the appellants had been part of a larger organization. Bishop at 583-584. This reflects the fact that it is the aggregate effect of the activity, not the particular manner of carrying it out (i.e. as a business) that determines whether the activity has a substantial effect on interstate commerce.
The rationale for finding § 228 to be valid under the Commerce Clause is set forth in a number of the district court opinions cited above, and most extensively in Nichols. We therefore will not review that reasoning at length here. To summarize, however, we find:
>>Payment of child support is an economic activity because it is the payment of a debt owed by one person to another, regardless of how the debt came into existence.
>>While the activity of willfully failing to pay child support may have a relatively minor impact in a particular case, the aggregate effect of such activity is that billions of dollars goes uncollected annually.