United States v. Bailey ( 1997 )


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  •                                  REVISED
                         UNITED STATES COURT OF APPEALS
                              For the Fifth Circuit
    
    
    
                                  No.    95-50721
    
    
    
    
                            UNITED STATES OF AMERICA
    
                                                          Plaintiff-Appellant,
    
    
                                        VERSUS
    
    
                               KEITH DOUGLAS BAILEY
    
    
                                                           Defendant-Appellee.
    
    
    
               Appeal from the United States District Court
                     For the Western District of Texas
    
                                  June 12, 1997
    
    
    Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.
    
    JOHN M. DUHÉ, JR., 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.
    
                                    BACKGROUND
    
         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, 
    115 S. Ct. 1624
    , 1632 (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
    
    
                                           2
    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.
    
                                  DISCUSSION
    
          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 (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
    
    
                                         3
    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).
    
    
                                           I
    
         The    Commerce   Clause   delegates     to    Congress   the   power     to
    
    “regulate Commerce with foreign Nations, and among the several
    
                                           4
    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 (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, 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
    
    
                                              5
    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
    
                                            A
    
         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.
    
    
            1
          Six other circuits have considered the constitutionality of
    the CSRA under the Commerce Clause and have found it constitutional
    for various reasons. See United States v. Johnson, No. 96-4323,
    
    1997 WL 283447
     (4th Cir. May 30, 1997); United States v. Parker,
    
    108 F.3d 28
     (3d Cir. 1997); United States v. Bongiorno, 
    106 F.3d 1027
     (1st Cir. 1997); United States v. Hampshire, 
    95 F.3d 999
     (10th
    Cir. 1996), cert. denied, 
    117 S. Ct. 753
     (1997); United States v.
    Mussari, 
    95 F.3d 787
     (9th Cir. 1996), cert. denied, 
    117 S. Ct. 1567
    (1997); United States v. Sage, 
    92 F.3d 101
     (2d Cir. 1996), cert.
    denied, 
    117 S. Ct. 784
     (1997).     Unless otherwise indicated, we
    express no opinion as to our acceptance or rejection of the
    reasoning employed therein.
        2
         We are puzzled by the dissent’s lengthy focus on the problems
    attendant with the invocation of the “substantially affects”
    category in the instant case. See infra Part I.A. As the dissent
    itself   recognizes,   we   make   no   effort   to   defend   the
    constitutionality of the CSRA on the basis that the failure to pay
    court-ordered child support “substantially affects” interstate
    commerce.
    
                                            6
          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.
    
          3
           Because the creation of the debt is wholly intrastate and
    because such debt gains interstate characteristics only when one
    parent moves out-of-state, some argue that the jurisdictional nexus
    supporting the CSRA really is diversity of residence and thus take
    issue with our statement that diversity alone is not enough.     We
    disagree. It does not matter that the creation of the debt is
    wholly intrastate. That fact becomes irrelevant once one party
    moves out-of-state, because it is at this point, and not before,
    that the government has jurisdiction under the CSRA.
    
                                              7
    Kirk, 
    105 F.3d 997
    , 1008 (5th Cir. 1997) (en banc) (per curium)
    
    (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
    
    reasons.
    
         As to the first category, the child support obligation--made
    
    interstate in nature as a direct consequence of the diversity
    
    requirement imposed upon the obligor and the obligee--can be
    
    satisfied normally by a payment that necessarily must move in
    
    interstate   commerce.4    The    mechanism    used   to   complete      this
    
         4
          The dissent assails our position as unsupported by the text
    of the Act, asserting that even if one assumes interstate child
    support payments “normally” travel in interstate channels, their
    regulation under the Commerce Clause is unjustified because “the
    CSRA does not require the use of channels or instrumentalities of
    interstate commerce as a prerequisite to federal regulation.” See
    infra Part I.C. We find this argument infirm. Whether the CSRA
    does or does not require delinquent parents to use the channels or
    instrumentalities of interstate commerce is wholly irrelevant. The
    dissent’s position belies its reluctance to accept the economic and
    practical realities incident to the collection of child support
    payments involving a parent and child living in different states.
    It stretches our collective imaginations to summon one example when
    compliance with child support orders will not “require[] the
    regular movement of money and communications across state lines.”
    Bongiorno, 106 F.3d at 1032.      Indeed, the custodial parent’s
    attempts to collect past due support will involve the mail,
    telephone, and telegraph. See United States v. Nichols, 928 F.
    Supp. 302, 312 (S.D.N.Y. 1996), aff’d., No. 96-1742, 
    1997 WL 28004
    (2d Cir. May 23, 1997) (unpublished). And the delinquent parent’s
    payment of that support will involve the same.      So, while “the
    record [may not] demonstrate that the child support order in the
    instant case required Mr. Bailey to use” interstate channels,
    see infra Part I.C., we are hard pressed to imagine either how Ms.
    Bailey would seek collection of (from Texas), or how Mr. Bailey
    
                                       8
    transaction could be the mail, a wire, an electronic transfer of
    
    funds, or some other interstate channel.      See Mussari, 95 F.3d at
    
    790; see also Nichols, 928 F. Supp. at 314.          Regardless of the
    
    mechanism used, the payment obligation and the payment itself will
    
    be placed in the flow of interstate commerce as they invoke the
    
    channels   or   instrumentalities   of   commerce   among   the   several
    
    states.5   Bailey’s situation illustrates this point:       a resident of
    
    Tennessee, Bailey can satisfy his court-ordered support obligation
    
    to his child in Texas only by making payments that will cross state
    
    lines. His payment, therefore, must of necessity invoke interstate
    
    transportation routes.    Congressional authority will continue to
    
    
    would send or have sent (from Tennessee), the court-ordered child
    support payments without invoking the channels or instrumentalities
    of interstate commerce.
         5
           We admit confusion at the dissent’s insistence on invoking
    Lopez as authority in contradiction to our position. The dissent
    posits that:
            [u]nlike statutes that contain a jurisdictional
            nexus element ‘which would ensure, through case-by-
            case inquiry, that the [activity] in question
            affects interstate commerce,’ Lopez, 115 S. Ct. at
            1631,    the    CSRA    regulates   every     interstate
            obligation, without exception.
               By its express terms, therefore, the CSRA does not
            regulate     the     use    of    the     channels    or
            instrumentalities     of   interstate    commerce,   but
            indiscriminately     regulates    all   child    support
            payments.
    See infra Part I.C.
       First, we reiterate that Lopez is inapplicable to our discussion
    today as      it   involves    solely   the   interpretation    of the
    “substantially affects” category, which we decline to invoke here
    as a constitutional justification for the CSRA. Second, in any
    event, Lopez is readily distinguishable.          Whereas the Gun-Free
    School Zones Act offered no means by which courts could ensure that
    a nexus between the regulated activity and interstate commerce
    existed, the CSRA expressly limits its reach to those child support
    debts that cross state lines. See Bongiorno, 106 F.3d at 1033;
    Nichols, 928 F. Supp. at 312-13.
    
                                        9
    exist over defendants in CSRA litigation as long as the transaction
    
    contemplated      by    the    state   court   order   flows   in   interstate
    
    commerce.6      See, e.g., Associated Press v. NLRB, 
    301 U.S. 103
    , 128
    
    (1937)       (holding   that    the    Associated   Press’s    not-for-profit
    
    newsgathering activities “amount[ed] to commerical intercourse . .
    
    . within the meaning of the Constitution” because it “involve[d]
    
    the constant use of channels of interstate . . . communication”),
    
    cited in Camps Newfound/Owatonna, Inc. v. Town of Harrison, No. 94-
    
    1988, 
    1997 WL 255351
    , at *10 (U.S. May 19, 1997).
    
         As to the second category, the child support obligation itself
    
    is a thing of commerce that has acquired an interstate character.7
    
             6
           That the CSRA is invoked whether the noncustodial parent
    flees across state lines to avoid his payment obligation or the
    noncustodial parent takes advantage of the custodial parent and
    child’s movement out-of-state as occasion to stop payment is
    irrelevant in assessing the constitutionality of the CSRA. Either
    circumstance “takes advantage of the barriers to enforcement posed
    by state lines.” Nichols, 928 F. Supp. at 315. Although some
    legislative history indicates the CSRA was motivated to punish a
    noncustodial parent’s flight to avoid payment, other legislative
    history indicates that that situation was not the exclusive focus
    of the CSRA. See H.R. Rep. No. 771, at 6. Moreover, the text of
    the statute is not predicated upon the defendant’s flight; it is
    predicated simply on the willful failure of the noncustodial parent
    to pay an interstate debt. In any event, Bailey’s challenge to the
    constitutionality of the CSRA on this ground must fail as applied
    in the instant case because Bailey himself fled across state lines.
         7
          Defining “commerce” as “tantamount to ‘trade,’” the dissent
    crisply states that child support obligations are not commerce:
    “They are unilateral obligations, not bilateral commercial
    transactions . . . . Consequently, child support payments do not
    entail a quid pro quo, the defining characteristic of a commercial
    transaction.”   See infra Part I.B.     These are bald assertions
    indeed, and the cases cited in support are unavailing.         That
    “commerce” has been defined to include “trade,” see, e.g., Camps
    Newfound/Owatonna, 
    1997 WL 255351
    , at *5; United States v.
    Robertson, 
    115 S. Ct. 1732
    , 1733 (1995) (per curium); United States
    v. South-Eastern Underwriters Ass’n, 
    322 U.S. 533
    , 539 (1944);
    Jordan v. Tashiro, 
    278 U.S. 123
    , 127-28 (1928); Welton v. Missouri,
    
                                            10
    See Bongiorno, 106 F.3d at 1032; Mussari, 95 F.3d at 790.                 This
    
    debt continues to move in interstate commerce as long as the
    
    obligor and obligee reside in different states and as long as the
    
    debt actually exists.       Both the contemplated payment and the
    
    obligation, therefore, independently form the nexus to interstate
    
    commerce.
    
                                          B
    
         Challenging   the    Act’s   constitutionality        under   the   first
    
    category of Commerce Clause authority, Bailey next argues that by
    
    regulating his breach of a state court order, the CSRA in actuality
    
    impermissibly allows federal courts to exercise jurisdiction over
    
    his failure   to   use   interstate       channels   of   commerce.      Bailey
    
    
    
    91 U.S. 275
    , 280 (1875), does not compel the conclusion, as the
    dissent would have us believe, that “commerce” is limited to trade.
       Were we to support such a narrow definition, we would find
    ourselves inimical to those cases holding, for example, that it is
    interstate commerce to transport a woman from one state to another
    in a common carrier, Hoke v. United States, 
    227 U.S. 308
    , 320-23
    (1913); to carry across a state line in a private automobile five
    quarts of whiskey intended for personal consumption, United States
    v. Simpson, 
    252 U.S. 465
    , 467 (1920); and to transmit information
    over interstate telegraph lines, Pensacola Tel. Co. v. Western
    Union Tel. Co., 96 U.S. (6 Otto) 1, 11 (1877), all cited in South-
    Eastern, 322 U.S. at 549.
       The construction of the term “commerce” is a practical one and
    embraces economic activity beyond that which is traditionally
    considered commerce. See Lopez, 115 S. Ct. at 1636-37; see also
    Swift & Co. v. United States, 
    196 U.S. 375
    , 398 (1905). Child
    support obligations and their ensuing payments constitute economic
    activity and are thus properly the subject of Commerce Clause
    regulation. See, e.g., Parker, 108 F.3d at 31 (“Failure to make
    required payments gives rise to a debt which implicates economic
    activity.”); Hampshire, 95 F.3d at 1003 (holding that court-ordered
    obligation to pay money interstate is economic activity regulable
    by Congress); Sage, 92 F.3d at 105 (“This [CSRA] case involves
    matters that plainly meet [the definition in Gibbons v. Ogden, 22
    U.S. (9    Wheat) 1, 189 (1824)] of commerce among the several
    States.   The Act presupposes intercourse, an obligation to pay
    money, and the intercourse concerns more States than one.”).
    
                                        11
    maintains that the CSRA, when reduced to its essence, is not a
    
    regulation      of      already    existing         commerce     but   a   jurisdictional
    
    bootstrap       enacted      by    Congress         to   force    individuals        to     use
    
    interstate commerce.             These arguments lack merit.
    
                                                   1
    
         Addressing Bailey’s first contention, we point out that the
    
    CSRA is not a regulation of the nonuse of interstate channels.
    
    Bailey made use of the interstate channels, as contemplated by the
    
    CSRA, the moment he moved away from Texas without fulfilling his
    
    child support obligation.8                See Camps Newfound/Owatonna, 
    1997 WL 255351
    , at *5 (observing that "the transportation of persons across
    
    state       lines   .    .   .    has   long    been     recognized        as   a    form    of
    
    ‘commerce’.” (citing Edwards v. California, 
    314 U.S. 160
    , 172 & n.1
    
    (1941)      (noting      that     “[i]t   is    immaterial        whether       or   not    the
    
    transportation is commercial in character”))).                         He himself thereby
    
    placed the debt in the flow of interstate commerce.                                  Bailey,
    
    therefore, is not doing nothing.                    Moreover, by failing to pay his
    
    debt, he is willfully violating a state court order requiring him
    
    to do something, viz., to consummate an interstate transaction.
    
    His delinquency serves only to frustrate this consummation.                                 The
    
    
            8
           “By this reasoning,” the dissent conjectures, “any person
    moving to another state ipso facto federalizes all his financial
    obligations, and ‘utilizes’ the channels of interstate commerce,
    merely by crossing a state line.” See infra note 12. Our opinion
    today holds nothing of the sort, and the dissent’s attempt to
    characterize it otherwise is tortured. Our opinion does not stand
    for the proposition that all interstate financial obligations are
    subject to federal regulation but only that congressional attempts
    at the federal enforcement of such obligations are, once state
    initiatives have failed.
    
                                                   12
    CSRA, designed to address this problem, seeks to prevent the
    
    frustration of an interstate commercial transaction that otherwise
    
    would have occurred absent the defendant’s dereliction. It is thus
    
    subject to federal control for that reason.                 We agree with the
    
    Second Circuit that “[i]f Congress can take measures under the
    
    Commerce Clause to foster potential interstate commerce, it surely
    
    has power to prevent the frustration of an obligation to engage in
    
    commerce.” Sage, 92 F.3d at 105-06 (holding CSRA constitutional on
    
    grounds that it is valid regulation of instrumentalities of, or
    
    things    or    persons   moving    in,     interstate      commerce);    accord
    
    Hampshire, 95 F.3d at 1003.        Supreme Court precedent supports this
    
    position.
    
         In Dahnke-Walker Milling Co. v. Bondurant, 
    257 U.S. 282
    , 286
    
    (1921),   the    defendant,   a    Kentucky     farmer,     contracted    with   a
    
    Tennessee      corporation   to   deliver    wheat    via   rail   cars   to   the
    
    corporation’s Tennessee flour mill. The farmer sent some wheat but
    
    refused to deliver the rest, and the flour mill sued in Kentucky
    
    state court for breach of contract.             Id.   The farmer insisted the
    
    contract was invalid insofar as the plaintiff had failed to satisfy
    
    a Kentucky statute imposing conditions on out-of-state corporations
    
    contracting with local entities.          Id.    Rejecting this defense, the
    
    Court held that the state statute did not afford the farmer relief
    
    because it was “repugnant to the commerce clause” insofar as the
    
    contract was “a part of interstate commerce, in which the plaintiff
    
    lawfully could engage without any permission from the state of
    
    Kentucky.”       Id. at 292-93.       The Court therefore rejected, on
    
    
                                          13
    Commerce Clause grounds, the farmer’s attempt to frustrate the
    
    satisfaction of his obligation to pay on the interstate contract.
    
         Although the instant case involves an obligation arising from
    
    a court order, not a contract, the premise is the same:      as was
    
    true of the farmer’s contractual obligation, Bailey’s obligation to
    
    send money across state lines immerses him in commerce among the
    
    several states.   See Sage, 92 F.3d at 106; United States v. Lewis,
    
    
    936 F. Supp. 1093
    , 1097 (D.R.I. 1996) (characterizing CSRA as
    
    statute that essentially penalizes the failure to pay an interstate
    
    debt, and citing First Circuit case holding that debt collection
    
    directly involves interstate commerce (citation omitted)); see also
    
    Sonneborn Bros. v. Cureton, 
    262 U.S. 506
    , 515 (1923) (holding that
    
    contracts for interstate sale and delivery of oil are “transactions
    
    [that] are interstate commerce in its essence”).    Furthermore, it
    
    cannot be overlooked that if we were to accept Bailey’s nonuse
    
    reasoning, “Congress would be permitted to regulate parents who
    
    underpay their required child support but not parents who fail to
    
    pay their required child support at all.   Such an interpretation is
    
    unfathomable.”    Lewis, 936 F. Supp. at 1097.
    
         We pause to note that even if Congress sought, through the
    
    CSRA, to regulate the nonuse of interstate channels, it would still
    
    be within its constitutional command to do so.    The Supreme Court
    
    has often held, in several contexts, that the defendant’s nonuse of
    
    interstate channels alone does not shield him from federal purview
    
    under the Commerce Clause.     In Heart of Atlanta Motel, Inc. v.
    
    United States, 
    379 U.S. 241
    , 250 (1964), the Court upheld Commerce
    
    
                                     14
    Clause jurisdiction over a local motel that failed to engage in
    
    interstate commerce when it refused to rent rooms to black guests.
    
    The Court held that by failing to rent the rooms, the hotel
    
    inhibited black travelers from crossing state lines and thus
    
    obstructed interstate commerce that otherwise would have occurred.
    
    Id. at 253.    In Standard Oil Co. v. United States, 
    221 U.S. 1
    , 68
    
    (1911), the Court upheld the Sherman Act, 15 U.S.C. §§ 1, 2, as
    
    permissible congressional action under the Commerce Clause.                     The
    
    Sherman Act prohibits restraints of trade and obstructions of
    
    interstate commerce in order to facilitate commerce that otherwise
    
    would occur absent the defendant’s monopolistic behavior. Finally,
    
    in United States v. Green, 
    350 U.S. 415
    , 420 (1956), the Court
    
    found constitutional      the   Hobbs     Act,   18       U.S.C.   §   1951,   which
    
    punishes “interference      with   interstate         commerce     by   extortion,
    
    robbery   or   physical   violence      [by]     .    .     .   outlaw[ing]    such
    
    interference ‘in any way or degree.’”            To accept Bailey’s nonuse
    
    argument would mean, as emphasized by the Second Circuit, that
    
    “Congress would have no power to prohibit a monopoly so complete as
    
    to thwart all other interstate commerce in a line of trade[;]” or
    
    to punish under the Hobbs Act “someone who successfully prevented
    
    interstate trade by extortion and murder.”                Sage, 92 F.3d at 105.9
    
        9
         Our position should not be taken to support “the more radical
    proposition that Congress is empowered to regulate the passive
    failure of individuals to engage in interstate commerce,” see infra
    note 15, as the dissent argues, for we say nothing of the sort.
    The cases cited herein hold that Congress has the power under the
    aegis of the Commerce Clause to prevent the obstruction of
    commerce. Bailey’s “intentional refusal to satisfy [his] debt is
    as much an obstruction of commerce between the states as any act”
    made unlawful by the public accommodations provisions of the Civil
    
                                         15
         Moreover, we disagree with those who attempt to distinguish
    
    these        cases   as   concerned   with   something   more   traditionally
    
    commercial than the payment of child support obligations.                The
    
    payment of support obligations is indeed commercial; it involves
    
    the transfer of money from one hand to another.            In fact, nothing
    
    could be more commercial.10           That the underlying reason for the
    
    obligation relates to a matter of domestic relations does not
    
    detract from this position.
    
                                             2
    
         In response to Bailey’s jurisdictional bootstrap argument, we
    
    emphasize that Congress did not impose the underlying obligation to
    
    pay child support.          The CSRA applies only when the defendant has
    
    violated a state court order imposing upon him that obligation.
    
    The state court order, therefore, not the CSRA, obliges Bailey to
    
    pay, and his volitional movement out of state, in tandem with his
    
    
    
    Rights Act of 1964, by the Sherman Act, or by the Hobbs Act.             See
    Mussari, 95 F.3d at 790.
            10
           The dissent impugns this statement as ipse dixit and as an
    invitation to Congress “to regulate all financial transactions.”
    See infra Part I.B. its attack is a mischaracterization of our
    holding, which is limited only to the interstate payment and
    collection of child support obligations and nothing more.
       Furthermore, we pause here to note that the Supreme Court has
    explained that commerce exists among the several states where there
    is “a ‘continuous and indivisible stream of intercourse among the
    states’ involving the transmission of large sums of money and
    communications by mail, telephone, and telegraph.” United States
    v. Shubert, 
    348 U.S. 222
    , 226 (1955) (quoting South-Eastern, 322
    U.S. at 541 (holding that insurance business falls within aegis of
    Commerce Clause because it is marked by, inter alia, collection of
    premiums and payments of policy obligations)); accord Bongiorno,
    106 F.3d at 1031 (holding CSRA constitutional under Commerce
    Clause); United States v. Hopper, 
    899 F. Supp. 389
    , 393 (S.D. Ind.
    1995) (same).
    
                                            16
    willful failure to fulfill that obligation, places that obligation
    
    in interstate commerce. Congress has simply brought its Article I,
    
    section 8 powers to bear on an activity which now carries the
    
    mettle of an interstate transaction.               For the reasons above, we
    
    hold the CSRA falls within Congress’s Commerce Clause authority.
    
    
                                          II
    
                                            A
    
         Bailey    next   argues     that       the    CSRA    transgresses    state
    
    sovereignty by running afoul of the domestic relations exception to
    
    diversity jurisdiction, an exception that has not received express
    
    constitutional acceptance but nonetheless is respected by federal
    
    courts.    See, e.g. Ankenbrandt v. Richards, 
    504 U.S. 689
    , 693-94
    
    (1992); Barber v. Barber, 62 U.S. (21 How.) 582 (1858).                       The
    
    domestic    relations     exception         obtains       from   the   diversity
    
    jurisdiction statute, 28 U.S.C. § 1332, see Ankenbrandt, 504 U.S.
    
    at 700-01, and therefore it has no application where, as here,
    
    there exists an independent basis for federal jurisdiction.                   The
    
    instant action is based not on diversity but on an express grant of
    
    jurisdictional authority under 28 U.S.C. § 1331. Because this case
    
    clearly arises under this Court’s federal question jurisdiction,
    
    the domestic relations exception presents no bar.
    
         Moreover, any analogy to the domestic relations exception
    
    fails.      Federal     courts   have       long    divested     themselves    of
    
    jurisdiction over only the issuance of divorce, alimony, and child
    
    custody decrees, finding that such domestic relations matters are
    
    within the unique province of state courts to decide.                  See id. at
    
                                          17
    703-04 (articulating policy considerations behind exception).              The
    
    CSRA in no way endeavors to regulate this hallowed ground;11 it
    
    seeks merely to enforce a child support order already promulgated
    
    by a state court. The only aspect of domestic relations implicated
    
    in a CSRA litigation is the family law character of the underlying
    
    support order.        That alone, however, is insufficient to invoke the
    
    domestic relations exception to federal courts’ otherwise proper
    
    jurisdiction.         See id. at 706-07 (holding that domestic relations
    
    exception did not bar a case involving alleged sexual and physical
    
    abuse        committed   by   plaintiff’s   former   husband   against   their
    
    children because case did not involve issuance of divorce, alimony,
    
    or child custody decree); see also Lewis, 936 F. Supp. at 1106
    
    (citing       cases   involving    underlying   divorce   or   child   custody
    
    proceedings in which federal courts exercised jurisdiction despite
    
    domestic relations exception because actual claim being litigated
    
    did not involve familial relations).
    
         Our decision today does not stray from our prior holding in
    
    Rogers v. Janzen, 
    891 F.2d 95
     (5th Cir. 1989).                  Rogers is a
    
    diversity action between former spouses in which the plaintiff
    
    sought damages for emotional distress suffered when her former
    
    
            11
          The dissent presents no support for its untenable position
    to the contrary.    Apparently ignoring our discussion here, the
    dissent contends that the CSRA intrudes upon matters of family law,
    thereby “subverting the federal system.” See infra Part I.A. The
    dissent fails to recognize, however, that the imposition of federal
    penalties for the failure to pay child support does not occasion a
    “federal intervention in the field of family law,” as it claims,
    but rather is akin to enforcement actions “over which the federal
    courts have long accepted jurisdiction.” United States v. Kegel,
    
    916 F. Supp. 1233
    , 1235 (M.D. Fla. 1996).
    
                                           18
    husband allegedly sexually abused their daughter and denied her
    
    access to the child.       Id. at 96.        We held that although the
    
    plaintiff’s claims sounded in tort and thus did “not fall squarely
    
    within the traditional scope of the field of domestic relations,”
    
    federal court resolution was inappropriate because hearing the
    
    claim would necessitate that type of inquiry into the marital
    
    relationship better conducted by state courts.               Id. at 98.    We
    
    explained that at the heart of the plaintiff’s suit was the
    
    allegation that her former husband had sexually abused their
    
    daughter.      Id.    Federal court resolution of this issue would
    
    therefore require relitigation of factual determinations made by
    
    the state court prior to its custody award and thus create the risk
    
    of incongruous federal and state decrees.          Id.
    
         Significantly, we suggested that had the plaintiff’s action
    
    been “one in which the court need only decide whether an already-
    
    set custody or child support award has been complied with,” federal
    
    jurisdiction would have been proper.           Id. (internal quotations
    
    omitted).     The case before us involves just that.          Federal courts
    
    need not resuscitate final state court proceedings to enforce the
    
    underlying child support order. We need only press upon Bailey the
    
    great weight of the federal courts in an effort to compel him to
    
    fulfill his legal obligations under state law.
    
                                          B
    
                                          1
    
         Bailey    next   argues   that   the   CSRA   offends    principles   of
    
    federalism and comity. He insists the Act calls for federal review
    
    
                                          19
    and application of state court orders and thereby increases the
    
    possibility of federal courts upsetting the federal-state balance
    
    of power established by the Constitution.        The district court in
    
    Mussari illustrated the alleged offense to our federal structure
    
    this way:
    
            A defendant being prosecuted under the CSRA could
            arguably defend the action by challenging the
            validity of the underlying state court support order.
            Either the federal court would be forced to review
            the support order, or stay the pending federal
            criminal case while the support order is collaterally
            attacked in state court. Neither of these scenarios
            is desirable in light of the principles of comity and
            the speedy trial provisions federal courts are bound
            by in criminal matters.
    
    United States v. Mussari, 
    894 F. Supp. 1360
    , 1367 (D. Ariz. 1995),
    
    rev’d., 
    95 F.3d 789
     (9th Cir. 1996), cert. denied, 
    117 S. Ct. 1567
    
    (1997).     We adopt the succinct response of the court in United
    
    States v. Ganaposki, 
    930 F. Supp. 1076
    , 1083 (M.D. Pa. 1996):
    
            [T]he CSRA goes no further than the enforcement of
            state court decrees and is not an attempt by Congress
            to legislate with respect to the amount of child
            support payments in any particular case; any ruling
            that support must be paid and the amount to be paid
            is left to the states.
    
    A CSRA prosecution turns only on the defendant’s violation of a
    
    state court order.   It does not turn on the fairness of the order,
    
    the reasons underlying the state court’s issuance of the order, the
    
    defendant’s relationship with his children or former spouse, or any
    
    other   matter   involving   relitigation   of   a   family   law   issue.
    
    Moreover, there is no language in the CSRA allowing the federal
    
    court to look beyond the four corners of the state child support
    
    order or permitting the defendant to collaterally attack the state
    
    
                                      20
    court order in federal court.
    
                                              2
    
          Bailey also questions whether Congress, in enacting the CSRA,
    
    has   intruded   upon    the    states’       traditional      dominion        to    enact
    
    criminal laws.       In the interests of federalism and comity, Bailey
    
    disputes Congress’s authority to criminalize that behavior, viz.
    
    the willful failure to pay court-ordered child support, which some
    
    states have chosen specifically not to address, for whatever
    
    reasons.     Moreover, he contends that when Congress criminalizes
    
    conduct already condemned by a state, as Texas has done here, see
    
    Tex. Penal Code Ann. § 25.05 (West 1993), it insults the delicate
    
    balance between federal and state criminal jurisdiction.                             See,
    
    e.g., United States v. Enmons, 
    410 U.S. 396
    , 411-12 (1973).
    
          Bailey’s   argument       fails    to    recognize       that    principles      of
    
    federalism and comity are not compromised when the regulated
    
    activity   falls      inside    constitutionally-defined               perimeters       of
    
    congressional    control.           Concluding    that    the    CSRA     survives       a
    
    Commerce   Clause      challenge,       we    cannot     now    say     Congress       has
    
    improperly    arrogated       the   state’s     prerogative       to    penalize       the
    
    willful failure to pay child support; Congress draws its authority
    
    to criminalize the same from its plenary powers under the Commerce
    
    Clause.
    
                                              C
    
          Bailey next argues that the CSRA tramples upon the state’s
    
    sovereign right to legislate in matters of family law and thus
    
    contravenes    the    Tenth    Amendment.        We    find     no     merit    in    this
    
    
                                             21
    position.        The Tenth Amendment provides that “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.”      U.S. Const. amend. X.       “In a case . . . involving the
    
    division of authority between federal and state governments, the .
    
    . . inquiries [under the Commerce Clause and the Tenth Amendment]
    
    are mirror images of each other.                If a power is delegated to
    
    Congress    in    the   Constitution,     the     Tenth   Amendment   expressly
    
    disclaims any reservation of that power to the States; if a power
    
    is   an   attribute     of   state    sovereignty    reserved   by    the   Tenth
    
    Amendment, it is necessarily a power the Constitution has not
    
    conferred on Congress.”        New York v. United States, 
    505 U.S. 144
    ,
    
    156 (1992).
    
          When Congress enacted the CSRA, it acted pursuant to its
    
    delegated powers under the Commerce Clause.               It did not usurp the
    
    state’s police powers to regulate purely intrastate matters of
    
    family or criminal law.         Penalizing those who willfully fail to
    
    comply with child support obligations, the CSRA regulates purely
    
    private conduct and makes no attempt to regulate states as states.
    
    See id.     In fact, the legislative history indicates the CSRA is
    
    designed to aid state efforts, which unfortunately often are
    
    unsuccessful, to enforce interstate support orders. The CSRA in no
    
    way intends to supplant them.            Bailey’s Tenth Amendment argument
    
    therefore fails.
    
    
                                         CONCLUSION
    
          For the reasons discussed above, we find the constitutional
    
                                             22
    objections unavailing.        The CSRA does not exceed Congress’s powers
    
    under the Commerce Clause nor does it encroach on matters within
    
    the   province   of   state    sovereignty.    Federal   jurisdiction   is
    
    therefore proper.     We accordingly REVERSE and REMAND.
    
    
    
    
    ENDRECORD
    
    
    
    
                                         23
    JERRY E. SMITH, Circuit Judge, dissenting:
    
    
    
          In United States v. Lopez, 
    514 U.S. 549
    , 
    115 S. Ct. 1624
    
    (1995), the Court reaffirmed the fundamental principle that the
    
    Constitution established a national government of enumerated and
    
    limited powers.     Accordingly, the Court emphasized that the power
    
    granted to Congress under the Commerce Clause is subject to strict
    
    limits, and it is the duty of the courts to police those limits and
    
    thereby preserve the federal system.
    
          Therefore, laws enacted under the aegis of the Commerce Clause
    
    “'must be considered in the light of our dual system of government
    
    and 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.'”        115 S. Ct. at 1628-29 (quoting NLRB v.
    
    Jones & Laughlin Steel Corp., 
    301 U.S. 1
    , 37 (1937)).              Lopez is a
    
    landmark, signaling the revival of federalism as a constitutional
    
    principle, and it must be acknowledged as a watershed decision in
    
    the history of the Commerce Clause.12
    
          The lessons of Lopez are lost, however, in the instant case.
    
    Rather than rigorously enforcing the limitations on federal power,
    
    
         12
            This court has recognized that Lopez is a landmark in constitutional law,
    even if the judges have disagreed as to the precise boundaries of the Commerce
    Clause. Compare United States v. Kirk, 
    105 F.3d 997
    , 999 (5th Cir. 1997) (en banc)
    (opinion of Higginbotham, J.) (recognizing that “'if Lopez means anything, it is
    that Congress’s power under the Commerce Clause must have some limits'”) (quoting
    United States v. Rybar, 
    103 F.3d 273
    , 291 (3d Cir. 1996) (Alito, J., dissenting))
    with id. at 1010 (opinion of Jones, J.) (recognizing that Lopez establishes the
    “outer boundary on Congress’s criminal jurisdiction under the Commerce Clause”).
    as Lopez commands, the panel majority upholds the constitutionality
    
    of a statute that contains no reference to interstate commerce,
    
    regulates an activity that is not commercial, and invades the field
    
    of family law, a traditional area of exclusive state sovereignty.
    
    Therefore, I conclude that the Child Support Recovery Act (“CSRA”)
    
    flouts the limitations on the Commerce Clause, flies in the face of
    
    Lopez, and threatens to “'obliterate the distinction between what
    
    is national and what is local and create a completely centralized
    
    government.'”   Id. at 1629.
    
         This is a difficult area, and the panel majority has made a
    
    diligent effort to reconcile the relevant jurisprudence as it
    
    applies to this case.   Disagreeing with the majority's conclusion,
    
    however, I respectfully dissent.
    
    
    
                                     I.
    
         As the Lopez Court recognized, see id. at 1626-27, the seminal
    
    case describing the commerce power is Gibbons v. Ogden, 22 U.S.
    
    (9 Wheat.) 1 (1824), in which Chief Justice Marshall, writing for
    
    the Court, defined the appropriate methodology for reviewing an act
    
    of Congress as asking (1) whether the subject of the legislation is
    
    commerce; (2) if so, whether the commerce affects other states; and
    
    (3) whether the legislation regulates the commerce. Id. at 189-97.
    
    In Lopez, the Court identified three broad categories of activities
    
    that Congress may regulate under the Commerce Clause.     First, it
    
    may regulate the use of the channels of interstate commerce.
    
    Second,   it    is   empowered   to   regulate   and   protect   the
    
    
                                     25
    instrumentalities of interstate commerce, or persons or things in
    
    interstate commerce.         Finally, it may regulate those activities
    
    that “substantially affect” interstate commerce.                 Id. at 1629-30.
    
    None    of   these    categories     of    commerce    legislation,      however,
    
    encompasses the CSRA.
    
    
    
                                              A.
    
           Although the authority to regulate intrastate activities that
    
    “substantially affect” interstate commerce has provided the primary
    
    source for the dramatic expansion of federal power in this century,
    
    as well as the foundation for recent Commerce Clause jurisprudence,
    
    the majority wisely declines to defend the constitutionality of the
    
    CSRA by claiming that unpaid child support “substantially affects”
    
    interstate commerce. In Lopez, the Supreme Court disavowed the use
    
    of speculative economic theories to prove that a given activity
    
    “substantially affects” interstate commerce, as the employment of
    
    such theories would permit 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.”        Id. at 1632.        Yet that is precisely what
    
    the CSRA purports to do.           Consequently, the constitutionality of
    
    the CSRA cannot be sustained under the “affecting commerce” prong.
    
           The “affecting commerce” doctrine is a judicial invention,
    
    rather than a faithful interpretation of the constitutional text.
    
    The Commerce Clause authorizes Congress to regulate commerce among
    
    the    several   states,     not   an     activity    that    affects   commerce.
    
    
                                              26
    Likewise, Gibbons explains that the test of a statute enacted under
    
    the Commerce Clause is whether the legislation regulates commerce,
    
    not whether it regulates some activity that affects commerce.
    
    Indeed, Gibbons asks whether the commerce affects other states, not
    
    whether the activity affects interstate commerce.               See Gibbons,
    
    22 U.S. at 194-95.13      Nevertheless, the Supreme Court has presided
    
    over a dramatic expansion of the Commerce Clause in this century,
    
    authorizing the federal government to regulate any activity that
    
    “substantially affects” interstate commerce.              See, e.g., United
    
    States v. Darby, 
    312 U.S. 100
    , 118-23 (1941); Wickard v. Filburn,
    
    
    317 U.S. 111
    , 125 (1942).14
    
          In Lopez, the Court acknowledged that the “affecting commerce”
    
    doctrine is a legitimate interpretation of the Commerce Clause only
    
    insofar as it preserves some limit on the scope of federal power,
    
    vindicating the principle that the Constitution established a
    
    government of enumerated powers and preserving the distinction
    
    between that which is truly national and that which is indeed
    
    local. Id. at 1634.      To illustrate the limitations of the commerce
    
    power, the Court disavowed any use of the “affecting commerce”
    
    doctrine that would justify federal intervention in the field of
    
    
    
    
          13
             Neither the constitutional text nor Gibbons uses the term “interstate,”
    but I will employ it, as Lopez and other construing opinions have used it almost
    universally.
          14
             See Lopez, 115 S. Ct. at 1642-50 (Thomas, J., concurring) (discussing
    the evolution of the “affecting commerce” doctrine).
    
                                          27
    family law.     See id. at 1632.15      Yet the CSRA occasions just such
    
    an intrusion, subverting the federal system by imposing federal
    
    penalties for the failure to pay state-ordered child support.
    
          The    Lopez    Court   warned   that   if   Congress      can     invoke    the
    
    “affecting commerce” doctrine to invade traditional areas of state
    
    sovereignty, such as family law, “we are hard-pressed to posit any
    
    activity by      an   individual   that     Congress     is    without     power    to
    
    regulate.”     Id. at 1632.      Accordingly, the Court recognized that
    
    such an expansive interpretation of the Commerce Clause “would bid
    
    fair to convert congressional authority under the Commerce Clause
    
    to a general police power of the sort retained by the States.”                     Id.
    
    at 1634.
    
          Because the Supreme Court has abjured the federal regulation
    
    of family law under the guise of the “affecting commerce” doctrine,
    
    the panel majority is forced to defend the constitutionality of the
    
    CSRA by claiming that the act satisfies the first two prongs of
    
    Lopez.      But federal criminalization of the failure to make child
    
    support      payments    regulates     neither     the        channels     nor     the
    
    instrumentalities of interstate commerce, nor persons or things in
    
    interstate commerce.
    
    
    
                                           B.
    
          The CSRA imposes criminal penalties on parents who fail to
    
    satisfy an interstate child support obligation.                 If the payment of
    
    
         15
            Indeed, even the dissenters in Lopez agreed that family law is beyond the
    power of Congress to regulate under the Commerce Clause. See, e.g., Lopez, 115 S.
    Ct. at 1661 (Breyer, J., dissenting).
    
                                           28
    child      support   constituted     “commerce,”      therefore,     it    would
    
    necessarily follow that interstate child support payments are
    
    “things in interstate commerce,” within the meaning of Lopez.                For
    
    purposes of the Commerce Clause, however, child support payments
    
    are not “commerce.”
    
          The majority dismisses this objection with a wave of the hand,
    
    assuming that court-ordered child support payments are “commerce”:
    
    “The payment of support obligations is indeed commercial; it
    
    involves the transfer of money from one hand to another.                 In fact,
    
    nothing could be more commercial.”          Not surprisingly, the majority
    
    can offer no authority to support this ipse dixit, which would
    
    permit Congress to regulate all financial transactions. Such an
    
    unlimited definition would swell the Commerce Clause far beyond the
    
    traditional context of “commerce.”16          In fact, “commerce” requires
    
    more than a mere transfer of wealth, as the history of Commerce
    
    Clause jurisprudence demonstrates.
    
          In    Gibbons,    Chief    Justice    Marshall    rejected     a    narrow
    
    definition that would limit the term “commerce” to traffic, buying
    
    and selling, and the interchange of commodities.                  Id. at 189.
    
    Instead,     Gibbons   defined    “commerce”     broadly    to   include    “the
    
    commercial intercourse between nations, and parts of nations.” Id.
    
    at 189-90. Even under this broad definition, however, the Commerce
    
    Clause does not grant Congress carte blanche.               To the contrary,
    
    Congress may regulate only commercial intercourse, so its power is
    
    
          16
             Under this definition, for example, Congress would be free to regulate
    alimony, wills and estates, gift promises, and charitable contributions, invading
    traditional areas of state sovereignty under the guise of the Commerce Clause.
    
                                           29
    confined to the regulation of trade, business transactions, and
    
    economic activity.17        Therefore, in order to constitute a “person
    
    or thing in interstate commerce,” subject to direct regulation
    
    under the Commerce Clause, a person or thing must be engaged in
    
    “commercial intercourse.”18
    
          We should interpret terms such as “commerce” in the context of
    
    the common understanding of them at the time they were written.                   It
    
    is axiomatic that the word “commerce” is, and has always been,
    
    tantamount to “trade,” the exchange of goods and services by
    
    purchase and sale.          See, e.g., BLACK’S LAW DICTIONARY 269 (6th ed.
    
    1990);    WEBSTER’S   NEW   INT’L   DICTIONARY    538   (2d   ed.    1958).     The
    
    cornerstone of the commerce power, ever since the founding era, has
    
    been the     power    to    regulate   trade.       “Whatever       other   meanings
    
    'commerce'     may    have     included      in    1787,      the    dictionaries,
    
    encyclopedias, and other books of the period show that it included
    
    trade: business in which persons bought and sold, bargained and
    
    contracted.      And this meaning has persisted to modern times.”
    
    
         17
            See Jordan v. Tashiro, 
    278 U.S. 123
    , 127-28 (1928) (noting that “for more
    than a century it has been judicially recognized that in a broad sense [commerce]
    embraces every phase of commercial and business activity and intercourse”); Welton
    v. Missouri, 
    91 U.S. 275
    , 280 (1875) (noting that commerce “comprehends intercourse
    for the purposes of trade in any and all its forms, including the transportation,
    purchase, sale, and exchange of commodities between the citizens of our country and
    the citizens or subject of other countries, and between the citizens of different
    States”).
         18
           This is not to say that non-commercial activities are beyond the reach of
    the Commerce Clause, but merely that they are not interstate commerce per se and
    cannot be regulated directly as “things in interstate commerce.” To regulate such
    non-commercial activities, therefore, Congress must legislate indirectly, pursuant
    to the Lopez categories (e.g., the channels of interstate commerce, the
    instrumentalities of interstate commerce, or activities that “substantially affect”
    interstate commerce”). In this respect, Lopez is consistent with prior caselaw in
    departing from Gibbons and from the constitutional text in that, as I have pointed
    out, neither the text nor Gibbons refers to activity that affects interstate
    commerce.
    
                                            30
    United States v. South-Eastern Underwriters Ass’n, 
    322 U.S. 533
    ,
    
    539 (1944).19
    
          Indeed, the essential characteristic of “commerce” continues
    
    to be its relationship to business and trade.                The Supreme Court
    
    recently reaffirmed that a party is “in commerce” when it is
    
    “'directly engaged in the production, distribution, or acquisition
    
    of goods and services in interstate commerce.'”                United States v.
    
    Robertson, 
    115 S. Ct. 1732
    , 1733 (1995) (quoting United States v.
    
    American Bldg. Maintenance Indus., 
    422 U.S. 271
    , 283 (1975)).20                  In
    
    order to constitute “a thing in interstate commerce,” therefore,
    
    subject to direct regulation under the Commerce Clause, the subject
    
    of federal regulation must be engaged in “commerce,” which is
    
    tantamount to “commercial intercourse” or “trade.”
    
          Child support payments, accordingly, are not “commerce.” They
    
    are unilateral obligations, not bilateral commercial transactions;
    
    they do not involve trade; and they do not entail the purchase or
    
    sale of goods or services.          As the plain language of the statute
    
    attests, the CSRA regulates only child support obligations required
    
    pursuant to a court order or an order of an administrative process,
    
    not a private contract.        See 18 U.S.C. § 228(d)(1)(A).           Therefore,
    
    payment of child support is not conditioned on the performance of
    
    
    
         19
            See also Lopez, 115 S. Ct. at 1643 (Thomas, J., concurring) (“At the time
    the original Constitution was ratified, 'commerce' consisted of selling, buying, and
    bartering, as well as transporting for these purposes.”).
           20
              Likewise, the Court recently observed that a party is deemed to be
    “engaged in commerce” if it is a purchaser or provider of “goods and services.”
    Camps Newfound/Owatonna, Inc. v. Town of Harrison, No. 94-1988, 
    1997 WL 255351
    ,
    at *5 (U.S. May 19, 1997).
    
                                            31
    a reciprocal duty by the obligee, nor does it benefit the obligor.
    
    Consequently, child support payments do not entail a quid pro quo,
    
    the defining characteristic of a commercial transaction.
    
           In short, child support payments include none of the elements
    
    of commerce, but merely represent transfers of wealth pursuant to
    
    a court order.        Like the Gun Free School Zones Act invalidated in
    
    Lopez, therefore, the CSRA 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.”                    See
    
    Lopez, 115 S. Ct. at 1630-31.
    
           The conclusion that child support payments are not “commerce”
    
    requires us to define the boundaries of the Commerce Clause,
    
    distinguishing between “commercial” and “noncommercial” activities.
    
    In    Lopez,    the    Court   acknowledged      that    distinctions      between
    
    “commercial” and “noncommercial” activities are often problematic
    
    and may result in legal uncertainty in some cases.                   Id. at 1633.
    
    Nevertheless, this uncertainty is inherent in the federal system,
    
    and it is the duty of the courts to interpret the Constitution.
    
           The Constitution mandates this uncertainty by withholding
           from Congress a plenary police power that would authorize
           enactment of every type of legislation. Congress has
           operated within this framework of legal uncertainty ever
           since this Court determined that it was the judiciary’s
           duty “to say what the law is.” Any possible benefit from
           eliminating this “legal uncertainty” would be at the
           expense of the Constitution’s system of enumerated
           powers.
    
    Id. (citations omitted).           Accordingly, we cannot abdicate our duty
    
    to draw lines and enforce the outer limits of the Commerce Clause,
    
    even if this line-drawing occasions some legal uncertainty.
    
    
                                             32
          Fortunately, although it may be hard for courts to distinguish
    
    between “commercial” and “noncommercial” activities in some cases,
    
    this is not one of them.        We need not invoke technical distinctions
    
    to determine whether child support payments constitute “commerce,”
    
    as these payments do not share the essential characteristic of
    
    commerceSSthe relationship to trade and commercial intercourse.
    
    Mindful of the legal uncertainty inherent in the definition of
    
    “commerce,” Justice Holmes once observed that “commerce among the
    
    States is not a technical legal conception, but a practical one,
    
    drawn from the course of business.”              Swift & Co. v. United States,
    
    
    196 U.S. 375
    , 398 (1905).         Child support payments are outside the
    
    “course     of   business”     and    cannot     be    defined   as   “commerce.”
    
    Accordingly, even under a practical interpretation of “commerce,”
    
    interstate child support payments cannot reasonably be classified
    
    as “things in interstate commerce.”21
    
    
    
                                               C.
    
          Having concluded that child support payments are not “things
    
    in   interstate      commerce”       and    do   not   “substantially     affect”
    
    interstate commerce, I must consider the last possible ground for
    
    
           21
              I am at a loss to understand the suggestion that the child support
    obligation itself, rather than the child support payments, might constitute a “thing
    in interstate commerce.” While an intangible right, such as a commercial debt, may
    constitute the object of a commercial transaction, it is not a “thing” that “moves
    in interstate commerce.” To suggest otherwise is to transform the Commerce Clause
    into an exercise in metaphysics.
    
       Apparently, the majority means to suggest that the child support obligation is
    interstate commerce per se and is therefore a “thing in interstate commerce.” This
    conclusion is belied, however, by the fact that child support payments are not
    “commerce.” Accordingly, the child support obligation cannot be a “thing in
    interstate commerce.”
    
                                               33
    regulation of child support payments under the Commerce Clause:
    
    use of the channels or instrumentalities of interstate commerce.
    
    The majority concludes that the CSRA constitutes a valid regulation
    
    of such “channels” and “instrumentalities” because the statute
    
    imposes criminal penalties only for the breach of interstate child
    
    support obligations.       I respectfully disagree.
    
         The CSRA prohibits the willful failure to satisfy a child
    
    support obligation “with respect to a child who resides in another
    
    State.”     18 U.S.C. § 228(a).        By its express terms, the statute
    
    regulates     interstate        transactions,   not      the   channels     or
    
    instrumentalities of interstate commerce.             There is no mention of
    
    commerce,    nor   is   there    a   jurisdictional    nexus   to   interstate
    
    commerce.     Accordingly, the statute effectively requires only
    
    diversity of citizenship among the parties, reducing what is often
    
    called the “Interstate Commerce Clause”22 to nothing more than the
    
    “Interstate Clause.”
    
         The majority agrees that mere diversity of citizenship is not
    
    enough to authorize federal regulation under the Commerce Clause,
    
    noting that such a rule “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.”             This defect is cured,
    
    according to the majority, by the fact that the child support order
    
    “can be satisfied normally by a payment that necessarily must move
    
         22
            See, e.g., Seminole Tribe v. Florida, 
    116 S. Ct. 1114
    , 1125-27 (1996);
    Cotton Petroleum Corp. v. New Mexico, 
    490 U.S. 163
    , 192 (1989); Merrion v.
    Jicarilla Apache Tribe, 
    455 U.S. 130
    , 154 (1982).
    
                                           34
    in interstate commerce.”          Consequently, the majority concludes,
    
    interstate child support payments necessarily invoke the channels
    
    of, and flow in, interstate commerce.            Not so.
    
          Regardless of whether interstate child support payments will
    
    “normally” travel in interstate channels (as the majority assumes),
    
    the CSRA does not require the use of channels or instrumentalities
    
    of interstate commerce as a prerequisite to federal regulation.
    
    Unlike statutes that contain a jurisdictional nexus element “which
    
    would ensure, through case-by-case inquiry, that the [activity] in
    
    question affects interstate commerce,” Lopez, 115 S. Ct. at 1631,
    
    the CSRA regulates every interstate obligation, without exception.
    
          By its express terms, therefore, the CSRA does not regulate
    
    the   use   of   the   channels     or   instrumentalities       of   interstate
    
    commerce,    but   indiscriminately       regulates    all   interstate     child
    
    support payments.        Accordingly, the CSRA does not constitute a
    
    permissible regulation of the channels of interstate commerce. See
    
    United States v. Kirk, 
    105 F.3d 997
    , 1008 (5th Cir. 1997) (en banc)
    
    (opinion of Jones, J.) (stating that the first Lopez category
    
    involves statutes that are distinguished by express jurisdictional
    
    nexus requirements).23
    
          23
             The constitutional significance of the jurisdictional nexus requirement
    cannot be overstated. If an activity is commercial, the act of crossing state lines
    makes it interstate commerce per se, subject to direct federal regulation. In such
    cases, no express jurisdictional nexus must be included in the statute, because
    there is no need to establish the constitutional predicate for federal regulation.
    As I have noted, however, child support payments are not commercial, and hence are
    not subject to direct federal regulation.
    
       If an activity is not commercial, the mere act of crossing state lines does not
    expose it to direct federal regulation, as it is not interstate commerce per se.
    In order to justify federal regulation of such non-commercial activity, Congress
    must provide an express jurisdictional nexus to interstate commerce. Such a
    jurisdictional nexus provides the sole constitutional foundation for
    
                                             35
          Because the CSRA does not include an express jurisdictional
    
    nexus requirement, but instead regulates all interstate child
    
    support payments, it is constitutional only if state borders are
    
    characterized as “channels” of interstate commerce, rendering all
    
    
    
    
    federal regulation.
    
       Hence, as Lopez demonstrates, Congress may regulate the use of the channels or
    instrumentalities of interstate commerce, or economic activities that “substantially
    affect” interstate commerce, in order to justify the regulation of activities that
    are not inherently commercial. The jurisdictional nexus is the source of this
    constitutional justification. See, e.g., 18 U.S.C. § 1073 (prohibiting the use of
    the channels of interstate commerce by flight to avoid prosecution or the obligation
    to testify in court); 18 U.S.C. § 1201 (prohibiting the use of the channels of
    interstate commerce to transport an abductee across state lines); 18 U.S.C. §§ 2312-
    15 (prohibiting the shipment of stolen goods in interstate commerce); 18 U.S.C. §
    1341 (prohibiting use of the mails to perpetrate fraud); see also United States v.
    Orito, 
    413 U.S. 139
    , 140 n.1 (1973) (noting that 18 U.S.C. § 1462 prohibits
    transportation of obscene material in interstate commerce); Brooks v. United States,
    
    267 U.S. 432
    , 435 (1925) (noting that the National Motor Vehicle Theft Act prohibits
    the transportation of stolen vehicles in interstate commerce); United States v.
    Hill, 
    248 U.S. 420
    , 422 (1919) (noting that the Reed Amendment prohibits
    transportation of intoxicating liquor in interstate commerce); Caminetti v. United
    States, 
    242 U.S. 470
    , 491-92 (1917) (noting that the Mann Act prohibits the
    transportation of women in interstate commerce for immoral purposes); Hoke v. United
    States, 
    227 U.S. 308
    , 317-18 (1913) (same).
    
       If a federal statute includes such an express jurisdictional nexus, providing a
    constitutional foundation for the act, the courts will not inquire into the motives
    underlying congressional regulation of non-commercial activity. “'[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.'”
    Heart of Atlanta Motel v. United States, 
    379 U.S. 241
    , 256 (1964) (quoting
    Caminetti, 242 U.S. at 491); accord United States v. Darby, 
    312 U.S. 100
    , 114
    (1941). In the absence of such an express jurisdictional element, however, Congress
    is not empowered to exercise a federal police power over non-commercial activities.
    
       As I have explained, interstate child support payments are not “commerce,” and
    are not subject to direct federal regulation as interstate commerce per se.
    Accordingly, the statute must require an express jurisdictional nexus to provide the
    constitutional basis for federal regulation of this non-commercial activity. It
    does not. The absence of an express jurisdictional nexus distinguishes the CSRA
    from valid regulations of the channels and instrumentalities of interstate commerce.
    Absent an express jurisdictional nexus, the CSRA is unconstitutional.
    
       Finally, there is nothing in the present record to indicate whether any use of
    interstate channels or instrumentalities was either contemplated or required. In
    this regard, I very much question the panel majority's unusual statement that
    “Bailey made use of the interstate channels, as contemplated by the CSRA, the moment
    he moved away from Texas without fulfilling his child support obligation; he himself
    thereby placed the debt in the flow of interstate commerce.” By this reasoning, any
    person moving to another state ipso facto federalizes all his financial obligations,
    and “utilizes” the channels of interstate commerce, merely by crossing a state line.
    
                                            36
    interstate activity subject to federal legislation.24             The majority
    
    is obligated to endorse this rationale, stating that “Bailey’s
    
    obligation    to   send   money   across    state   lines   immerses    him   in
    
    commerce among the several states.”             This definition, however,
    
    pares the “Interstate Commerce Clause” to the “Interstate Clause,”
    
    belying the claim that the CSRA is not solely a diversity statute.
    
    Such an interpretation of the Commerce Clause would grant Congress
    
    carte blanche to regulate all transactions among diverse parties,
    
    “opening the floodgates” to the creation of a federal police
    
    power.25
    
          Furthermore, this court may not cure the constitutional defect
    
    in the CSRA by taking “judicial notice” that child support payments
    
    must necessarily travel in the channels of interstate commerce.
    
    There is nothing in the record to demonstrate that child support
    
    payments must necessarily use such channels, nor does the record
    
    demonstrate that the child support order in the instant case
    
          24
            As stated above, only activities that are inherently commercial may be
    regulated solely on the basis that the subject of federal regulation has crossed
    state lines, rendering it interstate commerce per se. Non-commercial activities,
    such as child support payments, are subject to federal regulation only if they
    use a channel or instrumentality of interstate commerce, or “substantially
    affect” interstate commerce. Absent a jurisdictional nexus, therefore, the CSRA
    is constitutional only if we assume that state borders are, by definition,
    “channels” of interstate commerce.        This expansive interpretation would
    effectively nullify the phrase “channels of interstate commerce,” however, which
    necessarily implies something less than state borders, and would expose all
    interstate activity to a federal police power.
            25
               Although it traces its lineage to cases such as Champion v. Ames,
    
    188 U.S. 321
     (1903) (upholding the constitutionality of the Lottery Act, basing
    the power to prohibit the interstate sale of lottery tickets on the purpose,
    i.e., to proscribe evil conduct), the notion of a Commerce Clause-based federal
    police power gained full steam in Perez v. United States, 
    402 U.S. 146
     (1971),
    which upheld application of a federal anti-loan-shark statute to local activities
    without any showing of an interstate nexus or effect.         This jurisprudence
    unfortunately blurred the distinction between regulating commerce and exercising
    the police power to eliminate “evils” that threaten the general welfare, i.e.,
    the distinction between a regulatory offense and creating a “true” crime.
    
                                           37
    required Mr. Bailey to use them.            To assume that interstate child
    
    support     payments    must     necessarily    utilize    the    channels    or
    
    instrumentalities of interstate commerce is to beg the question,
    
    abdicating the judicial obligation to enforce the outer limits of
    
    the Commerce Clause.       See Lopez, 115 S. Ct. at 1633.
    
          Although we strive to interpret statutes in order to avoid an
    
    unconstitutional construction, it is also true that this canon of
    
    construction is “'not a license for the judiciary to rewrite
    
    language enacted by the legislature.'”            Chapman v. United States,
    
    
    500 U.S. 453
    , 464 (1991) (quoting United States v. Monsanto, 
    491 U.S. 600
    , 611 (1989)).         The CSRA does not regulate the channels or
    
    instrumentalities of interstate commerce, and therefore it exceeds
    
    the Commerce Clause.       This court may not cure the constitutional
    
    defect     by   assuming   the   necessary     relationship      to   interstate
    
    commerce and thereby abdicating its constitutional duty.
    
          The CSRA is redolent of a police power, not a responsible and
    
    reflective exercise of legislative authority appropriate to a
    
    government of enumerated powers.            Accordingly, the CSRA is not a
    
    constitutional exercise of the commerce power. To uphold the CSRA,
    
    “a purely criminal law, with no nexus to interstate commerce, whose
    
    enforcement intrudes upon traditional police powers of the states,
    
    would convert the commerce power into a reserved 'general federal
    
    police power.'”      Kirk, 105 F.3d at 1016 (opinion of Jones, J.).26
    
    
          26
             Because I conclude that the absence of a jurisdictional nexus fatally
    undermines the constitutionality of the CSRA, I do not reach the question whether
    Congress is empowered to regulate the failure to engage in interstate commerce.
    Nevertheless, I must express my misgivings about this creative interpretation of
    the Commerce Clause.
    
                                           38
                                          II.
    
          The CSRA contains no express jurisdictional nexus requirement,
    
    regulates an activity that is not commercial, and invades the field
    
    of family law, a traditional area of exclusive state sovereignty.
    
    Therefore, with the revival of federalism as a constitutional value
    
    in Lopez, I conclude that the statute cannot survive constitutional
    
    scrutiny. So, I respectfully dissent from the diligent efforts of
    
    the   panel    majority     to    confront     this    difficult     issue    of
    
    constitutional interpretation.
    
    
    
    
       It is counterintuitive to suppose that by empowering Congress “to regulate
    commerce . . . among the several states,” the framers of the Constitution
    envisioned federal criminal prosecutions for the failure to utilize an interstate
    instrumentality, i.e., the failure to send a support payment (whether through the
    mails or by some other interstate means), as a valid regulation of the use of the
    channels of interstate commerce.       This interpretation turns the original
    understanding of the Commerce Clause on its head.
    
       Furthermore, the cases cited by the majority do not support the proposition
    that Congress is authorized to regulate the failure to use channels of interstate
    commerce. Upon close inspection, each case holds that Congress may regulate the
    active obstruction of interstate commerce and interference with the flow of
    interstate commerce. Such protective legislation is fundamentally different from
    the more radical proposition that Congress is empowered to regulate the passive
    failure of individuals to engage in interstate commerce. See, e.g., Heart of
    Atlanta Motel, 379 U.S. at 253 (upholding the Civil Rights Act of 1964 because
    Congress may prohibit racial discrimination that obstructs the flow of interstate
    commerce); United States v. Green, 
    350 U.S. 415
    , 420 (1956) (upholding the Hobbs
    Act because Congress may prohibit violent actions that interfere with interstate
    commerce); Standard Oil Co. v. United States, 
    221 U.S. 1
    , 68 (1911) (upholding
    the Sherman Act because Congress may prohibit restraints of trade that obstruct
    interstate commerce).
       Finally, insofar as these protective statutes regulate activities that
    obstruct the flow of interstate commerce, they are properly classified under the
    third prong of Lopez, which permits Congress to regulate economic activities that
    “substantially affect” interstate commerce. While the obstruction of interstate
    commerce is not a “use” of the channels of interstate commerce, under the common
    meaning of “use,” such interference does exert a “substantial effect” on
    commerce. I have already explained, however, that the CSRA cannot be upheld as
    an activity that “substantially affects” interstate commerce, and the majority
    makes no effort to defend the act under this theory. Accordingly, the cases
    cited by the majority do not demonstrate that Congress is empowered to regulate
    the failure to use channels of interstate commerce.
    
                                           39