Can the feds put deadbeat parents in jail? A look at the constitutionality of the Child Support Recovery Act.

• Author: Shields, Robyn

1. Introduction

   Imagine receiving a letter from the U.S. Attorney's office saying the following: "Dear Sir/Madam, you are delinquent in your child support payments and you must pay up or we will hunt you down, prosecute you and throw you in jail."(1) Should you take it seriously and pay every last penny? Should you ignore it because you know from past experience that, even if you are found, it is highly unlikely that you will be forced to pay?(2) Perhaps you should take the approach of some "deadbeat(3) parents who received such a letter and not only refuse to pay, but claim that the federal government has no right to intrude in this domestic relations matter.(4)

   In 1992 Congress passed the Child Support Recovery Act (CSRA)(5) which allows the federal government to jail parents who have fallen behind in their child support payments.(6) Prior to this legislation, state law alone governed criminal nonpayment of child support.(7) This Note explores the reasons and motivation behind the federalization of nonpayment of child support and its constitutional implications. Part I of this Note will provide a brief overview of the history of federal child support legislation, focusing specifically on interstate enforcement of child support orders. Part II will focus on the CSRA and its legislative purpose, history, and enforcement procedures, as well as the extent to which the CSRA is accomplishing the goals envisioned by Congress. Part III will look at the constitutional extent of federal power under the Commerce Clause by examining United States v. Lopez,(8) the first case in sixty years in which the Supreme Court held that Congress exceeded its power under the Commerce Clause.(9) Subsequent district court cases addressing the constitutionality of the CSRA in light of Lopez will be discussed in Part IV, thus highlighting the present split among the courts on this issue. In conclusion, Part V will discuss the future of the CSRA and will include the author's predictions concerning whether the CSRA will survive Lopez.

   Since this constitutional debate centers around such a personal and volatile issue, numerous questions and concerns arise. Does Congress automatically avoid the constitutional question because the magic words "with respect to a child who lives in another State,"(10) are in the statute? Did the framers of the Constitution intend that Congress could, by the simple inclusion of interstate language somewhere within the text of a statute, immunize a statute from constitutional challenge? Can Congress enact such legislation or has Congress intruded into areas that should be regulated by the states? This Note attempts to answer these questions by examining not only the Commerce Clause, but also by looking at the Tenth Amendment's role in the analysis.

2. History of the Federal Enforcement of Child Support

   1. Title IV-A

      Prior to 1935, the federal government did not play a role in child support programs.(11) It was not until the passage of Title IV-A of the Social Security Act of 1935(12) that federal money was given to the states to support children whose fathers were deceased or disabled.(13) The federal government took responsibility for these children by providing financial assistance.(14) After enacting Title IV-A, Congress paid little attention to child support programs, allowing the states to administer their own programs. When the number of children on welfare "began to overburden the public purse,"(15) Congress decided it was time to expand the federal role in child support collection.

   2. Child Support Enforcement Amendments

      The combination of taxpayer responsibility for increasing welfare rolls(16) and the states' ineffective child support programs(17) inspired Congress to enact Title IV-D in 1974 to help collect support payments from parents.(18) Title IV-D established a federal Office of Child Support Enforcement (OCSE) and demanded compulsory participation by the states.(19) The government finally decided that using federal resources to enforce child support payments would be cost effective, since the result would be a reduction in the number of families on welfare.(20) Although Title IV-D firmly established the federal government's participation in the child support area, it merely set general standards for the states to follow.(21) "[P]rimary enforcement and administrative responsibility" continued to be within the discretion of individual states.(22)

      Title IV-D did not do enough to relieve the burden on the taxpayers(23), and, as a result, Congress passed the Child Support Enforcement Amendments of 1984.(24) These amendments again broadened the federal role. Each state had to establish child support guidelines based on specific criteria or risk losing federal funding for its public welfare programs.(25) One problem, however, with the 1984 amendments, was that these guidelines were not binding on judges and officials who determine child support awards.(26) As a result, people in like circumstances could potentially receive varying amounts of support, resulting in a lack of consistency.(27)

   3. Family Support Act

      In 1988, the Family Support Act (FSA)(28) was passed in an attempt to alleviate the problem of inconsistent awards. It required that the states' guidelines act as a "rebuttable presumption" regarding the correct amount of the obligation.(29) Only in cases where application of the guidelines would be inappropriate could the guidelines be discarded.(30)

      Prior to the FSA, there was no real federal attempt to improve interstate enforcement of child support obligations.(31) In 1950, however, the Commissioners on Uniform State Laws drafted the Uniform Reciprocal Enforcement of Support Act (URESA)(32) to ease the process of enforcing support orders when the custodial parent lives in a state different from that of the non-custodial parent.(33)

      Additionally, the FSA created the U.S. Commission on Interstate Child Support.(34) Congress established the Commission "to study the problems of interstate enforcement and to develop a new model interstate law."(35) After several years of studying the problem, one of the Commission's recommendations was to make nonpayment of child support by an out-of-state parent a federal offense.(36) Although some states already enacted laws which made nonsupport a crime,(37) federal prosecution would allow the offender to be prosecuted regardless of whether the state in which the delinquent parent or custodial parent lives has a criminal statute for nonpayment of support. The recommendation to federalize criminal nonsupport led Congress to enact the Child Support Recovery Act of 1992.(38)

3. Child Support Recovery Act: The Deadbeat Dad Law

   1. Purpose of CSRA

      "Nonpayment of child support should be a crime because children are far too precious a resource to be abandoned without penalty.(39) This statement, made on the floor of the House of Representatives, shows the sentiment behind the CSRA; support of the CSRA was equivalent to supporting "family values."(40) Although much of the legislative history discusses the need for parents to own up to their responsibilities,(41) the real issue for Congress is that the American taxpayer ends up paying for these "irresponsible" parents.(42)

      Congress believed that while many states have made willful failure to pay child support a criminal offense,(43) successful enforcement of these laws effectively ended at individual state borders.(44) Custodial parents testified at Congressional hearings, telling how their spouses(45) would travel to one state, staying just long enough for the "legal process [to] catch up with him," and then move on to another state.(46) This process was repeated over and over again.(47)

      Congressman Hyde saw a need for this legislation because of the nature of today's mobile society, where divorced parents "will all too frequently live in different States."(48) He further stated that while this may be unavoidable, allowing delinquent fathers to go from state to state to avoid their obligations and prevent enforcement is not inevitable. The CSRA's purpose was to specifically prevent this from happening.(49) The CSRA is designed to reach only those delinquent parents who have moved from the state in which their children reside and also have willfully failed to pay child support.(50) If both parents reside in the same state, the CSRA cannot be enforced against the wrongdoer."(51)

      Congress justified its intrusion into an area which had traditionally been the responsibility of state governments by pointing first to the seriousness of the problem,(52) and second to the states' reciprocal support statutes that "are simply bogged down and unable to perform with the efficiency [Congress] would like to see."(53) Although legislative history shows a concern about federalizing additional crimes, this concern was outweighed by the reasons above.(54) Congress viewed this law as helping the state, and as making certain that debts would be collected.(55)

   2. What Must the Government Prove?

      The CSRA, passed in October 1992, created a federal criminal offense for any willful(56) failure to pay past child support obligations to a child who resides in a different state than the parent.(57) However, the parent must owe more than $5000 or, alternatively, owe less than $5000 which has remained unpaid for more than a year.(58) A parent's first offense will result in a jail sentence of not more than six months or, alternatively, a fine.(59) However, the parent can be both fined and imprisoned.(60) For subsequent offenses, the offender can be jailed for up to two years, fined, or both.(61) Once convicted, the court must order restitution "in an amount equal to the past due support obligation as it exists at the time of sentencing."(62)

      The prerequisites for application of the CSRA are, with two notable exceptions, easily interpreted. The first exception is the requirement that the noncustodial parent live in a state different from...