Theoretical bang and practical whimper? An illustrative analysis based on lower court treatment of the Child Support Recovery Act.

Author:Gottovi, Sara L.
Position::Case Note

"When parents separate, children may suffer. Their suffering is ... often made much worse through the deliberate failure of a parent to comply with legally imposed child support obligations."(1) In the fall of 1992, Congress passed the Child Support Recovery Act(2) (the "Act" or CSRA) in an effort to end this suffering of children and their custodial parents at the hands of those who have become known as "deadbeat" parents.(3) The Act made willful failure by a noncustodial parent to pay child support for a child residing in another state a federal crime.(4)

In spite of good intention(5) and strong bipartisan support,(6) the Department of Justice made only nominal enforcement efforts until January of 1995,(7) at which time enforcement began in earnest in response to presidential interest and senatorial pressure.(8) Since January of 1995, 119 indictments have been handed down against violators of the Act.(9)

Increased enforcement displeased delinquent parents indicted under the Act and they quickly sought means by which to challenge their indictments. The deadbeats' hopes were fueled by United States v. Lopez,(10) then a Commerce Clause challenge pending before the Supreme Court.(11) The Court's decision in Lopez, announced in April of 1995,(12) threw a hurdle into the path of full enforcement of the Act. As a result of Lopez, CSRA-indicted parents quickly began to challenge the constitutionality of the Act on the basis that it impermissibly overextended Congress's power to legislate under the Commerce Clause.(13) As of this writing, several cases based on this claim have been decided at the district and circuit court levels, yielding inconsistent results.(14) Four district courts, when faced with the question of the constitutionality of the CSRA, determined that the Act was an unconstitutional overextension of Congress's commerce power under the Lopez analysis.(15) Two of those decisions have since been overturned by the Ninth Circuit Court of Appeals.(16) Eleven district courts reached the opposite conclusion and have upheld the constitutionality of the Act.(17) Two of those decisions have been affirmed in the circuit courts.(18) Another case was vacated for improper venue by a district court on appeal from a magistrate's initial ruling.(19) Though the circuits that have addressed the issue are in accord thus far,(20) lower court treatment of the constitutionality of the Act has been one of the few questions to split the courts since the Supreme Court handed down Lopez.(21) As the question of the Act's constitutionality has made its way through the federal courts, the bench has taken the opportunity to interpret the effect of Lopez on Congress's ability to legislate broadly under the commerce power in order to cure nationally recognized social ills.(22)

This Note examines the analytical framework that lower courts have applied to the question of the constitutionality of the CSRA and proffers, based on this analysis, that the much heralded Lopez decision, though arguably a theoretical resurgence of federalism, has had little practical effect in framing a new paradigm in the lower courts. First, to provide background and context for Lopez, this Note briefly reviews the history of Commerce Clause jurisprudence. The Note then examines the Lopez holding and analyzes its potential impact on the future of Commerce Clause cases. Next, this Note applies the Lopez principles to the CSRA and demonstrates why it is difficult to hold the Act to be unconstitutional under that analysis. Finally, this Note surveys the lessons learned from the lower courts' treatment to offer practical suggestions for invigorating Lopez's reinvigoration of federalism.


The United States Constitution created a government of enumerated powers.(23) That is, certain functions have been delegated to the federal government explicitly and those functions that have not been so assigned remain with the states through the Tenth Amendment.(24) The Commerce Clause explicitly enumerates a power that is assigned to the federal government rather than to the states.(25) The Commerce Clause delegates to Congress the "Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."(26) Because the Commerce Clause provides the federal government the ability to legislate in areas that otherwise would be reserved for the states, it has served as the jurisprudential backdrop for the federalism question throughout the nation's history; i.e., the Clause has served as the boundary line of federal government's sovereignty vis-a-vis the states.(27) This segment of the Note discusses the history of the debate over the appropriate breadth of the federal legislative power as framed by the Commerce Clause.

The Early Cases

The first Supreme Court case to address the Commerce Clause, Gibbons v. Ogden,(28) has been interpreted as providing the federal government with broad commerce power.(29) At issue in the case was whether New York could enact a law providing for exclusive steamship franchises for passage to New Jersey.(30) In Gibbons, Chief Justice Marshall defined commerce as "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."(31) Marshall considered the commerce power to be "complete in itself," limited only by its constitutional parameters.(32)

After Gibbons, the question of the scope of Congress's Commerce Clause-based authority did not return to the Court's attention for fifty years.(33) When the Commerce Clause did return to the Court's docket, the resulting rulings did not give Congress the plenary power that many have credited Gibbons with providing.(34) Rather, the Court read the Commerce Clause to constrain legislators within narrow parameters to prevent laws that intruded into intrastate activities.(35)

Between 1824 and 1937,(36) the Supreme Court placed Congress's power to legislate on the basis of the commerce power within rigid boundaries.(37) Congress could pass laws regulating commerce but could not regulate manufacturing.(38) It could regulated both the instrumentalities of interstate commerce(39) and goods travelling in interstate commerce.(40) Finally, Congress had the power to regulate activities that had a direct effect upon interstate commerce but not those activities with an indirect effect.(41) These distinctions existed to differentiate local intrastate commerce from national interstate commerce and to ensure that congressional regulation affected only commerce having an interstate component.(42)

The New Deal Expansion

The election of President Franklin Roosevelt and the development of the New Deal federal economic policies had an immeasurable impact on the development of Commerce Clause jurisprudence.(43) The narrow boundaries that had been established for permissible regulation of commerce expanded tremendously; what remained was a reading of the Commerce Clause that allowed Congress to regulate extensively in economic areas.(44) By 1942, the strict prohibition against Congress's regulation of intrastate commerce had eased considerably.(45) The Supreme Court, through a series of decisions that recognized the interstate effects of local economic events, granted Congress the power to regulate incidences of intrastate commerce that, in the aggregate, substantially affected interstate commerce.(46)

Modern Commerce Clause Jurisprudence

Commerce Clause jurisprudence expanded once again during the Civil Rights Era.(47) In the 1960s, Congress used its commerce power to enact laws that were social policies, not economic regulations.(48) For example, Title II of the Civil Rights Act of 1964, which prevents discrimination in places of public accommodation, was an exercise of Congress's commerce power.(49) Two cases decided by the Supreme Court in 1964, Heart of Atlanta Motel, Inc. v. United States(50) and Katzenbach v. McClung,(51) upheld the Civil Rights Act.(52) These decisions clearly reiterated both the substantial effects test and a standard of rational basis review for Commerce Clause-based legislation.(53) The Court, in later decisions, further clarified the breadth of Congress's commerce power, but the power has yet to be broadened further.(54)

Between 1964 and 1994, the Court held that a congressional act had exceeded the bounds of the Commerce Clause only once, and that case was overruled within ten years.(55) Cases were decided so consistently in favor of expansive congressional commerce power that commentators often considered any legislation passed under the Commerce Clause to be per se constitutional.(56) The Commerce Clause developed into the basis for a virtually unlimited congressional police power because any local activity, if considered in the aggregate, potentially could affect interstate commerce.(57) Nothing seemed beyond Congress's reach until the Court handed down Lopez.


The Supreme Court's decision in United States v. Lopez shattered the Commerce Clause's jurisprudential status quo.(58) Alphonso Lopez was convicted in the Western District of Texas for violating the Gun-Free School Zones Act of 1990, a federal criminal statute making it unlawful to possess a firearm within one thousand feet of a school.(59) On appeal of Lopez's conviction, the Fifth Circuit Court of Appeals held that, due to the total absence of congressional findings on the issue of the statute's nexus to interstate commerce and the court's inability to locate any reference to a commercial effect in the legislative history, the Gun-Free School Zones Act of 1990 was an unconstitutional overextension of Congress's legislative power.(60) In a similar case, the Ninth Circuit held that the Act was constitutional.(61) At this point, the issue was ripe for Supreme Court...

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