                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-1997

United States v. Parker
Precedential or Non-Precedential:

Docket 95-201




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Recommended Citation
"United States v. Parker" (1997). 1997 Decisions. Paper 53.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/53


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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                            No. 95-2018
                            ___________

          UNITED STATES OF AMERICA,
                         Appellant

                          vs.

          STEVEN PAUL PARKER
                           ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Crim. No. 95-cr-00352)
                           ___________

                              Argued
                         February 6, 1997
         Before:   STAPLETON and MANSMANN, Circuit Judges
                     and RESTANI, Judge.*

                       (Filed March 7, 1997)
                            ___________

Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Linda Dale Hoffa
Assistant United States Attorney
Robert A. Zauzmer (Argued)
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

          Counsel for Appellant


Steven A. Feldman, Esquire (Argued)
Feldman & Feldman
1200 Veterans Memorial Highway
Hauppauge, NY 11788

          Counsel for Appellee




                                  1
*         Honorable Jane A. Restani of the United States Court of
International Trade, sitting by designation.
                           ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,   Circuit Judge.

            This appeal from the dismissal of a criminal

information for failure to pay past-due child support presents a

question of first impression for us.    We must determine whether

enactment of the Child Support Recovery Act of 1992, 18 U.S.C. §

228 (1995) ("The Act") was within the power granted to Congress

under Article 1, Section 8, Clause 3 of the Constitution.

Because we are convinced that the Act was the product of a lawful

exercise of congressional power under the Commerce Clause and

does not transgress the Tenth Amendment, we find that the

district court erred in holding the Act unconstitutional.    We

will, therefore, reverse the order of the district court.



                                 I.

            On June 27, 1995, the United States Attorney for the

Eastern District of Pennsylvania filed a criminal information

alleging that Steven Paul Parker, a Florida resident, willfully

failed to pay a past-due child support obligation to his two

children in Pennsylvania in violation of the Child Support

Recovery Act of 1992, 18 U.S.C. § 228.1


1.          The Act provides in part, as follows:

(a) Offense -- Whoever willfully fails to pay a past due support
          obligation with respect to a child who resides in


                                 2
           On September 14, 1995, Parker moved to dismiss the

information, alleging that the Act is constitutionally infirm in

that it:   (1) falls outside the limits of the power granted to

Congress under the terms of the Commerce Clause; and (2)

impermissibly interferes with the states' ability to regulate

child support and criminal law, thereby undermining the doctrine

of federalism and violating the Tenth Amendment.   In an opinion

and order entered on October 30, 1995, the district court agreed

(..continued)
          another state shall be punished as provided in
          subsection (b).

(b) Punishment -- The punishment for an offense under this
          section is --

(1) in the case of a first offense under this section, a fine
               under this title, imprisonment for not more than 6
               months, or both; and

(2) in any other case, a fine under this title, imprisonment for
               not more than 2 years, or both.

(c)   Restitution -- Upon a conviction under this section, the
           court shall order restitution . . . in an amount equal
           to the past due support obligation as it exists at the
           time of sentencing.

(d)   Definitions -- As used in this section --

(1)   The term "past due support obligation" means 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 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.

28 U.S.C. § 228.



                                3
with Parker's arguments and dismissed the information.   This

timely appeal followed.

          We have jurisdiction pursuant to 18 U.S.C. § 3731.      Our

review of the district court's determination that the Act is

unconstitutional is plenary.   United States v. Rybar, 103 F.3d

273 (3d Cir. 1996).



                               II.

          Section 8 of Article I of the Constitution of the

United States provides that "The Congress shall have power . . .

 [t]o regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes. . . ."   The scope of

congressional power under this section has, until recently, been

interpreted to be virtually limitless.   The Commerce Clause

landscape changed, however, with the Supreme Court's decision in

United States v. Lopez, ___ U.S. ___, 115 S. Ct. 1624 (1995).

There, the Court for the first time in nearly sixty years

invalidated a statute as beyond the scope of the Commerce Clause.

 This apparent change in course has resulted in reexamination of

the Commerce Clause in a variety of contexts, as litigants

attempt to persuade the courts that Lopez has breathed new life
into statutory challenges that would, in other times, have been

rejected summarily.

          In Lopez, the Court considered the constitutionality of

the Gun Free School Zones Act of 1990.   This Act made it a



                                4
federal offense "for any individual knowingly to possess a

firearm at a place that the individual knows, or has reasonable

cause to believe, is a school zone."    18 U.S.C. § 922(q)(1)(A).

Evaluating the constitutionality of the statute, the Court

established that there are "three broad categories of activity

that Congress may regulate under its commerce power."    115 S. Ct.

at 1629.    Congress is authorized to "regulate the use of the

channels of interstate commerce", "regulate and protect the

instrumentalities of interstate commerce," and "regulate . . .

those activities that substantially affect interstate commerce."

Id.

            Because the Gun Free School Zone Act did not involve

"channels" or "instrumentalities" of interstate commerce, the

Court focused exclusively upon whether the regulated activity

substantially affected interstate commerce.    The Court concluded

that it did not, writing that the statute "by its terms has

nothing to do with `commerce' or any sort of economic enterprise,

however broadly one might define those terms."    Id. at 1630.   The

Court also found it significant that the statute did not contain

a jurisdictional element establishing a connection to interstate

commerce and that "[neither] the statute nor its legislative

history contained express congressional findings regarding the

effects upon interstate commerce of gun possession in a school

zone."     Id. at 1631.




                                 5
           Relying primarily on Lopez, the district court held the

Child Support Recovery Act unconstitutional, rejecting the

government's argument that the Act regulates an activity that

substantially affects interstate commerce and comprises a use of

the channels of interstate commerce.       Specifically the court

concluded that a willful failure to pay a court-ordered sum "has

simply nothing to do with commerce in the context of the limited

power given to the federal government and withheld from the

states in the Commerce Clause."       United States v. Parker, 911 F.

Supp. 830, 834 (E.D. Pa. 1995).       The court also held that the Act

did not regulate use of the channels of interstate commerce in

that it did not apply to "the shipping of goods or the movement

of persons in interstate commerce."      Id. at 842.   While we

recognize that the Supreme Court's decision in Lopez establishes

that there is, indeed, an outer limit to congressional authority

under the Commerce Clause, we do not agree with the district

court that enactment of the Child Support Recovery Act lies

beyond that limit.

           In United States v. Bishop, 66 F.3d 569, 577 (3d Cir.

1995), a post-Lopez decision, we defined our mandate in cases
challenging congressional authority under the Commerce Clause as

follows:   "Our job . . . is not to second-guess the legislative

judgment of Congress that [the regulated activity] substantially

affects interstate commerce, but rather to ensure that Congress

had a rational basis for that conclusion."       We clarified that the



                                  6
requisite rational basis may be supported by an Act's legislative

history and by the interstate elements of a crime.    We also

adopted a broad definition of commerce, rejecting the notion that

the Supreme Court in Lopez created a bright line rule

establishing that unless an activity is commercial or economic it

is beyond the reach of Congress under the Commerce Clause.      Even

"local activities may become the subject of national legislation

when they are found to be part of a national problem with a

substantial impact upon interstate commerce."    Id. at 584.

          In light of both the decision in Lopez and our own

precedent, we are convinced that the Child Support Recovery Act

falls within the scope of congressional authority under the

Commerce Clause as a valid regulation of activity having a

substantial effect upon interstate commerce.     In so holding we

align with our sister courts of appeals which have evaluated and

rejected constitutional challenges to the Act.     See United States

v. Hampshire, 95 F.3d 787 (10th Cir. 1996); United States v.

Mussari, 95 F.3d 999 (9th Cir. 1996); and United States v. Sage,

92 F.3d 101 (2d Cir. 1996).2   We find the reasoning articulated

2.        A majority of the district courts outside the Second,
Ninth, and Tenth Circuits which have considered challenges to the
Child Support Recovery Act have upheld the Act's
constitutionality. See United States v. Johnson, 940 F. Supp 911
(E.D. Va. 1996); United States v. Sims, 936 F. Supp. 817 (N.D.
Okla. 1996); United States v. Lewis, 936 F. Supp. 1093 (D. R.I.
1996); United States v. Ganapowski, 930 F. Supp. 1076 (M.D. Pa.
1996); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla.
1996); United States v. Bongiorno, Crim. No. 94-10178-REK, 1996
WL 208508 (D. Mass. Jan. 25, 1996); United States v. Hopper, 899
F. Supp. 389 (S.D. Ind. 1995); United States v. Murphy, 893 F.


                                 7
in these decisions to be persuasive and adopt it here.

Accordingly our analysis is brief.

          As we noted in Bishop, "we . . . must give substantial

deference to a Congressional determination that it had the power

to enact particular legislation."     66 F.3d at 576.   Several

factors convince us that the Child Support Recovery Act falls

within the line drawn by the Supreme Court in Lopez.     First, by

its terms, the Act is confined to interstate transactions; it

addresses the obligation of one parent to make payments in

interstate commerce for a child living in a different state.

These payments will normally move in interstate commerce by mail,

by wire, or by electronic transfer.

          The activity regulated by the Act falls within the

broad definition of commerce which we adopted in Bishop.      Failure

to make required payments gives rise to a debt which implicates

economic activity.   This is an instance where "local activities .

. . are . . . part of a national problem with a substantial

impact upon interstate commerce."    Id. at 584.    It is significant

that the legislative history underlying the Act establishes that

state efforts have been inadequate to ensure that payments owed

are actually made and that, as a result, annual obligations

covered by the Act total billions of dollars.      Finally, unlike

the statute the Court reviewed in Lopez, the Child Support
(..continued)
Supp. 614 (W.D. Va. 1995). But see United States v. Bailey, 902
F. Supp. 727 (W.D. Tex. 1995) (holding Act unconstitutional).



                                8
Recovery Act involves an unbroken chain of interstate events

which begins when one parent crosses state lines and ends with

interstate collection efforts.



                                 III.

          We also reject Parker's argument that the Child Support

Recovery Act undermines the doctrine of federalism and violates

the Tenth Amendment.   In light of our holding that the Act is the

product of a legitimate exercise of congressional authority under

the Commerce Clause, this argument fails.      "If Congress acts

under one of its enumerated powers -- here its power under the

Commerce Clause -- there can be no violation of the Tenth

Amendment."   United States v. Mussari, 95 F.3d at 791.     The Act

does not "threaten[] the existence or significance of the states

or interfere[] with the existence of their powers."       United

States v. Sage, 92 F.3d at 106.       "All the Act does is enable the

United States to help [the states] do what [they] could not do on

[their] own, namely enforce [the] obligation to send money from

one state to another."   Id. at 105.



                                 IV.

          Because we are convinced that the Child Support

Recovery Act was enacted pursuant to the authority granted to

Congress under Article 1, Section 8, Clause 3 of the Constitution




                                  9
and does not violate the terms of the Tenth Amendment, we will

reverse the order of the district court.




                               10
_________________________


TO THE CLERK:

          Please file the foregoing opinion.


                               _____________________________
                                   Circuit Judge




                               11
