                                 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.

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