Theoretical Bang and Practical Whimper? an Illustrative Analysis Based on Lower Court Treatment of the Child Support Recovery Act
Gottovi, Sara L., William and Mary Law Review
"When parents separate, children may suffer. Their suffering is ... often made much worse through the deliberate failure of a parent to comply with legally imposed child support obligations."(1) In the fall of 1992, Congress passed the Child Support Recovery Act(2) (the "Act" or CSRA) in an effort to end this suffering of children and their custodial parents at the hands of those who have become known as "deadbeat" parents.(3) The Act made willful failure by a noncustodial parent to pay child support for a child residing in another state a federal crime.(4)
In spite of good intention(5) and strong bipartisan support,(6) the Department of Justice made only nominal enforcement efforts until January of 1995,(7) at which time enforcement began in earnest in response to presidential interest and senatorial pressure.(8) Since January of 1995, 119 indictments have been handed down against violators of the Act.(9)
Increased enforcement displeased delinquent parents indicted under the Act and they quickly sought means by which to challenge their indictments. The deadbeats' hopes were fueled by United States v. Lopez,(10) then a Commerce Clause challenge pending before the Supreme Court.(11) The Court's decision in Lopez, announced in April of 1995,(12) threw a hurdle into the path of full enforcement of the Act. As a result of Lopez, CSRA-indicted parents quickly began to challenge the constitutionality of the Act on the basis that it impermissibly overextended Congress's power to legislate under the Commerce Clause.(13) As of this writing, several cases based on this claim have been decided at the district and circuit court levels, yielding inconsistent results.(14) Four district courts, when faced with the question of the constitutionality of the CSRA, determined that the Act was an unconstitutional overextension of Congress's commerce power under the Lopez analysis.(15) Two of those decisions have since been overturned by the Ninth Circuit Court of Appeals.(16) Eleven district courts reached the opposite conclusion and have upheld the constitutionality of the Act.(17) Two of those decisions have been affirmed in the circuit courts.(18) Another case was vacated for improper venue by a district court on appeal from a magistrate's initial ruling.(19) Though the circuits that have addressed the issue are in accord thus far,(20) lower court treatment of the constitutionality of the Act has been one of the few questions to split the courts since the Supreme Court handed down Lopez.(21) As the question of the Act's constitutionality has made its way through the federal courts, the bench has taken the opportunity to interpret the effect of Lopez on Congress's ability to legislate broadly under the commerce power in order to cure nationally recognized social ills.(22)
This Note examines the analytical framework that lower courts have applied to the question of the constitutionality of the CSRA and proffers, based on this analysis, that the much heralded Lopez decision, though arguably a theoretical resurgence of federalism, has had little practical effect in framing a new paradigm in the lower courts. First, to provide background and context for Lopez, this Note briefly reviews the history of Commerce Clause jurisprudence. The Note then examines the Lopez holding and analyzes its potential impact on the future of Commerce Clause cases. Next, this Note applies the Lopez principles to the CSRA and demonstrates why it is difficult to hold the Act to be unconstitutional under that analysis. Finally, this Note surveys the lessons learned from the lower courts' treatment to offer practical suggestions for invigorating Lopez's reinvigoration of federalism.
A BRIEF HISTORY OF COMMERCE CLAUSE JURISPRUDENCE
The United States Constitution created a government of enumerated powers.(23) That is, certain functions have been delegated to the federal government explicitly and those functions that have not been so assigned remain with the states through the Tenth Amendment. …