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Despite recent U.S. Supreme Court decisions limiting the scope of the Congressional power to regulate interstate commerce, a federal statute criminalizing the failure to pay child support payments across state lines remains good law, the 2nd U.S. Circuit Court of Appeals has ruled. Reversing a lower court’s dismissal of a prosecution under the Child Support Recovery Act of 1992, the 2nd Circuit, in United States v. King, 01-1141, found that the act, as amended, is constitutional. The decision will be published on Wednesday. Eric King, a resident of Texas, was indicted for failing to pay $300,000 in court-ordered child support payments to his wife in New York over an eight-year period. The indictment under the Child Support Recovery Act, as amended by the Deadbeat Parents Punishment Act of 1998, followed a civil settlement that King’s lawyers reached with the state of Texas on behalf of the New York Commissioner of Social Services. But when the government contended that the civil settlement had no effect on criminal prosecution under the act, King moved to dismiss the indictment before Southern District of New York Judge Robert W. Sweet. King contended that the 2nd Circuit decision finding that Congress could regulate child support under its Commerce Clause powers, United States v. Sage, 92 F.3d 1010 (1996), was no longer good law under a Supreme Court ruling in United States v. Morrison, 529 U.S. 598 (2000). There the high court held that Congress exceeded its authority under the Commerce Clause by enacting civil remedy provisions in the Violence Against Women Act because that act had no impact on interstate commerce. Judge Sweet in United States v. King agreed with King’s argument, saying that the high court’s Commerce Clause rationale in Morrison also applied to the Child Support Recovery Act, which he said did not affect matters of interstate commerce, and thus was unconstitutional. But on appeal, Senior Circuit Judge Joseph M. McLaughlin said that the Sage court held “that the child support debt is a ‘thing in interstate commerce’ and thus is a valid subject of Commerce Clause regulation.” Thus, Judge McLaughlin said, Judge Sweet was wrong when he found that the restrictive reading of the commerce power in Morrison rendered the holding in Sage invalid, and he also erred when he held that the Child Support Recovery Act was unconstitutional. Judge McLaughlin said that while the grant of authority to Congress under the Commerce Clause, Article I, � 8, Clause 3, is “undeniably broad,” the Supreme Court “has moved decisively” in recent years to “breathe vitality into the notion” that the power is not boundless. Judge McLaughlin said Sage “noted that the Supreme Court had previously struck down, on Commerce Clause grounds, state laws that frustrated contractual obligations.” “From there [in Sage] we reasoned that there was no constitutionally significant difference between a contractual obligation to send goods interstate and a court-ordered obligation to send money interstate,” Judge McLaughlin said. “Thus we held that Congress could regulate and criminalize conduct that frustrated fulfillment of those obligations pursuant to its power to regulate things in interstate commerce.” NARROW READING Judge McLaughlin said that Judge Sweet interpreted the ruling in Morrison too broadly, and that the 2nd Circuit, absent a change in the law directed by the Supreme Court, was “required to abide by the holding in Sage.” Judge McLaughlin said Supreme Court case law set a “tripartite framework” for Congressional power under the Commerce Clause, dictating that Congress may regulate not just those activities that have a “substantial” relation to interstate commerce, but also activities that involve the use of “channels” of interstate commerce and “the instrumentalities of interstate commerce, or persons or things in interstate commerce.” It cannot be “reasonably inferred from the U.S. Supreme Court’s discussions concerning the third ‘substantial effects’ category that regulations of obstructions of interstate commerce must be limited to that category,” he said. “That reality is fatal to King’s argument before us,” he said. “Nothing in Morrison, or any other Supreme Court case, undermines this court’s prior conclusion in Sage that the obligation to pay money across state lines is a thing in interstate commerce, and that the failure to meet such an obligation can be regulated and criminalized.” Senior Judge Richard J. Cardamone and Judge Rosemary S. Pooler joined in the opinion. Assistant U.S. Attorneys William C. Silverman and Peter G. Nieman represented the government. Richard A. Greenberg and Karl E. Pflanz of Newman & Greenberg and Kenneth E. Warner of Coblence & Warner in New York represented King.

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