The opinion of the court was delivered by: PRESKA
LORETTA A. PRESKA, United States District Judge:
Defendant Jeffrey Nichols has been charged by Criminal Information with violating the Child Support Recovery Act of 1992, 18 U.S.C. § 228, Pub. L. No. 102-521, § 2(a), 106 Stat. 3403 (October 25, 1992) ("CSRA"). Defendant now moves to dismiss the Information, arguing that CSRA exceeds Congressional authority under the Commerce Clause, that it violates the Tenth Amendment and the basic principles of federalism and comity, that it should be void for vagueness, and that it violates the Equal Protection Clause. Alternatively, the defendant argues that the abstention doctrine applies here and I should decline to decide this case.
After considering each of defendant's arguments and the government's opposition, I find that the CSRA is constitutional, and the motion is therefore denied.
The essential facts of this case are not disputed. The Information charges that Nichols, from October of 1992 to August of 1995, "failed to pay a past due child support obligation, determined under a court order pursuant to the law of a State to be due from him for the support and maintenance of a child and that has remained unpaid for a period longer than one year and is greater than $ 5,000." Specifically, Nichols is charged with failing to pay over $ 500,000 in child support for three children living in New York while he lived in Florida and, currently, in Vermont.
The underlying complaint, filed on July 25, 1995, and the defendant's affirmation in support of this motion, elaborate on the circumstances leading to the Information. Defendant and his wife Marilyn Kane Nichols were married in 1969. The couple had three children. Their relationship deteriorated, however, to the point that May of 1990, Nichols was found in contempt by the Supreme Court of the State of New York for failing to pay $ 68,319 in previously court-ordered child support. In August of 1990, the state court granted Mrs. Nichols a divorce on the grounds of abandonment and awarded her custody of the children. Nichols, living out-of-state, did not appear for the trial. He was ordered to pay $ 9,362.82 per month in child support until the eldest child reached the age of twenty-one, then $ 8,071 until the second child reached the same age, then $ 5,488 until the youngest reached twenty-one.
None of this support had been paid by 1993, when Mrs. Nichols sought to enforce the New York judgment in Florida, where her ex-husband was residing. The state court in Florida found Nichols to be approximately $ 400,000 in arrears in his payment of child and spousal support. He was ordered to pay $ 8,071 in monthly child support and $ 1,814 per month towards arrears. In 1994, when no child support had been paid, Mrs. Nichols sought enforcement of the New York judgment in Vermont, where Nichols had moved. The state court in Vermont found that Nichols was over half-a-million dollars in arrears in child support payments as of December 12, 1994.
On August 8, 1995, pursuant to a warrant issued in the Southern District of New York as part of the present prosecution, Nichols was arrested in Vermont by agents of the F.B.I. and brought here. Released after posting a $ 500,000 bond, secured by $ 10,000 cash and his Vermont home, Nichols was then arrested by the New York County sheriff and brought before the state court, where his contempt citation was still outstanding. Nichols was jailed until he both paid the $ 68,319 in child support still due under the court's previous order and agreed to a plan for payment of the remaining arrears. On December 7, 1995, after entering a comprehensive settlement agreement with his former wife, Nichols was released.
The one-count Criminal Information now at issue was filed on December 12, 1995. Defendant was arraigned before a Magistrate Judge and first appeared before me on December 20, when he entered a plea of not guilty. The present motion followed.
Section 228 of Title 18 reads in part
§ 228. Failure to pay legal child support obligations (a) Offense. --Whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b). . . . The term "past due support obligation" means an 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; . . . .
I. The Commerce Clause Challenge
Defendant's strongest argument to dismiss the Information is that, in enacting the CSRA, Congress exceeded its authority under the Commerce Clause. In making this argument, he relies almost exclusively on the Supreme Court's recent decision in United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995). The argument is not novel; since Lopez, no fewer than eleven district courts have addressed Commerce Clause challenges to the CSRA. Four of these challenges (two were companion cases) were successful: United States v. Parker, 911 F. Supp. 830 (E.D. Pa. Oct. 30, 1995); United States v. Bailey, 902 F. Supp. 727 (W.D. Tex. Oct. 25, 1995); United States v. Mussari, 894 F. Supp. 1360 (D. Ariz. July 26, 1995), recon. denied, 912 F. Supp. 1248 (Oct. 25, 1995); United States v. Schroeder, 894 F. Supp. 360 (D. Ariz. July 26, 1995) (companion case to Mussari), recon. denied, 912 F. Supp. 1240 (Oct. 25, 1995); eight failed: United States v. Collins, 921 F. Supp. 1028, 1996 WL 189727 (W.D.N.Y. 1996); United States v. Billy Ray Sims, 95-Cr-125 (N.D. Ok. Feb. 22, 1996); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla. Feb. 13, 1996); United States v. Wilson, No. 4:95-MG-3026 (N.D. Ohio, Nov. 7, 1995) (slip op.); United States v. Sage, 906 F. Supp. 84 (D. Conn. 1995); United States v. Hopper, 899 F. Supp. 389 (S.D. Ind. Sept. 28, 1995); United States v. Murphy, 893 F. Supp. 614 (W.D. Va. July 18, 1995); United States v. Hampshire, 892 F. Supp. 1327 (D. Kan. June 14, 1995).
The Commerce Clause of the United States Constitution gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. Like the "living Constitution" of which it is a part, the history of the Commerce Clause reflects a complex and evolving relationship between the Federal and State governments, a relationship that is a hallmark of our system of government. See generally, Gregory v. Ashcroft, 501 U.S. 452, 457-59, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991). As with other relationships of fundamental and enduring importance, Constitutional and otherwise, and by the design of the Framers of the Constitution,
the Federal-State relationship defies a precise definition or formula, leaving courts and lawmakers with the benefit and the burden of constantly testing and reassessing its parameters under the changing pressures of our Nation's history.
Lopez, 115 S. Ct. at 1633-34. It is the very elasticity of the relationship which has allowed it to endure these pressures.
The expansive nature of Congress's power under the Commerce Clause was first recognized by the Supreme Court, through the voice of Chief Justice Marshall, in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824). Commerce power is "power to regulate . . . to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution." Id. at 196. The most immediate prescribed limitation lies in the language of the clause itself, which reaches only commerce "among the several States" and leaves the "exclusively internal commerce of a State" beyond Congress's regulatory grasp. Id. at 195.
What the Court in Lopez called the "modern era" of Commerce Clause jurisprudence began with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937). The cases which followed Jones & Laughlin, including United States v. Darby, 312 U.S. 100, 85 L. Ed. 609, 61 S. Ct. 451 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110, 86 L. Ed. 726, 62 S. Ct. 523 (1942), and Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942), greatly expanded Congress's Commerce Clause power, particularly in its ability to regulate even local activities so long as they had a sufficient impact on interstate commerce. See New York v. United States, 505 U.S. 144, 158, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992) ("As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress' commerce power."). This doctrinal shift "reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce." Lopez, 115 S. Ct. at 1628.
The Lopez decision, relied on by defendant, has received great attention from courts, commentators, and hopeful defendants because, for the first time in the modern era, the Supreme Court struck down a law passed by Congress pursuant to its Commerce Clause powers, declaring the law an unconstitutional intrusion by the Federal government into a matter reserved to the State. See United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 499 (2d Cir. 1995) (Lopez "revealed the Court's willingness to give serious and renewed thought to issues of federalism at the foundation of our constitutional system"). Defendant argues that a similar intrusion has occurred here. I disagree. See United States v. Genao, 79 F.3d 1333, 1337 (2d Cir. 1996) ("Because we find the statute at issue here to be different from that at issue in Lopez in ways that make the rationale of that decision inapplicable, we reject [defendant's] Commerce Clause challenge." see also Lopez, 115 S. Ct. at 1634 (Lopez is a "necessary though limited holding") (Kennedy, J., concurring).
The majority in this 5-4 decision found that, in 18 U.S.C. § 922, Congress's reach exceeded its grasp. It did so on three primary bases. First, the Court found that § 922 "by its own terms has nothing to do with 'commerce' or any sort of economic enterprise however broadly one might define those terms." Lopez, 115 S. Ct. at 1630-31 (footnote omitted). Nor was § 922 "an essential part of a larger regulation of economic activity" and therefore it could not be assessed in terms of an aggregate effect on interstate commerce. Id. at 1631. Second, the Court found that § 922 "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." A "jurisdictional element" is that part of a statute that requires some nexus between the regulated activity and interstate commerce, thereby limiting federal regulation to activities which "have an explicit connection with or effect on interstate commerce." Id. Third, the Court found that Congress, although not required to do so, had not supported passage of § 922 with "formal findings as to the substantial burdens that [the regulated] activity has on interstate commerce," which findings could help the Court "evaluate the legislative judgment" that such substantial effect did exist. Id. at 1361-62 (citations omitted).
It is in directly refuting the government's argumentation that the majority reveals its underlying constitutional justification for striking down the School Zones Act, however laudable the goals of that legislation. The government had argued, in what the Court labeled "costs of crime" reasoning, that possession of a firearm in a school zone could result in violent crime which would in turn have a dual effect on interstate commerce: (1) the substantial costs of violent crime would eventually be spread throughout the population through increased insurance costs, and (2) violent crime discourages travel into those areas of the nation in which it thrives. Id. at 1362. In what the Court called "national productivity" reasoning, the government also argued that the possession of guns in and around schools would seriously undermine the education process and destroy the learning environment, resulting in less well-educated, less well-prepared students, and therefore less productive citizens, and by extension a less productive national economy. Id. at 1362.
Although embraced by the dissenters, see id. at 1657-71 (Breyer, J., dissenting), these arguments were found by the majority to excuse -- in direct contradiction to constitutional restraint on the authority of the Federal government -- a general Federal police power. "Cost of crime" reasoning would allow Congress to regulate all activities that might lead to violent crime, however tenuous the connection; "national productivity" reasoning would have a similar spiralling effect, allowing regulation of any activity related to the economic productivity of the citizenry. Id. at 1632. "If we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without the power to regulate." Id. at 1632. Throughout its history, perhaps the one constant in the Supreme Court's interpretation of the Commerce Clause has been its insistence that it does not give Congress unfettered discretion to regulate within the States. This restriction was recognized by Justice Marshall in Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 195 ("the enumeration [e.g., regulation of commerce among the States] presupposes something not enumerated [e.g., no regulation of exclusively internal commerce]"), was reiterated throughout the early part of this century, see, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548, 79 L. Ed. 1570, 55 S. Ct. 837 (1935) (enforcing a since-abandoned distinction between direct (subject to regulation) and indirect (not subject) effects on interstate commerce and stating that without such distinction "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government"), and has continued to be recognized right through the most expansive jurisprudence of the clause's modern era, see, e.g., Jones & Laughlin, 301 U.S. at 37 (the scope of interstate power "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"). Looking to the outer limits of Commerce Clause power as discussed in Ogden and Jones & Laughlin, the Lopez Court found them overstepped by the School Zones Act. "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Lopez, 115 S. Ct. at 1634.
B. Constitutionality and Standard of Review
In a second hallmark of our system of government, taking the measure of the outer limits of congressional power is a role reserved to the courts. See Lopez, 115 S. Ct. at 1633; Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177, 2 L. Ed. 60 (1803) (Marshall, C.J.) (it is for the Courts "to say what the law is"). The importance of this judicial role has been well-established in the area of Commerce Clause jurisprudence. See, e.g., Maryland v. Wirtz, 392 U.S. 183, 196-97, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968) (however broad the power conferred on Congress by the Commerce Clause, it is for the Court to determine when limits on that power are exceeded). Before discussing why the CSRA, in contrast to the Gun-Free School Zones Act, falls safely on the constitutional side of those limits, it is important first to set out the proper standard of judicial review.
A reviewing court must presume the constitutionality of the challenged statute. See Walters v. National Ass'n of Radiation Survivors, 468 U.S. 1323, 1324, 82 L. Ed. 2d 908, 105 S. Ct. 11 (1984). Although by no means immune from meaningful review, legislation should not be invalidated on the basis of judicial second-guessing of congressional policy decisions, FCC v. Beach Comm., Inc., 508 U.S. 307, 313-14, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993) (deference to rationally based legislative judgments "is a paradigm of judicial restraint").
As acknowledged in Lopez, the role of the reviewing court is a narrow one. A reviewing court is constrained to deciding "whether a rational basis existed for [Congress's] concluding that a regulated activity sufficiently affected interstate commerce." Lopez, 115 S. Ct. at 1629; see Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981) (a congressional judgment that there is substantial interstate nexus must be deferred to "if there is any rational basis for such a finding"). In Katzenbach v. McClung, 379 U.S. 294, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964), which upheld Congress's authority under the Commerce Clause to prohibit racial discrimination in restaurants, the Court wrote that "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Katzenbach, 379 U.S. at 303-04. This modest standard reflects judicial "respect for the institutional competence of Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices." Lopez, 115 S. Ct. at 1651-52 (Souter, J., dissenting); see Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 196-97.