Can the Feds Put Deadbeat Parents in Jail? A Look at the Constitutionality of the Child Support Recovery Act

I. Introduction Imagine receiving a letter from the U.S. Attorney's office saying the following: Dear Sir/Madam, you are delinquent in your child support payments and you must pay up or we will hunt you down, prosecute you and throw you in jail.(1) Should you take it seriously and pay every last penny? Should you ignore it because you know from past experience that, even if you are found, it is highly unlikely that you will be forced to pay?(2) Perhaps you should take the approach of some deadbeat(3) parents who received such a letter and not only refuse to pay, but claim that the federal government has no right to intrude in this domestic relations matter.(4) In 1992 Congress passed the Child Support Recovery Act (CSRA)(5) which allows the federal government to jail parents who have fallen behind in their child support payments.(6) Prior to this legislation, state law alone governed criminal nonpayment of child support.(7) This Note explores the reasons and motivation behind the federalization of nonpayment of child support and its constitutional implications. Part I of this Note will provide a brief overview of the history of federal child support legislation, focusing specifically on interstate enforcement of child support orders. Part II will focus on the CSRA and its legislative purpose, history, and enforcement procedures, as well as the extent to which the CSRA is accomplishing the goals envisioned by Congress. Part III will look at the constitutional extent of federal power under the Commerce Clause by examining United States v. Lopez,(8) the first case in sixty years in which the Supreme Court held that Congress exceeded its power under the Commerce Clause.(9) Subsequent district court cases addressing the constitutionality of the CSRA in light of Lopez will be discussed in Part IV, thus highlighting the present split among the courts on this issue. In conclusion, Part V will discuss the future of the CSRA and will include the author's predictions concerning whether the CSRA will survive Lopez. Since this constitutional debate centers around such a personal and volatile issue, numerous questions and concerns arise. Does Congress automatically avoid the constitutional question because the magic words with respect to a child who lives in another State,(10) are in the statute? Did the framers of the Constitution intend that Congress could, by the simple inclusion of interstate language somewhere within the text of a statute, immunize a statute from constitutional challenge? Can Congress enact such legislation or has Congress intruded into areas that should be regulated by the states? This Note attempts to answer these questions by examining not only the Commerce Clause, but also by looking at the Tenth Amendment's role in the analysis. II. History of the Federal Enforcement of Child Support A. Title IV-A Prior to 1935, the federal government did not play a role in child support programs.(11) It was not until the passage of Title IV-A of the Social Security Act of 1935(12) that federal money was given to the states to support children whose fathers were deceased or disabled.(13) The federal government took responsibility for these children by providing financial assistance.(14) After enacting Title IV-A, Congress paid little attention to child support programs, allowing the states to administer their own programs. When the number of children on welfare began to overburden the public purse,(15) Congress decided it was time to expand the federal role in child support collection. B. Child Support Enforcement Amendments The combination of taxpayer responsibility for increasing welfare rolls(16) and the states' ineffective child support programs(17) inspired Congress to enact Title IV-D in 1974 to help collect support payments from parents.(18) Title IV-D established a federal Office of Child Support Enforcement (OCSE) and demanded compulsory participation by the states. …