In United States v. Kukafka, No. 05-1955 (3d Cir. Mar. 6, 2007), defendant was found guilty of two counts of failure to make child support payments in violation of 18 U.S.C. §228(a)(1) and (3). Kukafka argued that the Child Support Recovery Act of 1992, as amended by the Deadbeat Parents Punishment Act of 1998, ("the Act"), exceeds the scope of Congress’s power under the Commerce Clause and violates the Tenth Amendment of the U.S. Constitution.
The Third Circuit previously held the Deadbeat Parents Punishment Act constitutional in United States v. Parker, finding that failure to pay child support is a local activity which is part of a national economic problem "substantially affecting interstate commerce," fitting within the third category of activity that Congress may regulate as identified in United States v. Lopez. Kukafka argued that Parker was overruled by United States v. Morrison, in which the Supreme Court struck down portions of the Violence Against Women Act. Morrison held that Congress could not regulate non-economic conduct "based solely on that conduct’s aggregate effect on interstate commerce." The Morrison framework for determining whether a law regulates an activity that has a substantial effect on interstate commerce looks at four factors: (1) the economic nature of the regulated activity, (2) a jurisdictional element to limit the law’s reach, (3) the existence of express congressional findings regarding the effect on interstate commerce, and (4) the link between the activity and interstate commerce. Based upon these factors, the Third Circuit held that the Act regulates an activity with a substantial effect on interstate commerce, it is economic in nature with an explicit jurisdictional element and followed extensive legislative findings about its effect on interstate commerce. The Act therefore falls within Congress’s power under the third Lopez category.
The court went on to find that the Act also falls under the second Lopez category, regulation of persons or things in interstate commerce. Child support payments are "things" in interstate commerce because they are normally transmitted through instrumentalities of interstate commerce and the "persons" targeted by the act are those who intentionally avoid payment by travelling across state lines.