dissenting.
Because my view of the Commerce Clause fundamentally differs from that of the majority, I respectfully dissent. In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the Supreme Court made clear that some matters are simply outside of the scope of congressional regulation under the Commerce Clause. I .think that criminalizing the failure to pay child support pursuant to a state court order is one of those matters. In the original panel decision, we noted that the Framers of our Constitution drafted the Interstate Commerce Clause, not the Interstate Clause. The majority’s construction renders the commerce component meaningless. Such a reading violates the intent of the Framers, and transforms the Commerce Clause — a measure drafted to prevent state interference in the economic affairs of the nation — into a virtually limitless federal police power, contrary to the Supreme Court’s recent holdings in Lopez and Morrison.
In determining the scope of congressional power under the Commerce Clause, a brief review of the historical roots of this power is instructive. As the Supreme Court has noted, “The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was ‘to take into consideration the trade of the United States; to examine the relative situations and trade of the said states; to consider how far a uniform system in their commercial regulation may be necessary to their common interest and their permanent harmony.’ Documents, Formation of the Union, 12 H. Docs., 69th Cong., 1st Sess., p. 38.” H.P. Hood, & Sons, Inc. v. Du Mond, 336 U.S. 525, 533, 69 S.Ct. 657, *49593 L.Ed. 865 (1949). James Madison, chief architect of our federal system, stated that the Union required a power to regulate commercial activity, because “want of a general power over Commerce led to an exercise of this power separately, by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations.” 3 The Records of the Federal Convention 547 (Max Farrand ed., 1966).
This power to prevent states from establishing parochial barriers to national trade, and the resulting injuries to the national economic health, was “so universally assumed to be necessary, no other state power was so readily relinquished.” H.P. Hood & Sons, Inc., 336 U.S. at 534, 69 S.Ct. 657. Justice Jackson noted this need for uniformity as the Framer’s primary objective and recognized their intent to limit the commerce power to the protection of the free flow of commerce commenting, “[tjhere was no desire to authorize federal interference with social conditions or legal institutions of the states.” Id. In fact, the arguments made in favor of the Constitution’s ratification generally, and the Commerce Clause specifically, highlighted the need for a federal commerce power in order to navigate successfully the rough waters of the developing Transatlantic economy. So vital was this American common market to the former colonies’ participation in international trade, that constitutional supporters exhorted:
[Tjhere is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of [a federal commerce power] has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest.
The Federalist, No. 22, at 144 (Alexander Hamilton) (Clinton Rossiten ed., 1961).
Hamilton also highlighted the need for a federal commerce power to check the mer-cantilist and imperialist aims of European maritime powers, writing “[t]hose of them which have colonies in America look forward to what1 this country is capable of becoming with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States.... ” The Federalist, No. 11, at 85 (Alexander Hamilton) (Clinton Rossiten ed., 1961).
The most widely accepted general description of commerce, and the one cited by the majority, is given in Gibbons v. Ogden: “Commerce, undoubtedly, is traffic, but it is something more — it is intercourse. It describes the commercial intercourse between nations, and parts of nations in all its branches.... ” Gibbons, 22 U.S. (9 Wheat.) 1, 189-90, 6 L.Ed. 23 (1824). However, as Judge Jerry Smith has pointed out, “intercourse” has as its distinguishing feature a notion of reciprocity. United States v. Bailey, 115 F.3d 1222, 1236 (5th Cir.1997) (Smith, J., dissenting); see also Webster’s New World Dictionary of the American Language 733, 734 (2d ed.1972) (defining intercourse as “communication or dealings between or among people, countries, etc.: interchange *496of products, services, ideas, feelings, etc.,” and interchange as “to give and take mutually; exchange ... to put (each of two things) in the other’s place.... ”). This element of reciprocity — the mutual exchange of value motivated by economic self-interest — defines the marketplace which fosters social wealth. See Michael Klausner, Corporations, Corporate Law, and Networks of Contracts, 81 Va. L. Rev 757, 771 (1995) (noting the basic precept of welfare economics that competitive market forces optimize social wealth). And it is the wealth-creating aspect of markets that justifies a national commerce power in our federal system; as the Supreme Court reminds us, the “overriding requirement” of the Commerce Clause is a national common market. Hunt v. Washington State Adver. Comm’n, 432 U.S. 338, 350, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see also Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 803, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976) (noting “the premise, well established by the history of the Commerce Clause, that this nation is a common market”).
The failure to obey a state court order, of course, lacks this essential feature of reciprocity. This is so even where the order mandates a transfer of wealth, as do child support orders. “[Pjayment of child support is not conditioned on the performance of a reciprocal duty by the obligee, nor does it benefit the obligor.” Bailey, 115 F.3d at 1236 (Smith, J., dissenting). Due to this unilateral, redistributive character, support obligations can influence the “national common market” only at the margins, if at all. Indeed, the right to support payments is not freely alienable and, in some instances, the payments must be made to the state rather than directly to the ultimate beneficiary, further depriving these payments of the potential to affect the market. See, e.g., Mich. Comp. Laws Ann. § 552.452 (West 2001) (providing for payment of support to the office of the Michigan friend of the court). Because of their nature, court-ordered wealth transfers to or from Michigan residents are not per se a fit object of the federal commerce power.
The majority seeks to “put to rest” the notion that interstate commerce requires reciprocity, attributing to this dissent the premise that because payment of a debt is not reciprocal, it is not subject to Congress’s commerce power. The majority next cites United States v. Simpson, 252 U.S. 465, 40 S.Ct. 364, 64 L.Ed. 665 (1920), Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913), and Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. (6 Otto.) 1, 24 L.Ed. 708 (1877), for the proposition that the mere transport of people or information across state lines gives Congress authority to regulate them. The majority then reasons that a debt, or the support order enforcing it, is a “thing” in interstate commerce and therefore subject to congressional regulation. But although debts are typically reciprocal in the sense that payment is being sought for something of value given earlier, it does not follow that all debts are commercial in nature, such that they are properly the subject of the commerce power.1 And the cases cited by the majority do not deal with Congress’s authority to regulate “things” in interstate commerce. Neither do these cases hold that commerce need not involve an element of reciprocity. Rather, these cases deal with regulating the channels of interstate commerce by *497keeping them open and free from immoral uses.
The CSRA does not regulate within any of the categories permitted by Lopez, namely, the channels of interstate commerce, things that travel in these channels, or intrastate activity that substantially affects commerce. Rather, the Act regulates, through the imposition of criminal sanctions, obligations owed by one family member to another, using diversity of residence as a jurisdictional “hook.” This is particularly troubling because the states possess primary authority for defining and enforcing both the criminal law and the law of domestic relations. As Thomas Jefferson wrote:
[T]he Constitution of the United States, having delegated to Congress the power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore ... all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution, [ ] are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right appertains solely and exclusively to the respective States, each within its own territory.
Kentucky Resolutions, 2d Resolved cl. (1798), reprinted in The Portable Thomas Jefferson 281, 282 (Merrill Peterson ed., 1979); see also Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (stating that “preventing and dealing with crime is much more the business of the States than it is of the Federal Government”). In a like vein, the courts have consistently recognized that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not the laws of the United States.” Ex parte Burras, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890); see also Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (stating that the “regulation of domestic relations ... has long been regarded as a virtually exclusive province of the States”); cf. Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (recognizing a domestic relations exception to the diversity jurisdiction of federal courts in view of long-held understandings and sound policy considerations).
In Lopez, the Supreme Court addressed the reach of Congress’s commerce power. The Court struck down the Gun Free School Zones Act, 18 U.S.C. § 922(q)(l)(A) (1994), which prohibited “ ‘any individual knowingly to possess a firearm at a place [he] knows ... is a school zone,’ ” as an unconstitutional exercise óf Congress’s power under the Commerce Clause. Lopez, 514 U.S. at 551, 115 S.Ct. 1624. That power, the Court observed, extends to only three types of activity: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) those activities having a substantial relation to interstate commerce, namely, those activities that substantially affect interstate commerce. Id. at 558-59, 115 S.Ct. 1624. Since § 922(q)(l)(A) did not involve channels or instrumentalities of interstate commerce, the Court reasoned that the statute would be constitutional only if it qualified under the third category, as a statute that regu*498lated an activity which substantially affected interstate commerce. Id. at 559, 115 S.Ct. 1624.
In considering that question, the Court recognized that its case law had not always been clear as to whether an activity must “affect” or “substantially affect” interstate commerce. The Court then explained that “consistent with the great weight of our case law ... the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce.” Id. Having clarified that point, the Court concluded that several critical factors prevented § 922(q)(l)(A) from qualifying as a valid exercise of congressional authority under the third category. First, since § 922(q)(l)(A) did not regulate a commercial activity, the statute could not be upheld as regulating “activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Id. at 561, 115 S.Ct. 1624. Further, the statute contained no “jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce.” Id. Finally, the statute was not supported by specific “congressional findings [that] would enable [the Court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Id. at 563,115 S.Ct. 1624.
The majority in the case before us today says that the CSRA falls within category I, and perhaps category II, of Lopez. Because payment of child support on behalf of an out-of-state child will normally require the use of channels of interstate commerce, the majority argues, the CSRA is constitutional under the first Lopez category. See also United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.1997). The majority apparently also embraces the thesis that likens child support obligations to interstate debts or contracts, and asserts that Congress’s authority to prevent obstruction of interstate commerce empowers it to criminalize nonpayment of such obligations. See United States v. Bongiorno, 106 F.3d 1027, 1032 (1st Cir.1997); United States v. Sage, 92 F.3d 101, 105-06 (2d Cir.1996). The majority also suggests that because the obligations covered by the CSRA, in the aggregate, total billions of dollars, the Act might pass muster under Lopez as a regulation of an intrastate activity that substantially affects interstate commerce. See, e.g., United States v. Parker, 108 F.3d 28, 30-31 (3d Cir.1997). Any of these theories,2 however, would permit *499the creation of a federal law of ordinary private debt, whenever one party moved out of state after the debt was created. For the reasons set forth below, these arguments are unpersuasive.
I admit to some confusion with respect to the notion that the CSRA regulates the use of the channels of interstate commerce. The term “channel of interstate commerce” refers to, inter alia, “navigable rivers, lakes, and canals of the United States; the interstate railroad track system; the interstate highway system; ... interstate telephone and telegraph lines; air traffic routes; television and radio broadcast frequencies.” Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir.2000) (alteration in original) (internal quotation marks omitted). Congress has broad authority with respect to these channels; not only may the Legislature regulate them directly, it may act to keep them “free from immoral and injurious uses.” Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61 L.Ed. 442 (1917). But Congress does not act pursuant to this authority when it regulates an activity that merely “implicates” or “invokes” the use of the channels of interstate commerce. Cf. Bailey, 115 F.3d at 1227. Thus, this court held in United States v. Abdullah that the ban on trafficking in contraband cigarettes found at 18 U.S.C. §§ 2341-46 does not fall within the first Lopez category because the purpose of the ban is not “to keep open the very avenues by which interstate commerce is transacted.” United States v. Abdullah, 162 F.3d 897, 901 (6th Cir.1998). Indeed, to hold otherwise would be to collapse the first and second Lopez categories; any regulation of a thing in interstate commerce would necessarily be a regulation of the use of the channels of interstate commerce. The failure to place a payment in the channels of interstate commerce does not corrupt those channels, put them to immoral uses, or in any way threaten to close or impede them. Assuming that the Supreme Court did not idly draw the distinctions that it did, I cannot agree that the CSRA regulates the channels of interstate commerce merely by criminalizing the failure to make support payments which, if made, would normally enter the flow of interstate commerce.
Similarly unpersuasive is the argument that the CSRA regulates a thing in interstate commerce. This contention relies on an analogy between child support obligations and interstate debts, and on the further supposition that Congress may compel payment of debts through its power to prevent obstruction of interstate commerce. Accepting for the moment the rickety analogy between support obligations and debts, (although, as noted above, I do not believe support obligations in fact have any commercial character at all) I know of no case that holds that Congress has plenary authority to regulate a debt merely because the obligor and obligee reside in different states. This theory relies upon such pre-Lopez cases as Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921), and Allenberg Cotton Co. v. Pitt*500man, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974). In these cases, the parties executed contracts for the sale of goods that were to be performed within the territorial limits of a particular state, but which contemplated that the goods would enter the flow of interstate commerce. When these contracts were breached, the defendants asserted as a defense state laws prescribing conditions on which foreign corporations might do business in the state in which the contract was to be performed. The Supreme Court held that these business qualification laws, as applied, violated the Dormant Commerce Clause, saying “we think the transaction was in interstate commerce.” Dahnke-Walker, 257 U.S. at 292, 42 S.Ct. 106. Tempting though it may be to apply this snippet in an analysis under Lopez’s second category, the Supreme Court itself has acknowledged that the clear import of Dahnke-Walker and Allenberg Cotton is that a state has no power “to prevent an engagement in interstate commerce within her limits, except by her leave.” Sonneborn Bros. v. Cureton, 262 U.S. 506, 514, 43 S.Ct. 643, 67 L.Ed. 1095 (1923). These cases support the traditional view that the federal power to regulate commerce prevents states from impeding the flow of goods and services across state lines, and in no way suggest that the federal legislature has regulatory jurisdiction with respect to the conduct of contracting parties on the basis of mere diversity of residency. See United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 545, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944) (emphasizing that legal formulae devised to assess state power cannot “uncritically be accepted as trustworthy guides to determine Congressional power under the Commerce Clause”).
Even if they did so suggest, still another obstacle stands in the way of the hypothesis that the CSRA regulates a “thing in interstate commerce.” Simply put, defendants in CSRA cases do not put something into the flow of interstate commerce; rather, they are being prosecuted for failing to do so. It has been argued that this failure amounts to an “obstruction” of interstate commerce, which Congress has authority to prevent. See, e.g., United States v. Mussari, 95 F.3d 787, 790 (9th Cir.1996). I agree that Congress has power to remove impediments to interstate commerce. Thus, Congress may prohibit racial discrimination that obstructs the flow of interstate commerce, see Heart of Atlanta Motel v. United States, 379 U.S. 241, 253, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (upholding the Civil Rights Act of 1964), prohibit violent actions that interfere with interstate commerce, see United States v. Green, 350 U.S. 415, 420, 76 S.Ct. 522, 100 L.Ed. 494 (1956) (upholding the Hobbs Act), and prohibit restraints of trade that obstruct interstate commerce, see Standard Oil Co. v. United States, 221 U.S. 1, 68, 31 S.Ct. 502, 55 L.Ed. 619 (1911) (upholding the Sherman Act). But this line of cases deals with active obstruction of the flow of interstate commerce; it does not stand for the more radical proposition that Congress is empowered to regulate the passive failure of individuals to engage in interstate commerce. See Bailey, 115 F.3d at 1239 n. 15 (Smith, J., dissenting). More importantly, the obstruction argument conflates the Lopez categories. A prohibition on obstruction of commerce does not regulate “a thing” in commerce, nor does obstruction constitute a “use” of the channels of interstate commerce under the common meaning of “use”. Id. Rather, Congress has authority to prohibit activities that interfere with commerce because those activities, taken in the aggregate, substantially affect commerce. The CSRA must therefore stand or fall, like the Gun Free School Zones *501Act, as a regulation under Lopez’s final category.
Most significantly, by effectively predicating jurisdiction on mere diversity of residency, the Act “regulates every interstate obligation, without exception.” Bailey, 115 F.3d at 1238 (Smith, J., dissenting). But, as I have already shown, child support obligations are not commercial in character. In the absence of a mechanism that would link particular support obligations to some sort of economic enterprise, sustaining the constitutionality of the CSRA on the basis of this purported jurisdictional nexus requires the excising of the element of “commerce” from the “Commerce Clause.” See id.
As discussed earlier, the Gun Free School Zones Act could not be sustained as a regulation of an activity that substantially affects interstate commerce for three reasons. Section 922(q) was a criminal statute that, by its terms, had nothing to do with any sort of economic enterprise; it contained no jurisdictional element that would have ensured, through case by case inquiry, that the activity in question affected interstate commerce; and it was passed without findings elaborating the link between the activity criminalized and interstate commerce. Lopez, 514 U.S at 561— 63, 115 S.Ct. 1624. The CSRA fails constitutional muster for precisely these same reasons.
The manner in which the activity regulated by the CSRA substantially affects interstate commerce is unclear. “[T]o the extent that congressional findings would enable us to evaluate the legislative judgment that the [failure to satisfy child support obligations] substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here.” Lopez, 514 U.S. at 563, 115 S.Ct. 1624. It is possible to infer from the legislative history that approximately $1.6 billion in interstate child support obligations go unpaid annually, and that Congress believed that some families were driven to federal public assistance as a result of unpaid child support. See H.R. Rep. 102-771, at 5 (1992) (observing that $5 billion in support obligations are not met each year, and that approximately one-third of child support cases concern children whose fathers live in a different state). These observations do not amount to a congressional conclusion that unpaid child support substantially affects interstate commerce, however, and courts would not simply accept that conclusion based on such findings in any event. See United States v. Morrison, 120 S.Ct. at 1752 (noting that “whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question”).
First, the mere fact that the aggregate social costs of an activity amount to a large dollar figure cannot, without more, satisfy the jurisdictional requirement that the activity have a substantial relationship to interstate commerce. See id. at 1754. The notion that the commerce power includes regulation of activities that are connected with a commercial transaction which, viewed in the aggregate, substantially affects interstate commerce stems from Wickard v. Filburn, 317 U.S. 111, 128, 63 S.Ct. 82, 87 L.Ed. 122 (1942), “perhaps the most far reaching example of Commerce Clause authority.” Lopez, 514 U.S. at 560, 115 S.Ct. 1624. But the Supreme Court has made clear that Wickard applies to laws that are “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Id. at 561, 115 S.Ct. 1624. Such is not the case here. The *502CSRA does not address a situation involving the “aggregate effect” of potential market participants’ refusal to participate in commerce — in no small part because child support orders are not commercial. Moreover, I have considerable doubt that, as a factual matter, court-ordered transfers of wealth from one state to another affect interstate commerce. In the aggregate, any given state should have about as much money from support payments leaving its borders as entering. See Recent Case, 110 Harv. L.Rev. 965, 968 (1997). “Thus, the amount of goods bought in each state relative to other states should be basically unchanged, and interstate commerce left unaffected.” Id.
Likewise, federal regulatory jurisdiction cannot be founded on the possibility that nonpayment of support orders might cause individual citizens to become dependent on programs funded with federal money. Taken to its logical conclusion, this reasoning would allow Congress to regulate activity of any person that depletes another person’s assets and, at bottom, is no different from the “costs of crime” and “national productivity” arguments already rejected by the Supreme Court. See Lopez, 514 U.S. at 563-68, 115 S.Ct. 1624. What the Court said in Lopez holds true here as well: “To uphold the[se] contentions ..., 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.” Id. at 567, 115 S.Ct. 1624. Accordingly, I conclude that the CSRA is not a valid regulation of interstate commerce under Lopez’s third and final category.
The majority discusses at length the pervasive and interstate nature of the child support delinquency problem and recognizes that throughout its history, Congress has exercised its positive power under the Commerce Clause to enact “legislation to help the States solve problems that defy local solution.” However, the majority fails to note that the authority to enact these laws flowed from the relationship between the proposed regulation and interstate commerce, clearly ascertainable under one of the Lopez categories, and not the difficulty or interstate nature of the problem. For example, federal laws prohibiting loan sharking were held permissible because loan sharking and the attendant organized crime interferes with interstate commercial activity, not merely because the problem defied state solutions. See Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1970). The other instances cited by the majority, where the courts have upheld congressional authority to regulate the channels of interstate commerce, fall into the category of regulations to prevent the federally maintained channels from being used for immoral or illegal purposes. The National Stolen Property Act, 18 U.S.C. §§ 413-19, cited by the majority, provides an example of regulation designed to prevent criminals from profiting from the open channels of interstate commerce. Further, courts have upheld regulations, such as the Hobbs Act, aimed at protecting commerce itself. These regulations defend the integrity and reliability of the channels of interstate commerce, and congressional authority to enact them flows from the constitutional charge to “regulate Commerce among the several States.”
It might in fact be more convenient in the context of today’s highly mobile society and shifting mores if Congress enacted uniform laws for child support, child custody and spousal support that could be universally applied and easily enforced without regard to state boundaries. That federal solutions to various social problems might prove efficacious and conve*503nient, however, does not confer upon Congress the constitutional authority to regulate non-commercial relationships. Here, the majority wrongly focuses on the pervasiveness of parents’ failure to obey child support orders, the difficulty states have in enforcing such obligations, and the unhappy consequences to a child when his parent is derelict in his or her parental duties. There is no question that the non-payment of child-support is a problem of national proportions. To the extent that state boundaries make support-payment recovery more difficult, it is an interstate problem.
However, as Lopez and Morrison make clear, Congress’s jurisdiction is not premised on the severity of a problem, its susceptibility to a federal solution, or the fact that a federal solution might be more convenient. The failure of a parent to comply with a child-support order does not burden commerce among the states in any way. It does not erect the barriers to trade that the Founders so feared. Nor does the failure to comply with a state support order allow the channels of interstate commerce to be used for some nefarious or dangerous purpose. Moreover, the failure to pay child support interstate has no effect on any national scheme of economic regulation and does not “substantially affect” interstate commerce. In fact, the economic impact of failure to pay child-support intrastate is indistinguishable from the failure to pay after one has moved out-of-state.
It is beyond dispute that willful noncompliance with support orders has a detrimental, often devastating effect on single parents who depend on the payments to make ends meat. Likewise, a victim of crime, such as the plaintiff in Morrison, suffers psychological and emotional scars beyond calculation, but which, for purposes of the justice we are able to provide, might be converted into dollars and cents. However, the Supreme Court has refused to construe these individual losses, even when they are aggregated into terms such as “costs of crime” and lost productivity, as offenses against the American commercial system. See Lopez, 514 U.S. at 563-568, 115 S.Ct. 1624.
In this case, the CSRA’s encroachment on these traditional preserves of state authority does considerable damage to Michigan’s system for regulating child support, which was enacted by its legislature and applied by its elected judges. In light of the traditional notions of federalism and in the wake of Lopez, I cannot conclude that the Commerce Clause countenances such damage. The Supreme Court has observed that when “Congress criminalizes conduct already denounced as criminal by the States, it effects a ‘change in the sensitive relation between federal and state criminal jurisdiction’.” United States v. Lopez, 514 U.S. 549, 563 n. 3, 115 S.Ct. 1624, (quoting United States v. Enmons, 410 U.S. 396, 411-12, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973)). Ironically, it may be that state power suffers greater disruption when Congress criminalizes conduct that the states have chosen not to criminalize but to regulate in a different fashion, for the federal law assigns to the conduct new costs that differ not just in quantum, but in kind, from the costs defined by the state. Such is the case here.
This federal legislative choice is particularly unsettling given that congressional power to disturb state regulatory programs has customarily been thought to fall into three categories, into none of which the CSRA comfortably fits. Congress may, pursuant to its spending power, influence a state’s regulatory decisions by attaching conditions to the receipt of federal funds. See South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 *504(1987). Congress may also craft programs of “cooperative federalism” that offer a state the choice of regulating according to national standards or having state law preempted by federal regulation. See Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288-89, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Finally, Congress may, of course, preempt outright state laws regulating private activity that is within the enumerated powers of the Constitution. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947).
In enacting the CSRA, Congress has followed none of these well-trodden paths. Although the Act does authorize grants to states to coordinate interstate child support enforcement efforts, see 42 U.S.C. § 3796ec (1994), these monies are not tethered to the criminal provisions of the legislation. The Act emasculates the states’ ability to assign social and other costs to the disobedience of child support orders regardless of whether the states accept federal funds. And, unlike the federal government’s use of highway funds to force the states to make changes in their laws governing the consumption of alcoholic beverages, the CSRA does not offer the states the choice between devising remedies within minimum federal standards and having federal funds withheld. Indeed, the CSRA creates no pre-emption issue; the Act is founded on the existence of state court orders, not their displacement. By piggybacking a criminal sanction on the states’ child support orders, the CSRA recognizes the primacy of the states’ laws at the same time that it expressly overrides portions of those laws.
The Constitution diffuses power to protect the citizenry against just such attempts to fragment official action from political accountability. See The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1969) (“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments control each other, at the same time that each is controlled by itself.”). Among the structural protections of the Constitution is the doctrine of enumerated powers, and the Commerce Clause figures prominently among these. Although judicial efforts to maintain the federal balance through exposition of the Commerce Clause have “taken some turns,” Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 180, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995), the Supreme Court reaffirmed in United States v. Lopez that there are some activities that states may regulate but Congress may not.
Although Michigan has a felony desertion statute on its books, it is rarely enforced and, in any case, it does not link criminal liability to judicial child support orders. See Mich. Comp. Laws Ann. § 750.161 (West 1991) (providing liability for refusing “to provide necessary and proper shelter, food, care, and clothing for ... his or her children under 17 years of age”). Civil child support enforcement methods “account for virtually all enforcement activity in Michigan.” Scott G. Bas-sett, Family Law, Annual Survey of Michigan Law June 1, 1990 May 31, 1991, 38 Wayne L.Rev. 1045, 1070 (1992). Michigan law commits to the discretion of state judges the means by which to enforce — or to deter failure to obey — a support order. A circuit court judge may incarcerate a person for child nonsupport, but this remedy is civil in nature. See Mich. Comp. Laws Ann. § 552.635 (West 2001); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 500 n. 15 (1990) (“Clearly, it was *505intended that the Michigan statutory procedure authorizing incarceration for child nonsupport should be regarded as civil in nature.”). Furthermore, the judge’s discretion in this regard is carefully cabined; an order of incarceration may be entered only if other remedies — such as income withholding, interception of tax refunds, and property liens — “appear unlikely to correct the payer’s failure or refusal to pay support.” Mich. Comp. Laws Ann. § 552.637(1) (West 2001).
The CSRA disrupts the state scheme. By creating a federal criminal penalty as a deterrent for disobedience of support orders in some circumstances, the Act renders nugatory the discretion invested in Michigan circuit court judges. Moreover, these judges are subject to election, see Mich. Const, art. 6, § 11, and the contours of their discretion are determined by an elected legislature; the CSRA thus prevents Michigan officials from regulating in accordance with the views of the local electorate. See New York v. United States, 505 U.S. 144, 168-69, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (noting that where Congress encourages state regulation rather than compelling it, state officials remain accountable to the people, but that accountability is diminished when, due to federal interference, “elected state officials cannot regulate in accordance with the view of the local electorate in matters not pre-empted by federal regulation”). In essence, the Act carves up Michigan law by predicating liability on violations of Michigan court orders, but putting deterrence and penalty decisions into the hands of United States officials in that minority of cases in which the state of residence of the payer is different from that of the child.
In United States v. Morrison the Supreme Court warned against overly elastic conceptions of the Commerce Clause that would give Congress authority over family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” Morrison, 120 S.Ct. at 1744. Mindful of this admonition, I would hold that the provisions of the Child Support Recovery Act of 1992 contained in 18 U.S.C. § 228 (1994), exceed Congress’s authority under the Constitution. It is important to note that such a ruling would not prevent Congress from assisting the states in obtaining interstate enforcement of their courts’ orders. Congress can do so (and has done so) pursuant to the Full Faith and Credit Clause. See Full Faith and Credit for Child Support Orders Act, Pub.L. No. 103-383, 108 Stat. 4064 (1994) (codified as amended at § 28 U.S.C. 1738B (1994)). But Congress may not, under the guise of the commerce power, criminalize the failure to obey a state court order when the state itself has declined to do so. Such legislation does considerable violence to state regulation by fragmenting the state courts’ ability to announce judgments and their ability to determine the sanction that will attend disobedience of those judgments. Absent a stronger connection with the commercial concerns that are central to the Commerce Clause, this intrusion disrupts the federal balance that the Framers envisioned. See Lopez, 514 U.S. at 583, 115 S.Ct. 1624 (Kennedy, J., concurring).
. A court order to pay child support reflects a parent's legal and moral debt to the child, but the child has no reciprocal obligation to the parent. There is simply no commerce involved in this kind of obligation.
. The majority fails to identify clearly which category of Lopez authorizes its holding, and instead cobbles together pieces from each to find congressional regulatory authority. But the categories of permissible regulation of commerce set forth in Lopez are discrete and limited, and do not permit courts to "mix and match" attributes of the various categories to extend congressional power.
The majority begins with the doubtful premise that a debt owed to one in another state is a "thing” in interstate commerce, regardless of whether payment is demanded or attempted. From there, the majority reasons that if the debt were to be paid, the payment would travel in the channels of interstate commerce, whose regulation falls within the category of keeping the channels of commerce open and free from impediments. The majority then concludes that because the Constitution authorizes Congress to keep commercial channels free from impediments, and because the payment of an interstate debt is a "thing” in interstate commerce, Congress may impose criminal penalties for failure to place such a payment into the channels of interstate commerce. This “if we had some ham we could have a ham sandwich if we had some bread” reasoning is unfortunate.
The distinct categories of Lopez, and the majority’s fallacious reasoning are perhaps better illustrated by using as an example a hypothetical river barge cariying goods inter*499state. Using its power to keep the channels of interstate commerce free from impediments, Congress could legitimately prevent the building of dams or toll locks on the river. Likewise, Congress could properly regulate the barge and its cargo as things in interstate commerce. Or, Congress might regulate wholly intrastate aspects of production of goods carried on the barge if that production substantially affected the commerce of the nation. But today’s majority opinion would allow Congress to criminalize the failure to place cargo on the barge under the theory that such failure might somehow stem the flow of the river, because the lack of the goods would substantially affect certain individuals residing downstream.