United States v. McCoy

323 F.3d 1114 (9th Cir. 2003)


Facts: McCoy was charged with violation of a federal child pornography law and pleaded guilty conditional upon her right to appeal on constitutional grounds.  McCoy appealed to the Ninth Circuit Court of Appeals, arguing that the statute under which she was charged exceeded the constitutional authority of Congress under the Commerce Clause.


Issue: Is the section of the statute that forbids possession of child pornography “made with materials transported in interstate commerce” constitutional under the Commerce Clause?


Rule: To determine whether a statute is constitutional under the Commerce Clause, the four-part test of Morrison must be applied:


1.     Is the prohibited activity of a commercial or economic nature?

2.     Is the connection between the prohibited activity and interstate commerce too attenuated to allow the exercise of the Commerce Clause power?

3.     Does the statute contain an “express jurisdictional element” intended to satisfy Commerce Clause requirements?

4.     Do congressional findings exist to support a connection between the prohibited conduct and interstate commerce?


Analysis: The majority notes that its decision does not affect the ability of the state of California to punish McCoy under state law.


The majority starts by finding that Morrison controls in the current case and sets out a four-part test to find out whether the Commerce Clause power was exceeded.


Following the first factor, the majority finds the fact that McCoy’s behavior was non-commercial and non-economic to be especially important to their conclusion.  The court distinguishes this case from Wickard, saying basically that since McCoy was not a customer in the interstate child pornography business, the photograph she was responsible for would not affect that business in any way.


The court finds that there is not a highly attenuated relationship between McCoy’s behavior and interstate commerce, but rather no relationship whatsoever.


The court notes that the statute in question does contain an express jurisdictional element, but the court says that this is not dispositive.  This goes against what some other Circuits have claimed in decisions pre-dating Morrison.


Finally, the court finds that the legislative history does not support the constitutional application of the statute to non-commercial activities.  The court notes that the congressional findings mention “multimillion dollar [child pornography] industries”, suggesting that the statute is mostly intended to combat child pornography in terms of commercial activity.  The court also finds that the legislative history contains previously expressed concerns over the constitutionality of the statute.


The dissent argues against the technique of narrowly construing the statute to make a particular section unconstitutional while apparently leaving the remainder unaffected.  Instead, the dissent says that the court needs to either find the statute constitutional on its face or unconstitutional on its face.  Moreover, the dissent would give more deference to Congress in their implicit finding that purely non-commercial, intrastate possession of child pornography substantially affects interstate commerce.  The dissent says this a political question and not a legal question.


Conclusion: The court finds that the statute is unconstitutional as applied and reverses McCoy’s conviction.


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