Monday, September 17, 2001
Lawyer-Mother Tells Ninth Circuit
Statute Barring Passports for Child Support Debtors Unconstitutional
By KENNETH OFGANG, Staff Writer/Appellate Courts
A lawyer who cannot get a passport because she owes her ex-husband more than $28,000 in child support Friday urged a Ninth U.S. Circuit Court of Appeals panel to strike down the statute under which she claims her constitutional right to travel is being violated.
“This is the United States of America, it’s supposed to be a free country,” Eudene Eunique told the judges.
Yet “you can’t leave your own country” under 42 U.S.C. Sec. 652(k), she complained.
The statute requires the State Department to deny a new passport, and permits it to revoke an existing passport, for any citizen who is certified by state officials as owing more than $5,000 in child support. The law was enacted in 1997 as part of a federal effort to assist states in enforcing their child support laws.
Judge M. Margaret McKeown didn’t offer much sympathy to Eunique, who maintains a general practice from her home in the San Bernardino County community of Lucerne Valley.
McKeown opined that the law doesn’t bar Eunique from traveling, since she can get a passport by paying the money. In addition, the judge noted, she can ask the state to remove her from the list of delinquents if extenuating circumstances, such as a family emergency, arise.
Eunique responded that the law “seems very unfair.” The authority to remove names from the list, she pointed out, is entirely discretionary.
Judge Ferdinand F. Fernandez questioned whether there is a “fundamental” right of international travel. The Supreme Court, he noted, has only blocked the enforcement of passport denials when a free-speech issue was involved.
He distinguished Aptheker v. Secretary of State, 378 U.S. 500 (1964), which Eunique cited. Aptheker struck down a law barring Communists from using or applying for passports.
The difference, Fernandez said, is that the law in Aptheker was seeking to curb speech, which the government doesn’t have a right to do, while Sec. 652(k) is designed to enforce payment of child support.
McKeown asked Eunique how she could afford to travel if she couldn’t pay child support. The lawyer said her relatives, who are frequent travelers, would host her if she could join them.
“Maybe they can donate to the child support fund,” the judge commented, but Eunique said she doubted it.
While Eunique, who told the judges she didn’t know much about constitutional law, concentrated her argument on the right to travel, one member of the panel indicated she might have a stronger argument based on the Commerce Clause.
Ann Mai, the government lawyer who argued the case from Washington by telephone because of travel difficulties, struggled to answer a question from Kleinfeld as to what the nexus was between the law and interstate or foreign commerce.
Kleinfeld questioned whether the law would apply if a couple divorced, but continued to live in the same community, and the father fell behind in his child support obligations without ever traveling outside the state.
When Mai said it would, Kleinfeld asked whether the case would fall under the series of Supreme Court decisions overturning certain federal laws—such as the Gun-Free School Zones Act and portions of the Violence Against Women Act—as being outside congressional authority.
Fernandez answered his colleague’s question, suggesting that “the nexus to interstate or foreign commerce is that [the hypothetical father] wants to be in interstate or foreign commerce.”
Copyright 2001, Metropolitan News Company