A Critical Analysis of the International Child Support Enforcement Provisions of the Social Security Act: The (In)ability of States to Enter into Agreements with Foreign Nations

Abstract

This paper examines the constitutionally of the recently promulgated statutes addressing the issue of international child support enforcement. It provides an analysis of the various questions raised by the application of the provisions upon the scope of the state or local government's ability to enter in the realm of foreign affairs. Section I briefly examines the articulated purposes of the ICSE provisions and demonstrate that they are not consistent with the actual language of the statute. Section II analyzes the constitutionality of the ICSE provisions' grant of extra-constitutional powers to the states. It will consider those clauses in the constitution which may give Congress the authority to pass the ICSE provisions. Section III analyzes Congress' ability to regulate family law. Finally, this paper proposes two things. First, if the statute is valid, then international child support enforcement should be placed on a completely federal level without local interference by the states into the federal government's foreign policy. Furthermore, if Congress has Commerce Clause authority to regulate here, the provisions can become constitutional without losing the desired effect by removing the language directed toward the states from its content. Second, if Congress is aggrandizing their power to regulate under the commerce clause then the life span of the ICSE provisions is in serious jeopardy.