6th Circuit: Homemade child pornography does not fall outside purview of congressional legislative power
U.S. v. Bowers, No. 08-2412, (6th Cir. Feb. 8, 2010)
6th Circuit: Homemade child pornography does not fall outside purview of congressional legislative power.
At issue in Bowers is “the continued viability of an as-applied Commerce Clause challenge to a child-pornography conviction under 18 U.S.C. § 2251(a) [producing] and 18 U.S.C. § 2252(a)(4)(B) [possessing], following the Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1 (2005):
Because Raich makes clear that if a ‘general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence,’ Raich, 545 U.S. at 17, Defendant Stephen Lee Bowers’s claim that his wholly intrastate, homemade child pornography falls outside the purview of congressional legislative power is meritless. In so holding, we now recognize explicitly that United States v. Corp, 236 F.3d 325 (6th Cir. 2001), is no longer the law of the Circuit . . . In sum, Raich indicates that Congress has the ability to regulate wholly intrastate manufacture and possession of child pornography, regardless of whether it was made or possessed for commercial purposes, that it rationally believes, if left unregulated in the aggregate, could work to undermine Congress’s ability to regulate the larger interstate commercial activity.