Today, in United States v. Sullivan, the U.S. Court of Appeals for the D.C. Circuit upheld the conviction of Roger James Sullivan for "knowingly possessing child pornography images that were transported in interstate commerce via the Internet." A unanimous panel rejected Sullivan's claim that Congress lacked the power under the Commerce Clause to prohibit the purely intrastate possession of pornography. Relying upon the Supreme Court's decision in Raich v. Ashcroft, the court had no difficulty dispatching Sullivan's claim.

Not all three judges on the panel were comfortable with this result, however. Judge David Sentelle wrote a separate concurring opinion to note the confusion in current Commerce Clause jurisprudence, in partciular the conflict between the holdings of Raich and United States v. Lopez. Wrote Sentelle:

As appellant's argument properly points out, Lopez limited the reach of the Commerce Clause to three categories. The first two are plainly not implicated by appellant's conduct. Therefore, for the federal government to constitutionally regulate that conduct, it must fall within the category of "activities having a substantial relationship to interstate commerce . . . i.e., those activities that substantially affect interstate commerce . . . ." I am at a loss as to how purely intrastate possession of a product that has previously traveled interstate substantially affects interstate commerce. . . .

It is not at all plain to me that the present conduct falls within any of the three analytical elements [identified in Lopez. First, it is not clear that regulation of purely intrastate possession of a product is necessary to the regulation of the commercial activity which Congress seeks to regulate. Second, there is no relevant jurisdictional section. Third, if the purely intrastate and noncommercial possession of a product is regulable simply because some of the product may have previously passed in interstate commerce, then I see no stopping point.

In the end, however, I cannot fault the majority's application of the later decision in Raich. I can, however, hope that the High Court in some further decision gives us some better method of reconciling its holdings on the extent of congressional power under the Interstate Commerce Clause.