UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JAMES MAXWELL, DEFENDANT-APPELLANT

EDMONDSON, Chief Judge, concurs in the result. .

Section 2252A(a)(5)(B) provides, in relevant part: Any person who ... knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer ... shall be punished .... . In making this point, we noted the following: [I]f the commercial import of general categories of noneconomic, criminal activities could be measured in the aggregate, jurisdictional hooks would be rendered irrelevant. Because the categorical activity of intrastate pornography would be invariably deemed to have a substantial economic effect on interstate commerce, Congress would not be constrained to proscribe its possession to cases in which the materials used to produce it were transported in interstate commerce.

Thus, the misguided aggregation approach suggests that jurisdictional elements in all of ■ Congress's Commerce Clause enactments amount to nothing more than superfluous hurdles to federal law enforcement. Maxwell, 386 F. 3d at 1060-61. As we note, infra., this concern, we believe, has come to fruition. . In Raich, the Court explained that: Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment .... By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. Raich, 125 S.Ct. at 2204. . The Court quite broadly defined “economics” as "the production, distribution, and consumption of commodities." Id. at 2211 (quoting Webster's Third New International Dictionary 720 (1966)) (internal quotation marks omitted). . The Court’s opinion leaves some doubt as to whether, in the Commerce Clause context, an as-applied challenge may ever be sustained so long as Congress may constitutionally regulate the broader class of activities of which the intrastate activity is a part: [Rjespondants ask us to excise individual applications of a concededly valid statutory scheme.

In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for we have often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances’ of the class.” Id. at 2209 (second alteration in original) (quoting Perez, 402 U.S. at 154, 91 S.Ct. at 1361 (quoting Wirtz, 392 U.S. at 193, 88 S.Ct. at 2022)); see Randy E. Barnett, Foreword: Limiting Raich, 9 Lewis & Clark L.Rev. 743, 745 (2005) (“What of the viability of as-applied challenges after Raich? While making such challenges less likely to prevail, because of its expanded construction of federal power, the Court never denies that such challenges can be brought. Wickard v. Filburn, Heart of Atlanta Motel v. United States, and Katzenbach v. McClung were all as-applied challenges. While Raich now joins this unsuccessful list, in none of these cases did the Court ever deny the availability of such a challenge.”(footnotes omitted)).

We express no view on this more general issue except to note that, under the current framework, successful as-applied challenges to facially constitutional comprehensive regulatory schemes will be the rare exception. .

We note at the outset the potential confusion that may arise from the now unclear status of the four Monison/Lopez factors post-Raich. Although Justice O’Connor, in dissent, analyzed those factors as a doctrinal framework, see 125 S.Ct. at 2221-29 (O’Con-nor, J., dissenting), the majority’s analysis neither systematically scrutinized the four factors nor explained why it did not do so. We decline to adopt a general theory for when those factors apply and when they do not. It is sufficient for present purposes to note we are not here dealing with a single-subject statute whose single subject is itself non-economic (e.g., possession of a gun in a school zone or gender-motivated violence).

Rather here, as in Raich, appellant challenges a component of a broader regulatory scheme whose subject is decidedly economic. As such, Raich guides our analysis. . We recognize that, at least in one respect, the regulatory scheme of which the CPPA is a part is less comprehensive than the CSA: The CSA is a "comprehensive framework for regulating ... five classes of ‘controlled substances,' ” Raich, 125 S.Ct. at 2210, whereas the regulatory scheme at issue here deals only with child pornography — not all forms of pornography, nor all forms of child abuse. In our view, however, the CSA was constitutionally "comprehensive” in that it regulated an entire market for a commodity, as opposed to the isolated, discrete acts that were the subject of regulation in Lopez and Morrison.

We find nothing in Raich to suggest that the outcome would have been different had Congress chosen to regulate comprehensively the marijuana market alone and not the markets for the several classes of drugs it ultimately decided to regulate. As such, Congress’s regulation of the child pornography market is similarly "comprehensive” in the constitutionally-relevant sense. . We recognize that by leaving a segment of the child pornography market unregulated, the argument that Congress’s inability to reach wholly intrastate activity would frustrate enforcement of the interstate market is somewhat undermined. We believe, however, that there are two responses to such an argument that minimize its force.

First, ease of enforcement is only one of the concerns prompting Congress's regulation of intrastate possession; Congress is also concerned about the intrastate activity triggering demand in the interstate market. Congress could rationally conclude that it need only address most, but not all, intrastate child pornography (and thereby intrude on traditional state authority to a lesser extent) to allay effectively this concern.

Second, the realities that prompted us earlier to question the efficacy of the jurisdictional element play in favor of congressional authority here: The intrastate possession of child pornography produced using purely intrastate materials is a class of activity that simply does not exist in modern society. See Maxwell, 386 F. 3d at 1063 ("We have struggled to conceive of a possessor of child pornography who would not be subject to federal prosecution if Maxwell is .... We strongly suspect that it would be impossible in today’s world to develop a picture without utilizing a material, somewhere down the line, that originated beyond the borders of the state in which the picture was taken."). As such, to the extent ease of enforcement is frustrated at all, it is to a minuscule degree.