Gambling ban and judicial review

[damaniac]

I saw some posts in the main HR 4411 thread but thought it might be better to separate this issue out.

My ConLaw is a bit rusty but I'll give this a go, others can correct my most blatant errors and add information.

The law is most likely justified under commerce clause powers. The gambling sites are overseas, and even if they were based state-side there would be many interstate wagers, so it fits very easily under this category, far better than a lot of things justified under the CC.

Courts are going to apply a rational basis test when reviewing this legislation if challenged. This means the government need only show a rational basis for enacting the law. Two things to know about this: 1) It doesn't need to be rational and 2) it doesn't need to be the basis for the law. Very deferential. The courts won't (or shouldn't, based on the caselaw) delve into heavy fact-finding to see if the claims are in fact correct.

Ex: People gamble online, they lose money to overseas companies, and thus are less likely to spend money travelling around the country or purchasing goods and services that move around among the states. Good enough. Or, more likely, interstate wagers ARE commerce. Also good.

Now they just need to show that it has some rational relation to commerce, which I think is pretty easy. I don't think they need to go farther and say anything about, say, protecting the children. The court wouldn't look too much at underinclusive/overinclusive, or whether it even does the job very well ("narrowly tailored", for example).

One could argue that there is a substantative due process right to gamble or spend money as one sees fit. Yeah, not gonna work. The state has always regulated gambling in one form or another, there is no way the courts will declare that the state no longer has power to regulate/ban such activity.

Then there might be some WTO/international trade agreements. This is where my knowledge falls from scant to nonexistent (international trade is next semester). People mentioned a case before involving Barbados or some such island. I didn't read the whole thread, so someone can take it from here, as well as adding to/correcting my post.

[Gregg777]

Finally a post with actual substance as to why the courts might have any teeth with this bill.

[top6]

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The law is most likely justified under commerce clause powers.

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Your post for the most part could have ended here. This is precisely why the law won't be overturned by a court.

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The gambling sites are overseas, and even if they were based state-side there would be many interstate wagers, so it fits very easily under this category, far better than a lot of things justified under the CC.

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Correct.

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Courts are going to apply a rational basis test when reviewing this legislation if challenged.

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I don't think a court will ever be in a position to hear this argument. There is no way a court would ever buy this argument; and in the very unlikely event that one did it would certainly be overturned on appeal.

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This means the government need only show a rational basis for enacting the law. Two things to know about this: 1) It doesn't need to be rational and 2) it doesn't need to be the basis for the law. Very deferential. The courts won't (or shouldn't, based on the caselaw) delve into heavy fact-finding to see if the claims are in fact correct.

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Absolutely correct. Again, this wouldn't be a very serious argument

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Ex: People gamble online, they lose money to overseas companies, and thus are less likely to spend money travelling around the country or purchasing goods and services that move around among the states. Good enough.

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A court is not some sort of super legislature with the power to overturn laws because they are wrong or misguided; provided those laws are Constitutional. You understand this, but I want to spell it out for other posters who haven't had the benefit of Con Law.

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Or, more likely, interstate wagers ARE commerce. Also good.

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This is why the law is Constitutional.

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Now they just need to show that it has some rational relation to commerce, which I think is pretty easy. I don't think they need to go farther and say anything about, say, protecting the children. The court wouldn't look too much at underinclusive/overinclusive, or whether it even does the job very well ("narrowly tailored", for example).

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Bingo.

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One could argue that there is a substantative due process right to gamble or spend money as one sees fit. Yeah, not gonna work. The state has always regulated gambling in one form or another, there is no way the courts will declare that the state no longer has power to regulate/ban such activity.

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Exactly. I don't know why posters think internet gambling is so different than the "live" gambling that was banned for years.

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Then there might be some WTO/international trade agreements. This is where my knowledge falls from scant to nonexistent (international trade is next semester). People mentioned a case before involving Barbados or some such island.

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My knowledge is as limited as yours in this area, but my understanding is that a U.S. court could not overturn a law on this basis. (I think there is a case that prevents courts from overturning laws on the basis that they violate a treaty, but I could be wrong.) HOWEVER, a poster in the other thread made the very good point that the fact that this law violates international law could lead the Bush administration to try to change the law (or stop it from passing - I don't think they would actually veto it though).

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I didn't read the whole thread, so someone can take it from here, as well as adding to/correcting my post.

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I am just adding my 2 cents. I am not an expert by any means. However, I am pretty confident that the courts will not overturn this bill, and we should not pin our hopes there.

[top6]

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Finally a post with actual substance as to why the courts might have any teeth with this bill.

[/ QUOTE ]I think I've explained several times, substantively, why the bill will not be overturned. You've suggested it will because it is too broad or something. Although that might mean a future Congress will overturn it, that is NOT a reason that a court will overturn it. That is basically what you learn the first day of con law in law school. I'm sorry.

[damaniac]

Re: international agreements. One thing that might work, as was mentioned before, is if they litigate in front of the WTO or whatever organizations have jurisdiction on international trade disputes of this variety, and the remedy is self-help. I think there was a case where the Bush steel tariffs violated an agreement. The US courts weren't about to do anything, but the WTO/whoever ruled that the aggrieved country could then put its own tariffs/restrictions on citrus goods (the reason being: steel, from Pennsylvania, near an election, so citrus, from Florida, another big swing state, counterbalances this, or so I was told anyway). So depending on where the poker sites are based, if an agreement is violated, the country may have the ability to enact countermeasures.

The issue then becomes, is that country willing to impose those sanctions on the US, and is the country in a position such that those sanctions will be able to effectively harm the US so that they drop the ban. And even then, hard-headed conservatives are probably likely to say something like "we aren't changing our laws because the Republic of Nowhere doesn't like it, we'll tough it out/do something else unproductive".

So, not too good either. Gotta win this in the legislature. One point to make is if the Dems take either branch (not likely, but I can dream), the bill is less likely to come up again. Not only are more Dems against it (although as we see not nearly enough), but we can hope that Dems who do oppose it get key positions, in which case they can do a lot to nix it. The other point is that if the Dems get one house or, even less likely, both, they will be very concerned with repealing Republican measures and implementing their own, given they've been out of power so long. Gambling isn't going to be worth considering for a long time.

[Gregg777]

Top, what's your beef with me?

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I've explained several times, substantively, why the bill will not be overturned.

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Not anything I read. Exactly what "facts" did you state?

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You've suggested it will because it is too broad or something. Although that might mean a future Congress will overturn it, that is NOT a reason that a court will overturn it.

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I have said several times I am not saying what will happen one way or the other, I asked for facts as to why the bill won't be overturned and the OP provided something you failed to do.

[top6]

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One point to make is if the Dems take either branch (not likely, but I can dream)

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I agree with your whole post, except this "not likely" [censored]. Look at the polls. WE CAN WIN. WE WILL WIN. (We have to win.) (I do think we have a 40-50% chance to win the House.)

[top6]

Greg, I have no beef. I just don't want anyone to have false hope that if this bill passes the courts will save us. If the bill passes, online poker players are screwed. I just want people to take it seriously.

If I haven't explained clearly enough in this or the "let's go" thread, I'm sorry. There is a reason I am not a teacher, I am not good at explaining this stuff, and I am a bit distracted.

[Gregg777]

No beef here either.

I am too thick and need it put as plainly as possible, I must have just understood the OP better.

[Wynton]

I've just skimmed this thread, and basically agree with everyone, with one quick caveat.

Laws ARE sometimes deemed to be unconstitutional, as applied, on the ground of "vagueness," a term which is occasionally substituted (sloppily) for "overbroadness." Simply put, the due process clause requires that a law provide fair notice as to what conduct is criminalized.

Here, I assume that such a challenge would not work, though, unless a prosecutor tried to stretch the law's reach unreasonably, perhaps by a strained interpretation of the phrase "business of betting and wagering."

[momo24]

OP and Top6 have the analysis correct. This bill is clearly constitutional. Couple additional points: OP mentioned treaties. I don't know enough about these treaties to know whether the pending legislation conflicts with treaty obligations, but it wouldn't matter. Courts apply the "last-in-time rule" to resolve conflicts between two statutes or a statute and a treaty so whichever was more recently enacted prevails. In other words, if this bill passes it effectively repeals any earlier, conflicting obligations in treaties.

As for vagueness and overbreadth, these would also fail. Vagueness depends on whether the law provides notice to a person whether his actions are legal or illegal. There's a lot you can criticize this bill for, but vagueness isn't one of them. It pretty clearly makes certain transactions/activities unlawful. As for overbreadth, this doctrine really only has teeth when your dealing with restricting fundamental rights, most notably First Amendment (Broadrick) and abortion (Stenberg). A general due process overbreadth challenge is subject to a very low threshold -- the law is upheld unless it is unconstitutional in all its applications (Salerno). The law won't be struck down on this ground either.

Perhaps the most important point: The legal discussion in this forum arose out of the claim that even if the bill is passed it will take years for courts to decide if it is constitutional. The claim seemed to assume that the bill couldn't go into effect until it had been through the courts. But the opposite is true. Even if this bill is unconstitutional, online poker will be illegal for the 2-3 years that it takes to challenge it in court, which could kill the online sites even if they ultimately prevail. (Which they won't.)

[damaniac]

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Perhaps the most important point: The legal discussion in this forum arose out of the claim that even if the bill is passed it will take years for courts to decide if it is constitutional. The claim seemed to assume that the bill couldn't go into effect until it had been through the courts. But the opposite is true. Even if this bill is unconstitutional, online poker will be illegal for the 2-3 years that it takes to challenge it in court, which could kill the online sites even if they ultimately prevail. (Which they won't.)

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Actually this is a good argument that it wouldn't go into effect. If this law would likely kill online poker, then there would be irreparable harm and it would more appropriate to grant a preliminary injunction (assuming someone files a lawsuit). Of course, this is academic because the other factor in granting a preliminary injunction is likelihood of sucess on the merits which, as we've discussed, is around 0.

[momo24]

It would be hard to show "irreparable" harm here because if the gambling ban were lifted, things would just go back to the way the were before. We're concerned with fish leaving and never coming back, but courts wouldn't care about that. If the law is struck down, the games would resume, the fish could come back, and that would be good enough.

[Wake up CALL]

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One point to make is if the Dems take either branch (not likely, but I can dream)

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I agree with your whole post, except this "not likely" [censored]. Look at the polls. WE CAN WIN. WE WILL WIN. (We have to win.) (I do think we have a 40-50% chance to win the House.)

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A 40 to 50% chance to win (I presume you mean win control in Congress. Do you get all-in on coin flips in poker that often? Besides there is less than a 1% chance that we will have a Democrat controlled House and Senate and a 0 % chance that they would make any changes at all in this if it does become law.