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.