The Washington State law and the Commerce Clause

[catlover]

I'm no lawyer, but consider the following:

Baldwin v G. A. F. Seelig (1935) invalidated a New York law prohibiting the sale in the state of milk bought outside of New York. New York argued the law was necessary to avoid price competition that would drive dairies into producing less wholesome milk. The Court, more realistically, saw the law as protectionist. Justice Cardozo wrote that when "a state tries to isolate itself economically" it must show an important interest for doing so and that it had no less discriminatory mean open for accomplishing its goal. Cardozo's test has become the standard test for evaluating state laws that discriminate against out-of-state commerce.

quoted from http://www.law.umkc.edu/faculty/proj...tecommerce.htm

There are a lot of cases on this site. Anyhow, my question is -- any chance of getting the Washington law invalidated as unconstitutional discrimination against interstate commerce?

[Niediam]

Well, considering that there is no interstate commerce affected by the ban...

[catlover]

Really? You don't think that gambling information is ever transmitted interstate by telephone?

[catlover]

Also -- I'm not sure if the New York decision applies only to commerce among states, or if it also applies when a state attempts to regulate international commerce.

[Kurn, son of Mogh]

I seriously doubt that the Commerce Clause can be construed to be relevant to international commerce.

[Kurn, son of Mogh]

In this case, Washington is not "isolating itself economically" from the other States, since the business involved is located offshore.

Besides, Washington is not the first State to specifically criminalize online gaming. Nevada banned online gaming years ago.

[grapabo]

I think the fact pattern that would apply to cause Commerce Clause issues would be if Washington's law forbade people from gambling on out-of-state online casinos, but allowed them to gamble on online casinos set up within the state. That would discriminate between in-state and out-of-state online casinos, and absent a good reason, would be unconstitutional.

Because Washington's law doesn't discriminate in this way, there wouldn't be a Commerce Clause issue.

Incidentally, one of the problems with the federal legislation pending it that it has to make an exception to exclude online gambling within the state, because the Commerce Clause doesn't allow Congress to regulate purely intrastate activity. This distinction may be more theoretical than real, but I would imagine states would resolve that problem by doing what Washington did - change the state law to clarify once and for all that online gambling is illegal.