Legal Precedent - Unconstitutional

[webmonarch]

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Please support why you think protectionism is constitutional in between forms of gambling.

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Sure. I'm an attorney, and I think every attorney who has posted in this thread has agreed with me.

Echoing a few other comments, your suggestions are just not applicable in any serious setting. I mean, talking academically is cool, but actually applying these theories you suggest is just not realistic.

[AlexM]

Marajuana laws are protecionism for alcohol and tobacco industries. Fat lot of good that does in getting it legalized.

[AlexM]

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Get real, bud. The law may suck, but it is quite clearly constitutional. You are offering a lot of very impressionable people a ton of false hope when you post garbage like this. Please stop.

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A, nothing is quite clearly constitutional, you are neither a supreme court judge, educated lawyer, or some sort of expert on the matter.

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Mr.K is correct. The issues you are raising are not gray areas. They are not close at all. The UIGEA is quite clearly constitutional. You are misapplying both commerce clause analysis and equal protection clause analysis. (And I am an "educated lawyer.")

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No, it's actually quite clearly unconstitional to anyone who actually reads the Constitution and studies the Founders' original intent, lawyer or no. It's only constitutional if you buy into the BS misinterpretations of the Constitution that our government uses on a regular basis or completely ignore original intent. Of course, as it's a lawyer's job to exploit the law for their benefit, most of them are going to respect the way our government exploits the Constitution.

Now, just because it is unconstitutional doesn't mean anyone cares. The Supreme Court would rule it constitutional (although Clarence Thomas would make the correct dissenting ruling), so there's no point in getting any hope up over the constitutional aspect of this.

[JPFisher55]

It amazes me that the Supreme Court just ruled that the Geneva Convention applies to the detainees at Gitmo and thus the government actions and laws are restrained by that treaty regarding treatment and trials of these detainees who happend to be terrorists.
However, everyone seems to think that the WTO and related trade treaties do not restrain government laws, actions and regulations against online gambling websites.
I am an attorney, also. I won't pretend to know the constitutionality or enforceability of this new law. However, I am amazed at how many lawyers unequivicably disregard every potential legal argument against this law.
Every lawyer knows how difficult it is to predict the outcome of any litigation, especially a complex case like any case against this law.

[AlexM]

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However, everyone seems to think that the WTO and related trade treaties do not restrain government laws, actions and regulations against online gambling websites.

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I would certainly say that a WTO based court case has much more chance of success than a constitionally based one.

[maurile]

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Okay Maurie, glad I'm chatting with an educated lawyer, under the provision that no state laws shall be changed by this action; A poker company sets up in California to produce online gaming since it is a game of skill. Now the game of skill is legal in California online, and California invites people in all the other states to come play poker. What happens; state laws are explicitly not pre-empted, the issue then I would think becomes a states rights issue of regulation on interstate commerce.

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"Game of skill" really has nothing to do with it. Poker is legal in California (without a percentage rake) by statute, not because it's a game of skill. (Section 330 of the penal code specifically lists the games that are unlawful. Poker is no longer on the list.) But that's a side issue.

If California allows online poker and somebody in Washington State plays, the person from Washington State is not violating any California law. But he may very well be violating a Washington State law. It depends on how Washington's statute reads. In that case, money transfers to a California poker site on behalf of the person in Washington State are subject to the UIGEA.

The protectionism thing (i.e., the negative aspect of the Commerce Clause) doesn't come into play because no state makes it illegal for its citizens to play on sites hosted within the state but not to play on sites hosted outside the state. And even if a state did do this, it looks like it has Congress's specific blessing to do it under the UIGEA.

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As for the equal protection clause, is this not a discrimination against a class of people who play poker online?

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All laws discriminate against somebody. Laws against poker discriminate against poker players. But since poker players are not a protected class, Congress needs only a rational basis for the discrimination. That's easy: poker causes people to incur debts. (And note that the UIGEA doesn't even discriminate against poker players since it doesn't make poker illegal. It makes money transfers to unlawful websites illegal. The rational basis for prohibiting the funding of unlawful businesses should be self-evident.)

Also, you are not making the right comparison by saying that poker players are being treated differently from horse-racing bettors. The government is perfectly free to make one bad thing illegal without making every bad thing illegal. If poker is bad, the government can prohibit it without regard to whether it also prohibits betting on horses.

The relevant analysis is whether poker players may be treated differently from non-poker players, and the obvious answer is yes since poker is evil. From an Equal Protection Clause standpoint, this is a slam dunk. (And note again that the UIGIA does not treat poker players differently from non-poker players. It treats people who fund unlawful websites differently from people who don't fund unlawful websites.)

[dxu05]

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... there is to be the balance that must be weighed as when approached by all supreme court decisions. The benefit of the legislation versus the destruction of the legislation. Online gaming is said to be a 13 billion dollar industry; limited to only the US we can create potential numbers of anywhere from 2 billion to 8 billion dollar industry if 40% of international gambling is from the US. In that case, the benefits of the bill must outweigh 2 billion to 8 billion dollars of interstate business that can potentially occur. The benefits as stated are money laundering, corruption of children, etc. Thus, it needs to be then proven that the effect on the lives of those who play poker is A: Negative, B: unavoidable by a better alternative, and C: worthy of a benefit greater than 2-8 billion dollars.

I find it hard to quantify A or B as a good majority of gamblers are consenting adults, B is certainly not valid since the alternative of taxing and regulation is far better. And C, is unquantifiable, in fact I doubt many qualified experts will say that the damage caused by online poker exceeds billions of dollars.

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I'm not sure why you think the courts must perform some sort cost/benefits analysis. They don't. Legislation can be economically unwise, or even totally foolish, and still be constitutional.


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In many cases there is the balance factor in which the benefits are weighed against the losses which is discussed in the judicial opinion section, thats why I would insinuate that the courts weigh the benefits and cons.

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Please support why you think protectionism is constitutional in between forms of gambling.

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I have no idea what you're getting at. Congress has the authority to regulate interstate commerce.

The cases you're citing (like the Michigan landfull thing) involve state laws, not federal laws. States cannot regulate interstate commerce. Congress can.

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Exactly. The cases you cite are off point. The standard is not the same. Congress only needs a legitimate purpose for this law to be constitutional. Someone has gone bankrupt before from interstate online gambling, and it might happen again, so there is a legitimate purpose (at least if the courts don't depart from their precedent).


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What I was getting at there was because the bill explicitly does not pre-empt any state laws, that state laws feasibly allowing online gambling are therefore no longer dealing with Congress regulating interstate commerce but rather a states rights issue. The correlation is that in the case there was a direct benefits versus gains analysis in the judicial opinion.

As for the someone has gone bankrupt online; argument can be made in the VAWA case as women have died and adversely affected interstate consumption. The VAWA law was striked unconstitutional setting moreso the precedent that there needs to be a direct economic base but not to be completely determined by Congress, but reviewed by the judicial system as well. The dissenting opinion was that Congress makes informed decisions and that they heard testimony of experts, etc.

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Another perspective, under the equal protection clause, disparate treatment of online poker is irrational. People who can gamble on horses online absolutely should have the ability to gamble on poker online. There is no rational connection between banning poker and legalizing online horse gaming. This classification is unconstitutional; for example if there were a law stating that non caffeine based carbon beverages are allowed to be contained in glass bottles while caffeine based carbonated beverages are not allowed to be produced with glass bottles; this would be illegal. This is much to the same degree of poker being illegal online and horse racing being legal.

Both of these present the same societal threat/risk yet one is given completely different regulation.

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People get equal protection, not forms of gambling or soft drinks. If there was a legitimate reason to not bottle carbonated beverages in glass (like they explode when heated and injure people), then Congress could pass a law banning carbonated beverages in glass, while allowing non-carbonated beverages in glass. Only if there the court finds that there is no legitamate reason, would it be unconstitutional.

Poker players are not a class of people that receive equal protection. It is theoretically possible that the Supreme Court could rule that they are, but I'd bet my testicles that they won't.

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My contestment here is that A: there is no perceived risk between caffeine and noncaffeine drinks so the law wouldn't be constitutional. (NO LEGITIMATE REASON ARGUMENT) The argument I then have is that there is an argument to be made for the legitimacy of banning online gambling versus B&M gambling as they both have potentially the same risk. The other legitimacy issue is the allowance of horse racing online versus online poker. The idea is that there is no legitimate reason to A: Distinct between the two, and B: the consequences for both are the same.

[maurile]

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No, it's actually quite clearly unconstitional to anyone who actually reads the Constitution and studies the Founders' original intent, lawyer or no. It's only constitutional if you buy into the BS misinterpretations of the Constitution that our government uses on a regular basis or completely ignore original intent. Of course, as it's a lawyer's job to exploit the law for their benefit, most of them are going to respect the way our government exploits the Constitution.

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You are barking up the wrong tree. I support a limited reading of the Commerce Clause as much as anyone this side of Richard Epstein.

I think Gonzalez v. Raich was a brain-dead decision.

But Supreme Court precedent is Supreme Court precedent, and the UIGEA is way more constitutional -- even under a very narrow reading of the Commerce Clause -- than 95% of all federal legislation being passed these days.

It's just not realistic to challenge the UIGEA under the Commerce Clause.

[maurile]

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The argument I then have is that there is an argument to be made for the legitimacy of banning online gambling versus B&M gambling as they both have potentially the same risk. The other legitimacy issue is the allowance of horse racing online versus online poker. The idea is that there is no legitimate reason to A: Distinct between the two, and B: the consequences for both are the same.

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You would be onto something if gamblers or poker players were a protected class. Then laws regarding gambling or poker-playing would have to be narrowly tailored to achieve their purpose.

But we are not a protected class.

Congress is perfectly free to outlaw poker without outlawing horse racing. It just needs to show that poker is evil. It does not have to show that poker is more evil than horse racing. There's no requirement that Congress's laws on the subject cannot be overinclusive or underinclusive of their purpose. They just have to have a rational basis, and the rational basis for outlawing poker is that poker is evil. Any comparison to horse racing is irrelevant.

(Not that Congress is outlawing poker. I'm speaking hypothetically. What Congress is outlawing is payments to unlawful websites.)

[Mendacious]

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No, it's actually quite clearly unconstitional to anyone who actually reads the Constitution and studies the Founders' original intent, lawyer or no. It's only constitutional if you buy into the BS misinterpretations of the Constitution that our government uses on a regular basis or completely ignore original intent.

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LOL you mean it is unconstitutional if one were to ignore 100 years of precedent?