State Law and the Unlawful Online Gambling Act

[Patriot76]

New article at Card Player

http://www.cardplayer.com/poker_news...lass=PokerNews

I see one HUGE mistake/misconception blaring out at me. She states "There is also a federal constitution that all citizens of the United States must follow. (The federal Constitution and the U.S. Constitution mean the same thing.) We are each subject to both the laws of our state and federal laws."

WRONG!!! I am uncertain about State Constitutions, but the U.S. Constitution does NOT tell the people what they can or cannot do. It tells the GOVERNMENT what it can and cannot do. END OF STORY. Why do you think certain ammemdments begin with "CONgress shall make NO law..." (If they had of just stopped right there we all would be alot better off!)

[Phil153]

Well, she finally covered one of the most important issues which she completely missed in her last "analysis". But again, she misses the point.

[ QUOTE ]
In sum, the 2006 Enforcement Act does make it a felony...but since all gaming sites are located outside of the jurisdiction of the United States, this portion of the law is, in all practical terms, unenforceable.

[/ QUOTE ]

Right, so US law is unenforceable in "all practical terms". That's why the government has never arrested a foreign sportsbook executive for breaking the Wire Act.

Crap like this is exactly why I never read Cardplayer. Her analysis of the legal issues is obviously correct, but she completely fails to understand their practical effects (just as she completely failed to address the important issue of state laws in her last article).

Bottom line: if you want informed opinion, don't read Card Player.

[Colonel Kataffy]

[ QUOTE ]
New article at Card Player

http://www.cardplayer.com/poker_news...lass=PokerNews

I see one HUGE mistake/misconception blaring out at me. She states "There is also a federal constitution that all citizens of the United States must follow. (The federal Constitution and the U.S. Constitution mean the same thing.) We are each subject to both the laws of our state and federal laws."

WRONG!!! I am uncertain about State Constitutions, but the U.S. Constitution does NOT tell the people what they can or cannot do. It tells the GOVERNMENT what it can and cannot do. END OF STORY. Why do you think certain ammemdments begin with "CONgress shall make NO law..." (If they had of just stopped right there we all would be alot better off!)

[/ QUOTE ]

Not the end of story. The constitution gives the federal gov. all kinds of power to tell people what they can and cannot do. Read Gonzales v. Raich.

[PairTheBoard]

[ QUOTE ]
In sum, the 2006 Enforcement Act does make it a felony for an owner or operator of a site to accept money for gambling where it is already illegal (ie Washington), but since all gaming sites are located outside of the jurisdiction of the United States, this portion of the law is, in all practical terms, unenforceable.


[/ QUOTE ]

She claims the law is unenforceable while completely ignoring that part of the bill expressly designed to enforce it. That is the prohibition against Transfer of Funds to such sites "located outside of the jurisdiction of the United States". Ms Shulman is just not credible.

PairTheBoard

[permafrost]

All States have existing laws that say that gambling is unlawful (they may give exceptions). She ignores this.

No State has excepted Internet gambling or existing online poker, so it is unlawful. In fact it is the "unlawful gambling" referred to in the UIGEA, which has added new penalties.

Her stance that Internet gambling is legal if a State hasn't specifically outlawed it, is very weak in my opinion. It may be the only hope she sees.

[Wynton]

[ QUOTE ]
All States have existing laws that say that gambling is unlawful (they may give exceptions). She ignores this.

No State has excepted Internet gambling or existing online poker, so it is unlawful. In fact it is the "unlawful gambling" referred to in the UIGEA, which has added new penalties.

Her stance that Internet gambling is legal if a State hasn't specifically outlawed it, is very weak in my opinion. It may be the only hope she sees.

[/ QUOTE ]

Well, I don't think it follows that internet gambling is illegal under the State laws unless they have specifically exempted it. I believe that legitimate arguments can be made that the state laws can be interpreted so as NOT to cover the internet. I'm not predicting those arguments will prevail, but I don't think those arguments are frivolous either.

My real objection to her analysis is that she - like many others - analyze this issue as if all state laws are the same (or in assuming that courts in all states will reach the same interpretation). There is no reason to assume that each state court will reach the same interpretation about their respective statutes.

[TruePoker CEO]

"Bottom line: if you want informed opinion, don't read Card Player."

I doubt that Phil and I will agree on much else, but I would not rely on CardPlayer for informed analysis. It is pretty much a random hit or miss in their legal columns. There are many more informed and literate legal counsel available to the magazine to cover important topics like these. It is a shame they publish these vanity pieces instead.

[AlexM]

[ QUOTE ]

Not the end of story. The constitution gives the federal gov. all kinds of power to tell people what they can and cannot do. Read Gonzales v. Raich.

[/ QUOTE ]

No, the Supreme Court gives them that power through willful misinterpretation of the Constitution. Thomas was the only Justice who ruled correctly.

[maurile]

[ QUOTE ]
My real objection to her analysis is that she - like many others - analyze this issue as if all state laws are the same (or in assuming that courts in all states will reach the same interpretation). There is no reason to assume that each state court will reach the same interpretation about their respective statutes.

[/ QUOTE ]
I don't think anything in her analysis depends on the assumption that all state laws are the same. Her conclusion is that state laws are, as a practical matter, not enforceable against foreign businesses.

She may not be right about that. But whether she is or isn't doesn't seem to depend on the content or construction of any particular state law. It has to do with jurisdictional issues, extradition, and so on.

IMO, the deficiencies in her article are (a) the failure to address the effect of voluntary compliance with U.S. laws by businesses such as PartyPoker and Firepay; and (b) the failure to address whether and to what extent the forthcoming regulations will prohibit payments to intermediaries such as Neteller.

[permafrost]

[ QUOTE ]
[ QUOTE ]
All States have existing laws that say that gambling is unlawful (they may give exceptions). She ignores this.

No State has excepted Internet gambling or existing online poker, so it is unlawful. In fact it is the "unlawful gambling" referred to in the UIGEA, which has added new penalties.

Her stance that Internet gambling is legal if a State hasn't specifically outlawed it, is very weak in my opinion. It may be the only hope she sees.

[/ QUOTE ]

Well, I don't think it follows that Internet gambling is illegal under the State laws unless they have specifically exempted it. I believe that legitimate arguments can be made that the state laws can be interpreted so as NOT to cover the internet. I'm not predicting those arguments will prevail, but I don't think those arguments are frivolous either.

My real objection to her analysis is that she - like many others - analyze this issue as if all state laws are the same (or in assuming that courts in all states will reach the same interpretation). There is no reason to assume that each state court will reach the same interpretation about their respective statutes.

[/ QUOTE ]


You agree that exisitng state laws make gambling unlawful but playing over the internet might change something. I would like to hear the legitimate arguments that could lead to internet gambling having been and remaining lawful.


If a State does declare there is no "unlawful Internet gambling", what exactly is the panic here since the new act won't apply? Existing Federal laws and this pending UIGEA assume illegal acts, no?


I would be pleasantly surprised if any State somehow decides that their current law fails to cover Internet gambling. Agreed, various States might say a better law is needed or use different paths to arrive at their conclusion.