Gambling ban and judicial review

[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]

[ QUOTE ]

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.)

[/ QUOTE ]

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]

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

[/ QUOTE ]

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.)

[/ QUOTE ]

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.