Legal Precedent - Unconstitutional

[dxu05]

In Dean MilkCo. Vs Madison & Gratiot Sanitary vs. Michigan, both cases involved protectionism of state commerce vs burden on interstate commerce. The current poker legislation has strong standings of protectionism of interstate commerce vs international commerce. In Gratiot Sanitary, the consensus was that protectionism is illegal, as well as the burden put on interstate commerce was illegitimate; they discriminated between solid waste outside of the state versus solid waste inside of the state. The case law was that Michigan passed an act that landfills cannot accept trash from outside the state otherwise their license is revoked. It was then brought to the supreme court and the finding was that solid waste was clearly being discriminated against and that there was no valid factor other than economic protectionism.

In the case of Poker Company XXX versus US, gambling is what is being regulated. International protectionism has no precedent as tarriffs and special taxes on imported goods is legal. Within a state, if states can legalize internet gambling since the port defense bill does not overlap any state laws, then online poker can be legal. Online poker, if not a game of skill, is a game of chance/gambling. If so, it is a regulated source of interstate commerce. This offends interstate economic protectionism as other forms of similar gambling (horseracing) are allowed to be interstate commerce rights; in the words of Justice Stevens, there is no demonstrably justified valid factor unrelated to economic protectionism.

At the same time, this was due to the aspect of the Commerce clause that prohibits STATES for advancing their own commercial interest, much could be said however to make the argument that Congress can not/should not advance certain states own commercial interest in equality of gambling for games of chance.

What do you think; I'm still doing research but I honestly believe the precedent is there.

[2461Badugi]

The problem with this is there's no international constitution for it to be prohibited by. Nor is there an international court with similar powers over the US as the US Supreme Court has over the states.

[BluffTHIS!]

Check out:

US v. Lopez
US v. Morrison
Gonzales v. Raich

Unless the last one is overturned by the SCOTUS on another occasion, then we're SOL. That decision held that congress can prohibit a state from legalizing the growing and use of marijuana in its own borders for use by its own citizens, and that not allowing congress to impose its drug laws on the states would impede its regulation of interstate commerce. If they can justify that, then they can justify any regulation or prohibition of any form of commerce, the wishes of individual states notwithstanding.

Indeed, there would seem good reason to believe that prior to the passage of the UIGE, that state laws banning online gambling weren't constitutional (assuming the Wire Act doesn't give them sanction) as only congress has the power to regulate foreign commerce.

[dxu05]

Correct, which is why I don't tackle that aspect completely. The more questionable part is what if a poker company sets up in California and does Online poker within California. If it is defined as a game of skill then there are yet to be regulations for online games of skill, I believe I can still play chess on Yahoo.

If it is defined to be a game of chance, then in that case the bill is protectionism interstate between games of chance. Just like horseracing, poker would be a game of chance that is illegitimate interstate, but legitimate within a state. This constitutes unconstitutional interstate protectionism.

That withstanding, 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.

The case remains to be made.

[dxu05]

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Check out:

US v. Lopez
US v. Morrison
Gonzales v. Raich

Unless the last one is overturned by the SCOTUS on another occasion, then we're SOL. That decision held that congress can prohibit a state from legalizing the growing and use of marijuana in its own borders for use by its own citizens, and that not allowing congress to impose its drug laws on the states would impede its regulation of interstate commerce. If they can justify that, then they can justify any regulation or prohibition of any form of commerce, the wishes of individual states notwithstanding.

Indeed, there would seem good reason to believe that prior to the passage of the UIGE, that state laws banning online gambling weren't constitutional (assuming the Wire Act doesn't give them sanction) as only congress has the power to regulate foreign commerce.

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I believe the Gomez case is different because the act of growing Marijuana in general is illegal federally and statewide. Gambling within a state is legal, the wire act prohibits it however the general act of gambling is legal in many states. Thus, gambling is a legitimate industry of commerce, and not in the same class as growing Marijuana. Aside from that, we should examine the unique scenario of a poker company forming in California, allowing only californian residents to gamble seeing that it is a game of skill in California. Then what happens if someone from another state slips in?

[BluffTHIS!]

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I believe the Gomez case is different because the act of growing Marijuana in general is illegal federally and statewide.

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The only reason marijuana is illegal by federal law now is because of the Gonzales case, which gave the federal government the authority to make it illegal (as it had been), which was what was being challenged.


Personally I don't see how the commerce clause implies any ability of the federal government to totally prohibit commerce in a class of goods, but only to regulate same. However the court hasn't seen it that way.

[dxu05]

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I believe the Gomez case is different because the act of growing Marijuana in general is illegal federally and statewide.

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The only reason marijuana is illegal by federal law now is because of the Gonzales case, which gave the federal government the authority to make it illegal (as it had been), which was what was being challenged.
Personally I don't see how the commerce clause implies any ability of the federal government to totally prohibit commerce in a class of goods, but only to regulate same. However the court hasn't seen it that way.

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In US vs. Morrison the case was that result is that there needs to be a direct commerce base for the Commerce Clause to apply, dead women caused an indirect interstate commercial effect however did not justify being a direct commercial base. The Morrison case was also crux because it established that the judicial system determines the actual relativity to commerce that congressional laws have, not Congress. The dissenting opinion of Justice Souter & others was that Congress shows sufficient proof of experts to regulate as such.

The reason that Congress and the judicial system dont agree eye to eye is because that anything of consequence has some sort of EV effect. Anything that causes damage is always associated with a loss of value. As such, any action committed can arguably have an interstate commerce effect somewhere down the road. I agree with the judicial opinion that Congress can not be the ultimate decision on the substantial interstate economic effect of laws as such.

Back to Gonzales vs Raich, the argument that it wasn't interstate commerce since Raich and Monson consumed on their own. Due to Wickard vs Filiburn, self consumption is commerce which is why it allowed Congress to regulate.

The case here is different because it involves the legality of Congress to impose protectionism on interstate commerce; no one is saying this isn't interstate commerce.

The argument here is via online gambling versus gambling in terms of commercial discrimination. The other argument is via certain types of online gambling versus others being illegal. Online Gambling versus gambling can be arguably said to be different industries of trade; however horse racing and poker, if poker is a game of chance, is the same industry and therefore clearly a murky case of discriminatory protectionism of interstate commerce.

[2461Badugi]

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Correct, which is why I don't tackle that aspect completely. The more questionable part is what if a poker company sets up in California and does Online poker within California.

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UIGEA explicitly does not apply to intrastate gambling legal under the laws of the state in question.

[dxu05]

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Correct, which is why I don't tackle that aspect completely. The more questionable part is what if a poker company sets up in California and does Online poker within California.

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UIGEA explicitly does not apply to intrastate gambling legal under the laws of the state in question.

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That isn't my argument, my argument is that since thats a legal form of commerce, it's unfair protectionism - interstate.

[webmonarch]

Trying to knonk out the law with an interstate commerce argument is a complete non-starter. Actually, I think, constitutionally, there's no issue at all with it, or at least, no argument that has any legitimate chance of holding up.

The best (only?) chance is the WTO stance.