Paul Clement, the former U.S. Solicitor General under President George W. Bush, has raised a few significant issues regarding the Constitutionality of the first federal online gaming bill, as drafted by Senators Harry Reid (D-NV) and Jon Kyl (R-AZ). Under the current bill, there is a requirement that those online entities that had been providing online gaming services to US citizens, and processing their bets, prior to the bill becoming law serve out a probationary period of 540 days before they could receive a license.
Clement argues that this requirement renders the bill unconstitutional because it amounts to a bill of attainder and violates the due process rights of the entities put on probation. A “bill of attainder” is an act of a legislature that declares a person or group of persons guilty of some crime and punishes them without privilege of a judicial trial.
Clement also argues that the broad claim of authority made by the federal government in the bill would likely violate various states’ rights.
It should be noted that the bill in question is still in draft form, and will likely be amended regardless of the concerns raised by Clement. Given the stakes, the eventual outcome of the amendment process, and the ability to resolve the Constitutional questions at hand, will be of the utmost importance for gaming attorneys and those interested in Internet poker law in general.