Monday, September 27, 2010
The Washington Supreme Court last week unanimously upheld the state's ban on internet gambling against a Dormant Commerce Clause challenging, ruling that the ban was not "clearly excessive" in relation to legitimate state interests.
The case, Rousso v. State of Washington, involved a Washington statute that criminalizes "the knowing transmission and reception of gambling information by various means, including use of the Internet." The plaintiff, a Washington would-be gambler, claimed that the statute discriminated against out-of-staters in its effects and that Washington could have achieved its objectives by merely regulating, not completely banning, internet gambling.
The high court disagreed. In an opinion chock full of deference to the legislature and liberally laced with separation-of-powers and institutional competence concerns, the court ruled that the ban did not discriminate against out-of-staters, either on its face or in effect. It thus applied the familiar test that an evenhanded law does not violate the Commerce Clause if (1) there is a legitimate state purpose and (2) the burden imposed on interstate commerce is not "clearly excessive" in relation to the law's benefit.
Here, the state was concerned about gambling addiction, underage gambling, money laundering, and organized crime--clearly legitimate state purposes. The court ruled that the ban was not "clearly excessive" because any lesser action--regulation of internet gambling, e.g.--would be unduly burdensome and would not similarly achieve the benefits of the ban. Even though the state regulates, not bans, "brick and mortar gambling operations," similar state regulation of internet gambling "would be an interstate-commerce burdening nightmare."
The court found Minnesota v. Clover Leaf Creamery Co. instructive:
There the Minnesota legislature banned the retail sale of milk in plastic nonreturnable, nonrefillable containers because they presented a solid waste management problem, caused energy waste, and depleted natural resources. Other nonreturnable, nonrefillable containers, such as ones made from paperboard, raised similar concerns but were not banned. . . .
Even though plastic and paperboard nonreturnable, nonrefillable containers caused the same ultimate ills, the Supreme Court . . . held the ban on plastic containers, which still permitted paperboard containers, was consistent with the dormant commerce clause.
Similarly, here "both brick and mortar gambling and Internet gambling pose many of the same threats to citizens' health, welfare, safety, and morals, yet only the latter is banned."