TRIBE: CA's BAD ACTOR Provisions Likely VIOLATE the U.S. CONSTITUTION: WORSE than a TEAM NICKNAME

Legal Analysis of I-Poker Legislation by Harvard University Constitutional Law Professor Laurence H. Tribe

Laurence H. Tribe, Professor of Constitutional Law at Harvard Law School and one of the foremost U.S. constitutional scholars, has concluded that the “bad actor” provisions in two proposed iPoker bills in the California Legislature likely violate the U.S. Constitution.

Following a thorough legal analysis of Senate Bill 1366 (Correa) and Assembly Bill 2291 (Jones-Sawyer), Prof. Tribe concluded that both proposed bills are unlikely to survive a Constitutional challenge on several grounds. Among Prof. Tribe’s conclusions:

Constitutionally prohibited Bill of Attainder:

* The Senate and Assembly bills both contain provisions clearly designed to exclude readily identifiable (even though not expressly named) entities such as PokerStars from the California online poker market. These provisions fly in the face of the U.S. Constitution’s command that “[n]o State shall … pass any Bill of Attainder.”

* Under settled principles, a law is an unconstitutional bill of attainder if it “legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” The Framers drafted the Bill of Attainder Clause as “a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.”… It is indisputable that S.B. 1366 and A.B. 2291 exclude certain former Internet poker providers from California’s intrastate Internet poker market without any judicial trial.

* My conclusion is that both proposed bills are, and would probably be found by a court  to be, constitutionally prohibited bills of attainder.

Unconstitutional Takings

* The bills also restrict the ability of entities like PokerStars to use their existing property, raising serious problems under the Takings Clause.

* A court should also have little difficulty recognizing the harm to PokerStars’s intangible property – including harm that takes the form of rendering that property valueless as an object of sale or licensing to others – as actionable under the Takings Clause.

Equal Protection Violation

* … the Equal Protection Clause invalidates the Senate Bill’s strikingly arbitrary cutoff date—a date which has the unusual effect of excluding entities like PokerStars that are most established in the market.

* …the inapplicability of traditional rationales for the temporally inverted cutoff date, and the discrimination against a single out-of-state company all come together to create a significant prospect that a court could be persuaded to invalidate the cutoff date under the Equal Protection Clause.

Tribe concludes:

* Taking all these infirmities in the bills into account, I believe that they should not, and would not, survive federal constitutional attack.