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The Case for Liberty: Banning Online Poker at the Federal Level is Unconstitutional

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To understand the current quagmire surrounding the Department of Justice (DOJ) actions against the four largest online poker web clients we must examine the history of poker and the law. The question on whether poker is a game of skill or a game of chance has already been decided by US tax court. The court case William E. Baxter Jr. v. United States established that filing tax returns as a professional poker player is legal because poker is a game of skill and can therefore be labeled a trade. This precedent has allowed professional poker players to deduct traveling expenses, hotel costs, and more from their winnings since 1986 declaring their income gained from a, “trade or business”. Baxter is a skilled poker player who has won seven World Series of Poker bracelets. The Nevada Judge ruling in favor of professional poker players had this to say,
“I find the government's argument to be ludicrous. I just wish you had some money and could sit down with Mr. Baxter and play some poker."
The Judge understood poker to be a game of skill and wagering on poker is similar to wagering on golf. Yes, it’s gambling, sometimes the better player may lose, but the best players will win over time. Another ruling in favor of poker players occurred in Pennsylvania where Justice Thomas James Jr. ruled,
“If you ask who are the top five poker players in the world, you will receive a meaningful response because skill is a determining factor. But if you ask who are the top five roulette players in the world, the response is utterly meaningless: roulette is purely a game of chance... The collective expert opinion is unequivocal: poker is a game of skill, and in the long run, a skilled player will beat an unskilled player... Poker is the one and only [card] game where a skilled player may hold bad cards for hours and still win the money."
In the realm of state gambling laws the test in determining whether a game is gambling or not is the Dominant Factor Test. The Dominant Factor Test is the principle most U.S. jurisdictions use in determining, legally, what is and not gambling. Under this principle it does not matter if a game has an element of chance or skill, but rather what the dominant factor in determining the outcome of the game. This principle allows tournament directors of golf tournaments, bowling leagues, and poker tournaments to collect an entry fee and award a prize without violating anti-gambling laws. The Dominant Factor Test principle is the grounds on which proponents for online poker have used in arguing the federal Unlawful Internet Gambling Enforcement Act (UIGEA) does not apply to online poker because poker, as opposed to games like roulette, is a game of skill making the legislation irrelevant. This understanding of poker as an exception to the UIGEA legislation has been the precedent on which sites, like Pokerstars, have continued operations for US players because of their exclusiveness in only offering Poker, unlike other gambling sites exclusively for foreigners that offer poker alongside games of chance like roulette and virtual slot machines.
I agree that poker is a game of skill that falls outside the UIGEA legislation banning Internet gambling; however, many in government, DOJ, and IRS, refuse to recognize this distinction and the current actions of the DOJ highlight this refusal of recognition. This refusal is not based in moral indignation, but politics. Politics has been intrinsic in this legislation from the beginning. Brick and Mortar casinos see online poker as a threat to their monopoly on poker games and donate heavily to politicians in both parties. Online poker ruled, as a game of chance would drive more traffic back to land based casinos.
This is all somewhat beside the point. Whether poker is ruled as a game of skill or not is only relevant at the state level. The UIGEA legislation cannot be used as a basis for prosecuting gamblers, poker players, or online poker site providers because it is simply unconstitutional. The very nature of government power is at stake here. Our constitution declares,
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Nowhere in the Constitution does it ban gambling or online poker; therefore, the legality of wagering one’s own money is strictly a states affair. If an individual state, for instance, Washington, declares Internet gaming illegal, then, it is illegal for the residents of Washington, but not for the residents residing in the other 49 states. This is the understanding on which online poker sites have operated for a while. It is this basic understanding of the constitution that makes the UIGEA legislation unconstitutional and the current actions of the DOJ to be illegal. The Tenth Amendment to our constitution protects our rights as individuals to our life and property. Do we still believe in individual liberty in the United States? Do we believe our money earned to be ours and done with as we please or is our money fundamentally the property of the government? Can the government ignore the constitution? Even if you are not a poker player the current actions undertaken by the Department of Justice violate our constitution. Defenders and advocates for our freedoms, constitution, and liberty should stand by poker players defending the constitution. The rulings of the court on this issue may lead to other unconstitutional government interventions. Why should upholding the rights of poker players be important to the liberty movement? I’ll end with a quote by Pastor Martin Niemoller,
First they came for the communists, and I didn't speak out because I wasn't a communist.



Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist.


Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.



Then they came for me
and there was no one left to speak out for me
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