- - Monday, December 14, 2015

Republican Congressman Jason Chaffetz of Utah is absurdly championing legislation that would summon the congressional power “to regulate commerce … among the several States” to impose a schoolmarmish ban on Internet gambling: the Restoration of America’s Wire Act (RAWA).

The U.S. Constitution’s authors never conceived the commerce clause would be so distorted to justify a sumptuary law reminiscent of the Puritans. The moral authority of Congress is zilch.

To chronicle the misbehavior of members will not be attempted as a concession to the shortness of life. But one recent example is informative. House Majority Kevin McCarthy (R-Ca.) withdrew his candidacy for House Speaker last October in the wake of a letter from Congressman Walter Jones to the House Republican Conference Chair stating: “With all the voter distrust of Washington felt around the country, I am asking that any candidate for Speaker of the House, majority leader, and majority whip withdraw himself from the leadership election if there are any misdeeds he has committed since joining Congress that will embarrass himself, the Republican Conference and the House of Representatives if they become public.”

The commerce clause was adopted to prevent protectionist trade wars among the states that were arresting national prosperity. Thus, the clause empowers Congress to “regulate” interstate commerce, not to prohibit it. No wealth is produced by blocking a transaction between a willing buyer and a willing seller. A national online gambling prohibition does not promote interstate commerce. It frustrates it.

The power to regulate interstate commerce was an addition to the powers the federal government exercised under the Articles of Confederation. It was not intended as an instrument to supersede customary state police powers over public morals or otherwise. James Madison, father of the Constitution, explained in Federalist 45: “The regulation of commerce … is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.”

It took the 1919 Prohibition Amendment to the Constitution — the 18th Amendment — to impose a national ban on alcohol. It could not have been done by Congress under the commerce clause. Prohibition misfired, and was repealed by the Twenty-First Amendment in 1933.

Mr. Chaffetz seems eager to repeat the folly of Prohibition through a tortured application of the commerce clause to forbid online gambling as a moral blot. The Congressman should remember his history. There was a time when Congress criminalized the Mormon religion in Utah because its precepts were thought contrary to public morals. Writing in Reynolds v. United States (1878), Chief Justice Morrison Waite maintained: “Polygamy has always been odious among the northern and western nations of Europe, and until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people … [W]e think it may be safely said there has never been a time in any State of the Union when polygamy has not been an offense against society …”

The commerce clause is extensive, but not limitless. Thus, Chief Justice John Roberts concluded in NFIB v. Sebelius (2012) that it did not authorize Congress to compel individuals to purchase health insurance. RAWA skates to the edge of the commerce power by banning online gambling within a single state.

Further, the case for RAWA is empty. Citizens in one state may travel to a sister jurisdiction for on-site gambling pursuant to a constitutional right to interstate travel and the privileges and immunities clause of Article IV. It provides that, “The citizens of each state shall be entitled to the privileges and immunities of citizens in the several states.” And the bacchanalia-like depravity associated with gambling at Sheldon Adelson’s The Venetian in Las Vegas compared with online gambling is as 50 to one. Online gambling would diminish, not augment, the nation’s moral sordidness index by reducing travelers to Mr. Adelson’s palatial dens of iniquity.

Having failed with a morality card, Mr. Chaffetz threw a terrorism card on the table during a hearing before the House Oversight and Government Reform Committee last week. An FBI official hypothesized that online gambling could be used to launder money for terrorism. But he proffered no evidence that such money laundering had ever occurred, had been attempted, or had been discussed in any of the phone or email communications intercepted daily by the National Security Agency too large to fathom. New York City real estate is also vulnerable to money laundering schemes to assist terrorism, but Congressman Chaffetz is not shouting to prohibit real estate sales there.

We all know the ulterior motive for the support Chaffez and his Senate counterpart, Lindsey Graham (R-S.C.), are giving to RAWA: a hope for handsome financial support from the billionaire casino mogul Mr. Adelson. If the two wish to know why popular support for Congress has plunged to single digits, they should look in the mirror.

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