Do “bad actor” clauses violate the U.S. constitution?

The question of ‘bad actors’ – companies that continued to service the US market after the UIGEA passed in 2006 – has been at the heart of debate around online poker legalisation proposals recently, particularly in the political and tribal maneuvering in California, where two bills are currently before the Legislature (see previous reports).

It’s an issue in which Pokerstars and Full Tilt Poker parent the Rational Group have an interest, having paid hundreds of millions in settlements with the US Department of Justice and formed an alliance with the California-based Morongo tribes and leading commercial card rooms in the state.

In the latest development, a distinguished – and independent – Harvard law professor Laurence H. Tribe’s assessment of the validity of bad actor provisions in the two Californian legislative proposals will give Rational encouragement.

The learned academic says that, if challenged, “bad actor” clauses are unlikely to survive an attack based on federal constitutional grounds.

The Constitutional Law professor names three areas where “bad actor” provisions could be effectively defeated:

* Such clauses qualify as constitutionally prohibited “bills of attainder” – a class that “legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial,” otherwise known as trial by legislature.

* The December 31, 2006 cut-off date used in the California bills is arbitrary and discriminates against Pokerstars in a commercial protectionism sense under the Constitution’s Equal Protection Clause.

* The Californian proposals trigger serious constitutional issues in an intellectual property sense, prejudicing Pokerstars’ IP in California through restriction and contravening the Takings Clause in the federal constitution.

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