Representative Gohmert's Tenth Amendment anomaly

Rep. Louie Gohmert (R-Texas) has a long history of supporting the Constitution, particularly the Tenth Amendment, but his recent decision to support a federal ban on a state's ability to legalize and regulate online gaming is inconsistent with his record.   His decision has left supporters of the conservative stalwart scratching their heads.

The  Tenth Amendment  is the cornerstone of federalism itself.   Stating, "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," the amendment gives individual states the right to govern their own affairs.

Don't like your state's laws?   Simply move to another state with more favorable laws.   This principle allows American citizens to govern themselves on the smallest possible level, with the most freedom, and is crucial to a functioning federalist government.

Rep. Gohmert has long been a champion of federalism – a record inconsistent with his December 2017  letter  to Deputy Attorney General Rod Rosenstein, urging the Department of Justice (DOJ) to overturn nearly a dozen state laws allowing online gaming and the sale of lottery tickets online.

The letter states, in part, "[In] 2011, the Justice Department Office of Legal Counsel issued a legal opinion overturning 50 years of interpretation of the federal Wire Act and opening the door to online casinos."   In conclusion, "we urge that the OLC Opinion be withdrawn to stop the spread of online casinos across the country."

The issue surrounding the Wire Act has long been litigated and investigated.   For a number of years, the DOJ improperly claimed that it has the authority to ban states from legalizing online casino games.   It is clear, both from the wording of the Wire Act and its legislative history, that the law was intended to prohibit sports betting and sports betting only.   In response to a court decision, the DOJ properly relinquished this claim in 2011.

New Jersey and three other states have legalized online gaming for their citizens.   Other states, in response, legalized the sale of lottery tickets online.   Perhaps seeing this as a threat to his business empire, casino mogul and GOP contributor Sheldon Adelson unleashed a lobbying effort to have these state laws overturned.  

Based upon his record, Rep. Gohmert should be expected to champion the ability of states to set their own rules.   In 2011, for instance, Rep. Gohmert opposed a medical malpractice reform bill addressing tort reform  on Tenth Amendment grounds, although he expressed that he wasn't opposed to tort reform.

"[T]he right of the states for self-determination is enshrined in the 10th Amendment," Rep. Gohmert told  Politico, proclaiming, "I am reticent to support Congress imposing its will on the states by dictating new state law in their own state courts."

In another example, Rep. Gohmert wrote from a Tenth Amendment basis in 2014, expressing that the Affordable Care Act (ACA) is unconstitutional.

"The Tenth Amendment foundation upon which the Supreme Court struck down one portion of Obamacare rests upon an earlier ruling that the federal government cannot "compel" a state, as an independent sovereign in our country's federal system, to regulate," Rep. Gohmert  wrote.

Furthermore, Rep. Gohmert quoted the 1937 ruling  Steward Machine Co. v. Davis, writing, "[W]hen 'pressure turns into compulsion,' the legislation runs contrary to our system of federalism."   Excellent points in favor of preserving the letter and spirit of the Tenth Amendment.

Unfortunately, Rep. Gohmert of 2017 is now at odds with his support of the Tenth Amendment, and it's anyone's guess whether the Rep. Gohmert of 2018 will reverse this anomaly.

Leave the decision on online gambling to the states.   It's what the Tenth Amendment demands –  and the Tenth Amendment does not contain an exemption for gambling laws.