Although many would argue that the Obama Administration engaged in an abundance of federal overreach, two landmark developments unfolded in its second term that deferred heavily to states’ rights, resulting in the legalization of activities that had long been considered “vices” by critics. One was of course recreational marijuana use, for which favorable legislation was passed in multiple states. The Department of Justice officially declared it would not enforce federal laws prohibiting the substance, thereby tacitly providing those states the ability to fully implement the majority’s wishes in their jurisdictions.
December 2011 DOJ Legal Opinion
The second such instance was the Department of Justice Office of Legal Counsel’s official legal opinion issued in December 2011, which stated that the 1961 Federal Wire Act was only intended to prohibit sports betting in electronic fashion and not casino gaming, lotteries or poker. This immediately provided states the authority to introduce legislation to legalize and regulate online gambling if they so wished to, an endeavor that has been successfully undertaken by three — New Jersey, Delaware and Nevada — and that several others are currently pursuing. Additionally, the DOJ’s legal opinion led to four states — Michigan, Illinois, Georgia and Kentucky — eventually rolling out online lotteries.
RAWA (Restoration of America’s Wire Act)- Its History and Its Current Relevance
Naturally, this decision has been met with opposition from a variety of conservative and anti-gambling groups over the years, most notably by Senator Lindsey Graham (R-South Carolina), who introduced the RAWA (Restoration of America’s Wire Act) bill without success in 2015 with the backing of billionaire casino magnate Sheldon Adelson. That legislation, if passed, would have immediately banned online gaming at the federal level, without any exemptions for the trio of aforementioned states that had already legalized the activity.
Graham and the RAWA came back into the limelight during current Attorney General Jeff Sessions’ Senate confirmation hearings, when Graham pointedly asked Sessions about his stance on the DOJ’s 2011 opinion. Sessions, while conceding he was surprised by that decision and admitting he was opposed to it at the time, ultimately deferred to potentially “revisiting” the matter as the Attorney General and making a decision based on “careful study” of the matter.
Preemptive Action by New Jersey
While the predominant view by online gaming industry observers is that Sessions is unlikely to reverse course on a matter that has already set off a significant chain of events in multiple states, there is some concern that the subject came up during hearings, particularly since Sessions’ response appeared to at least leave the door cracked open to a potential problem down the road. Notably, New Jersey has already taken preemptive action on that front, with Assemblyman Vincent Mazzeo sponsoring New Jersey Resolution 137 (AJR 137), a piece of proposed legislation that “urges United States President Trump, members of his administration, and Congress to oppose measures and actions to prohibit states from authorizing and conducting Internet gaming.”
With respect to his personal voting record on the issue of internet gaming, Sessions, a long-time Senator, backed a RAWA predecessor in 1997 entitled the Internet Gambling Prohibition Act, although he ultimately did not co-sponsor the bill. He also declined to put his name on the RAWA legislation and has not said much of anything publicly about the issue of online gaming since 1998. Sessions votes on other issues have also often fallen on the side of states’ rights, certainly an encouraging sign overall.