Opinion analysis: Justices strike down federal sports gambling law (Updated)

The 10th Amendment provides that, if the Constitution does not give a power to the federal government or accept that power away from the states, that power has been reserved for the states or the people themselves. The Supreme Court has interpreted this provision to bar the federal government from”commandeering” the countries to enforce national laws or laws. Now the justices ruled that a federal law which bars states from legalizing sports gambling violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on topics which range from the decriminalization of marijuana to sanctuary cities.
The federal law at issue in the case is the skilled and Amateur Sports Protection Act, which dates back to 1992. The law, called PASPA, bans most states from (among other things) authorizing sports betting; it carved out an exception which would have permitted New Jersey to establish a sports-betting strategy in the state’s casinos, provided that the state failed within a year. But it required New Jersey 20 years to behave: In 2012, the state legislature passed a law that legalized sports gambling.
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The National Collegiate Athletic Association and the four major professional sports leagues went to court, arguing that the 2012 law breached PASPA. The lower federal courts agreed, prompting the New Jersey legislature to go back to the drawing board. In 2014, it passed a new law which rolled back existing bans on sports betting, at least since they applied to New Jersey casinos and racetracks. The NCAA and the championships returned into court, asserting that the law also violated PASPA, and the U.S. Court of Appeals for the 3rd Circuit again ruled against the state.
The Supreme Court agreed to look at that the nation’s constitutional challenge to PASPA, and today the court reversed. In a determination by Justice Samuel Alito, the court began by describing the”anticommandeering doctrine may seem arcane, but it is simply the expression of a basic structural conclusion integrated in the Constitution” –“that the choice to withhold from Congress the power to issue orders directly to the States.” And that, the majority lasted, is exactly the issue with the provision of PASPA the state contested, which bars states from sports gambling: It”unequivocally dictates what a state legislature could and may not perform.” “It’s as if,” the majority suggested,”national officials were installed in state legislative chambers and were armed with the ability to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded,”is difficult to envision.”
The court rejected the argument, created by the leagues as well as the federal government, that the PASPA provision barring states from sports betting doesn’t”commandeer” the states, but instead merely supersedes any state laws that conflict with the supply — a legal doctrine called pre-emption. Pre-emption, the majority explained,”is based on a federal law that regulates the conduct of private actors,” but here”there is simply no way to comprehend the provision forbidding state authorization as anything other than a direct control to the States,” that”is just what the anticommandeering principle does not allow.”
Having determined the PASPA provision barring states from sports betting is unconstitutional, the bulk then turned to the question which followed by that conclusion: Should the remainder of PASPA be broke down as well, or will the law survive without the anti-authorization provision? In legal terms, the query is known as”severability,” and now six of the seven justices — Alito along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch — who agreed the PASPA anti-authorization provision was unconstitutional also concurred that the whole law ought to fall. They reasoned that, if the bar on countries authorizing or licensing sports betting had been invalid, it would be”most unlikely” that Congress would have wanted to continue to prevent the states from conducting sports lotteries, which were regarded as”far more benign than other forms of gambling.” In the same way, the majority posited, if Congress had known that the pub on state authorization or operation of sports betting will be struck down, it wouldn’t have desired that the parallel ban on the operation of sports-betting strategies by private entities to continue. The PASPA provision barring the promotion of sports gambling met the same fate; otherwise, the court explained,”federal law could prohibit the promotion of an activity that is legal under both state and federal law, and that is something that Congress has seldom done.”
The majority acknowledged that the question of whether to legalize sports betting”is a contentious one” which”requires an important policy choice.” But that decision, the majority continued,”is not ours to make. Congress can control sports gambling directly, but if it elects not to do so, each State is free to act on its own.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of this court’s ruling but instead on a rather subjective legal question: the viability of the court’s present severability doctrine. Thomas made clear that he joined the majority’s decision striking down most PASPA because”it gives us the ideal response it could to this query, and no party has requested us to apply another test.” But he proposed that the court ought to, at some stage later on, rethink its severability doctrine, which he characterized as”dubious.” To begin with, he observed, the doctrine is contrary to the tools that courts normally use to translate laws since it requires a “`nebulous query into hypothetical congressional purpose,”’ teaching judges to attempt to figure out exactly what Congress would have wanted to do if part of a law violated the Constitution, when”it appears improbable that the enacting Congress had any intention on this question.” Second, he continued, the philosophy”often requires courts to weigh in on statutory terms that no party has” a legal right to challenge.
Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg did not elaborate on her apparent decision (combined in total by Justice Sonia Sotomayor) which PASPA’s pub on the consent of sports betting from the nations does not violate the Constitution. Instead, she argued (also with assistance from Justice Stephen Breyer) that, even if PASPA’s anti-authorization provision is unconstitutional, the rest of the law ought to remain in force. “On no rational ground,” Ginsburg emphasized,”is it concluded that Congress would have chosen no statute at all if it could not prohibit States from authorizing or licensing these schemes.”
New Jersey has long estimated that allowing sports betting could revive the state’s struggling racetracks and casinos. In March of this year, ESPN estimated that if New Jersey were to win, the state could have legal sports gambling by the time football season kicks off in the autumn; almost two dozen other nations are also considering bills that would enable sports betting. The financial impact of allowing sports betting cannot be understated: Legal sports gambling in Las Vegas takes in over $5 billion annually, and many estimates place the value of illegal sports betting in the USA at around $100 billion.
Today’s ruling may also have a much broader reach, possibly affecting a range of topics that bear little resemblance to sports betting. For instance, supporters of so-called”sanctuary cities” — towns that refuse to cooperate with federal immigration officials to enforce immigration laws — have mentioned the 10th Amendment in late challenges to the national government’s attempts to implement states on grants for local and state law enforcement. Challenges to the federal government’s recent attempts to enforce federal marijuana laws in states that have legalized the drug for either recreational or medical use might also be based on the 10th Amendment.