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Supreme Court’s Sports Betting Case Could Redefine Relationship between Feds and States

Ilya Shapiro

While everyone’s focused on the Colorado baker who chose not to
make a cake for a same-sex wedding, whose case the Supreme Court
hears Tuesday, an equally colorful case to be argued the day before
will likely have broader impact on American governance. Chris
Christie v. National Collegiate Athletic Association
sports betting in New Jersey, of all things, and it could have
ramifications for the regulation of everything from marijuana and
guns to immigration and health care.

Anyone who knows anything about the American system of
government knows that Congress can’t force states to do its
bidding. If the Drug Enforcement Agency wants local sheriffs to
enforce federal drug laws, it has to sign cooperation agreements
with them. If U.S. Immigration and Customs Enforcement wants state
troopers to implement new immigration priorities, it’s welcome to
bribe them offer financial incentives, but can’t order them
to do so.

The case involves sports
betting in New Jersey, of all things, and it could have
ramifications for the regulation of everything from marijuana and
guns to immigration and health care.

States are separate sovereigns that deserve as much respect as
the federal government. They work with the federal sovereign all
the time on various matters, but they can’t be compelled to
do so. The technical legal term for this principle is that the
Constitution forbids Congress from “commandeering” the
states, as the Supreme Court explained in New York v. United
(1992) and Printz v. United States (1997).

What the Supreme Court Says about

New York involved a federal law purporting to require
states to either regulate nuclear waste according to federal
standards or take possession of it. Printz concerned a
federal law that would’ve required state officials to perform
background checks on gun buyers. These precedents are so clear that
the Supreme Court hasn’t taken any follow-up cases in the two
decades since.

Indeed, the closest case was probably the constitutional
challenge to Obamacare, National Federation of Independent
Business v. Sebelius
—not the individual-mandate part,
but the 7-2 ruling that the Affordable Care Act can’t force
states to expand Medicaid or lose all federal health funding. But
that aspect of NFIB concerned coercive conditions on
federal funds, which Chief Justice John Roberts likened to “a
gun to the head,” not out-and-out congressional commands.

That brings us to the Professional and Amateur Sports Protection
Act (PASPA). Congress enacted PASPA in 1992 to effectively outlaw
sports gambling. The law has exceptions for the sports lotteries in
Delaware, Montana, and Oregon, the licensed pools in
Nevada—Las Vegas sports books—as well as pari-mutuel
betting on horses, dogs, and jai alai. It also had a one-year
window for states with long-time casino gambling to legalize sports
betting, a carve-out clearly designed for the Garden State.

New Jersey’s boat missed that safe harbor, however, as the
state legislature didn’t get around to passing its Sports
Wagering Act until 2011—after a referendum showed that a
large majority of residents wanted to get in on the action. This
state law authorized regulated sports betting at casinos and

The NCAA and the four major professional sports leagues sued and
were granted an injunction against the New Jersey law. The U.S.
Court of Appeals for the Third Circuit affirmed, holding that the
Sports Wagering Act violated PASPA’s prohibition against a
state’s authorizing sports betting, but also adding that
nothing in PASPA’s text “requiresthat the
states keep any law in place.”

Accordingly, New Jersey passed a new law in 2014 that repealed
essentially all state bans on sports betting at casinos in Atlantic
City and racetracks throughout the state. When this second
legalization effort was also challenged, the Third Circuit
abandoned its previous distinction between
“authorization” and “repeal,” again
deciding in the NCAA’s favor.

But how can this be? According to the lower courts, New Jersey
is forced to maintain laws that its elected officials had acted to
eliminate. This appears to be an obvious violation of the Tenth
Amendment, which says that states and the people retain all powers
not delegated to the federal government, and the anti-commandeering

This Is a Catch-22 Against States’

Indeed, as the Supreme Court held in New York (the same
year PASPA was enacted), “the Constitution has never been
understood to confer upon Congress the ability to require the
States to govern according to [its] instructions.” Yet PASPA
does just that by dictating what states’ own sports-betting
laws shall be. If the Constitution forbids Congress from compelling
states to enact or enforce federal laws, it can hardly countenance
congressional compulsions to continue administering old state laws
after they have proven ineffective, unpopular, or both.

In effect, the feds are saying that New Jersey officials and
voters have no say in the state’s own gambling laws, because
any reform would “authorize” actions that violate
federal law. This argument goes beyond even the federal
government’s approach to marijuana; while Congress maintains
the federal ban through the Controlled Substances Act, the Justice
Department has never sued states to prevent them from legalizing
medical or recreational marijuana as a matter of state law.

In Christie v. NCAA, the Supreme Court can clear all of
this up. That’ll be a big deal for sports gambling, which a
bipartisan majority of Americans support legalizing. Seventy percent support allowing the people of
each state to decide the issue. But it’ll be an even bigger
deal for our entire conception of the relationship between
governments in this era of increased pushback by both red and blue
states against the dictates of the Washington swamp.

Ilya Shapiro
is a senior contributor to The Federalist. He is a senior fellow in
Constitutional Studies at the Cato Institute and Editor-in-Chief of
the Cato Supreme Court Review.