The 10th Amendment provides that, if the Constitution doesn’t give a power to the federal government or accept that power away from the nations, 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 states to enforce national legislation or laws. Now the justices ruled that a federal law that bars states from legalizing sports gambling violates the anti-commandeering philosophy. Their decision not merely opens the door for countries around the country to permit sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary towns.
The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The legislation, known as PASPA, bans most nations from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, provided that the state failed within a year. However, it took New Jersey 20 years to behave: In 2012, the state legislature passed a law that legalized sports betting.
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The National Collegiate Athletic Association and the four major professional sports leagues went to court, asserting that the 2012 law violated PASPA. The lower federal courts agreed, prompting the New Jersey legislature to return to the drawing board. In 2014, it passed a new law that rolled back present bans on sports gambling, at least as they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned to court, arguing that the law also violated PASPA, and the U.S. Court of Appeals for the 3rd Circuit ruled against the state.
The Supreme Court agreed to look at the nation’s constitutional challenge to PASPA, and now the court reversed. In a decision by Justice Samuel Alito, the court began by explaining that the”anticommandeering doctrine may sound arcane, but it’s just the expression of a basic structural conclusion incorporated into the Constitution” –“that the choice to withhold from Congress the power to issue orders directly into the States.” And that, nearly all lasted, is precisely the problem with the supply of PASPA the state challenged, which bars states from sports gambling: It”unequivocally dictates exactly what a state legislature could and might not perform.” “It’s like” the majority indicated,”national officials were set up 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 not easy to imagine.”
The court rejected the argument, made by the leagues and the national authorities, the PASPA provision barring states from sports betting doesn’t”commandeer” the nations, but instead merely supersedes any state laws that conflict with the provision — a legal doctrine known as pre-emption. Pre-emption, the majority explained,”is based on a national law that regulates the conduct of private actors,” but “there is just no way to comprehend the provision forbidding nation authorization as anything other than a direct control to the States,” which”is just what the anticommandeering rule doesn’t allow.”
Having determined that the PASPA provision barring states from sports gambling is unconstitutional, the bulk then turned to the question that followed from that decision: Should the rest of PASPA be struck down too, or can the law endure without the anti-authorization provision? In legal terms, the query is known as”severability,” and today half the seven justices — Alito together with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch — who also consented the PASPA anti-authorization provision was unconstitutional also agreed that the entire law ought to collapse. They concluded 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 lotteriesthat were regarded as”far more benign than other kinds of gambling.” In the same way, the majority posited, if Congress had known that the bar on state authorization or performance of sports betting will be struck down, it wouldn’t have wanted the parallel ban on the operation of sports-betting strategies by private entities to continue. The PASPA provision barring the advertising of sports gambling met the exact same fate; otherwise, the court explained,”federal law would forbid the advertising of an activity that’s legal under both state and federal law, and that’s something which Congress has rarely done.”
The majority acknowledged that the question of whether to legalize sports betting”is a contentious one” that”requires an important policy choice.” But that choice, the majority continued,”isn’t ours to make. Congress can regulate sports betting right, but when it elects not to do so, every State is free to act by itself.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of this court’s judgment but instead on a fairly abstract legal question: the viability of this court’s present severability doctrine. Thomas made clear that he joined the majority’s decision striking down all PASPA because”it provides us the ideal response it can to this question, and no party has asked us to apply another test.” But he suggested that the court should, at some stage later on, reconsider its severability doctrine, which he characterized as”dubious.” First, he observedthe philosophy is contrary to the tools that judges normally use to interpret laws because it requires a “`nebulous query into hypothetical congressional intent,”’ teaching judges to try and work out what Congress would have wanted to do if part of a law violated the Constitution, when”it seems unlikely that the enacting Congress had any intention on this query.” Second, he continued, the doctrine”often requires courts to weigh in on statutory provisions that no party has” a legal right to battle.
Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg didn’t elaborate on her obvious decision (combined in total by Justice Sonia Sotomayor) that PASPA’s pub on the authorization of sports betting from the states will not violate the Constitution. Instead, she contended (also with assistance from Justice Stephen Breyer) that, even if PASPA’s anti-authorization provision is unconstitutional, the remaining portion of the law should stay in force. “On no rational ground,” Ginsburg emphasized,”can it be concluded that Congress would have preferred no statute whatsoever if it couldn’t prohibit States from authorizing or licensing such strategies.”
New Jersey has long estimated that allowing sports betting would revive the state’s struggling racetracks and casinos. In March of this year, ESPN estimated that if New Jersey were to triumph, the country might have legal sports betting by the time football season kicks off in the fall; almost two dozen other nations are also considering bills that would enable sports gambling. The economic effect of letting sports gambling can’t be understated: Legal sports betting in Las Vegas takes in over $5 billion each year, and many estimates place the value of illegal sports betting in the United States at around $100 billion.
Today’s ruling may also have a much broader reach, potentially affecting a range of topics that bear little resemblance to sports betting. By way of example, supporters of so-called”sanctuary cities” — cities that refuse to cooperate with federal immigration officials to enforce immigration laws — have cited the 10th Amendment in late challenges to the national government’s efforts to enforce conditions on grants for state and local law enforcement. Challenges to the federal government’s recent attempts to enforce federal marijuana laws in states that have legalized the drug for recreational or medical use might also be dependent on the 10th Amendment.
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