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 take that power away from the nations, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from”commandeering” the states to enforce federal legislation or policies. Today the justices ruled that a federal law that bars states from legalizing sports gambling violates the anti-commandeering philosophy. Their choice not only opens the door for countries around the country to allow sports gambling, but it also can give significantly more power to countries generally, on topics which range from the decriminalization of marijuana to sanctuary towns.
The federal law at issue in the case is the skilled and Amateur Sports Protection Act, which dates back to 1992. The legislation, called PASPA, bans most states out of (among other things) authorizing sports betting; it carved out an exception that could have permitted New Jersey to establish a sports-betting scheme in the state’s casinos, as long as the nation did so within a year. However, it required New Jersey 20 years to act: 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, 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 gambling, at least since they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned into court, arguing that the new law also violated PASPA, along with the U.S. Court of Appeals for the 3rd Circuit again ruled against the nation.
The Supreme Court agreed to consider 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 decision incorporated in the Constitution” –“the choice to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA the nation contested, which bars states from sports betting: It”unequivocally dictates exactly what a state legislature could and may not perform.” “It’s like” the majority suggested,”federal officers were set up in state legislative chambers and were armed with the ability to prevent legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito reasoned,”is difficult to imagine.”
The court rejected the argument, made by the championships and the national government, the PASPA provision barring states from authorizing sports betting doesn’t”commandeer” the nations, but instead merely supersedes any state laws that conflict with the supply — a legal doctrine called pre-emption. Pre-emption, most explained,”is based on a federal law that regulates the conduct of private actors,” but “there is just no way to understand the provision prohibiting state authorization as anything aside from a direct control to the States,” that”is just what the anticommandeering rule does not allow.”
Having determined the PASPA provision barring states from sports betting is unconstitutional, the majority then turned into the question which followed from this decision: If the remainder of PASPA be broke down as well, or will the legislation endure with no anti-authorization provision? In legal terms, the query is called”severability,” and now half the seven justices — Alito along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch — who also consented that the PASPA anti-authorization provision was unconstitutional also concurred that the entire law ought to fall. They concluded that, when the pub on states authorizing or licensing sports gambling were invalid, it could be”most unlikely” that Congress would have wanted to continue to prevent the states from running sports lotteries, which have been considered as”much more benign than other forms of gambling.” In the same way, the majority posited, if Congress had understood the pub on state authorization or performance of sports gambling will be struck down, it wouldn’t have wanted that the parallel ban on the operation of sports-betting strategies by private entities to continue. The PASPA provision barring the promotion of sports betting met the same fate; differently, the court explained,”federal law could forbid the promotion of an activity that is legal under both federal and state legislation, and that is something which Congress has rarely done.”
The majority acknowledged that the question of whether to legalize sports betting”is a controversial one” which”requires an important policy decision.” But that decision, the majority continued,”is not ours to create. Congress can control sports gambling directly, but if it elects not to do so, each State is free to act by itself.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of the court’s judgment but rather on a rather abstract legal question: the viability of this court’s present severability doctrine. Thomas made clear that he joined the majority’s decision striking down most of PASPA since”it gives us the best answer it could to this query, and no party has asked us to apply a different test.” However he proposed that the court ought to, at some point later on, reconsider its severability doctrine, which he characterized as”suspicious” To begin with, he observed, the philosophy is contrary to the tools that judges normally use to translate laws because it requires a “`nebulous query into hypothetical congressional purpose,”’ teaching judges to try and work out exactly what Congress would have wanted to do if a part of a law violated the Constitution, when”it appears improbable that the enacting Congress had any intention on this question.” Secondly, he continued, the doctrine”frequently 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 did not elaborate on her apparent conclusion (joined in full by Justice Sonia Sotomayor) that PASPA’s bar on the authorization of sports betting from the states will not violate the Constitution. Instead, she argued (also with the support of Justice Stephen Breyer) that, even if PASPA’s anti-authorization supply is unconstitutional, the rest of the law ought to remain in force. “On no logical ground,” Ginsburg highlighted,”can it be concluded that Congress would have preferred no statute whatsoever if it could not prohibit States from authorizing or licensing these strategies.”
New Jersey has long hoped that enabling sports betting could revive the state’s struggling racetracks and casinos. In March of this year, ESPN projected that if New Jersey were to triumph, the country could have legal sports gambling by the time football season kicks off in the autumn; almost two dozen other states are also considering bills that would allow sports betting. The economic impact of allowing sports gambling can’t be understated: Legal sports betting in Las Vegas takes in over $5 billion annually, and many estimates place the value of illegal sports gambling in the USA at around $100 billion.
Now’s ruling could also have a much broader reach, possibly affecting a range of themes that bear little similarity to sports betting. For example, supporters of so-called”sanctuary cities” — cities that refuse to cooperate with federal immigration officials to enforce immigration laws — have mentioned the 10th Amendment in recent challenges to the national government’s attempts to enforce conditions on grants for local and state law enforcement. Challenges to the federal government’s recent efforts to enforce federal marijuana laws in countries that have legalized the drug for either recreational or medical use might also be dependent on the 10th Amendment.

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