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 national authorities or take that power away in 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 laws. Today the justices ruled that a federal law which bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not merely opens the door for countries around the nation to permit sports betting, but it also could give considerably more power to states generally, on topics ranging 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 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 country’s casinos, as long as the nation did so within a year. But it required New Jersey 20 years to act: In 2012, the state legislature passed a law which 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 violated 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 that gathered back existing bans on sports gambling, at least as they employed to New Jersey casinos and racetracks. The NCAA and the championships returned to court, asserting that the law also violated PASPA, along with the U.S. Court of Appeals for the 3rd Circuit again ruled against the state.
The Supreme Court agreed to look at that the state’s constitutional challenge to PASPA, and now the court reversed. In a determination by Justice Samuel Alito, the court began by describing the”anticommandeering doctrine may seem arcane, but it is just the expression of a fundamental structural decision incorporated into the Constitution” –“that the choice to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the issue with the supply of PASPA the nation challenged, which bars states from sports gambling: It”unequivocally dictates what a state legislature could and may not do.” “It is as if,” the majority indicated,”federal officers were installed in state legislative chambers and have been 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 also rejected the argument, made by the leagues and the federal authorities, the PASPA provision barring states from sports betting doesn’t”commandeer” the states, but rather simply supersedes any state legislation that conflict with the supply — a legal doctrine called pre-emption. Pre-emption, most explained,”is based on a federal law that regulates the behaviour of private actors,” but here”there is just no way to understand the provision forbidding state authorization as anything other than a direct control to the States,” which”is exactly what the anticommandeering principle doesn’t allow.”
Having ascertained that the PASPA provision barring states from sports betting is unconstitutional, the bulk then turned to the question that followed from this conclusion: Should the rest of PASPA be struck down as well, or can the law survive with no anti-authorization provision? In legal terms, the query is called”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 consented that the PASPA anti-authorization provision was unconstitutional also concurred that the whole law should fall. They concluded that, if the bar on states authorizing or licensing sports gambling had been invalid, it could be”most unlikely” that Congress would have wanted to continue to stop the states from running sports lotteriesthat have been regarded as”far more benign than other kinds of betting.” Similarly, the majority posited, if Congress had understood the bar on condition authorization or operation of sports betting would 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 advertising of sports betting met the same fate; differently, the court explained,”federal law could forbid the promotion of an activity that’s legal under both state and federal legislation, and that is something that Congress has rarely done.”
The majority acknowledged that the question of whether to legalize sports gambling”is a controversial one” which”requires an important policy choice.” But that choice, nearly all continued,”isn’t ours to make. Congress can regulate sports betting directly, but when it elects not to do so, every State is free to act on its own.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of the 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 all PASPA since”it provides us the ideal response it can to this question, and no party has asked us to apply a different test.” However he proposed that the court should, at some point in the future, reconsider its severability doctrine, which he characterized as”suspicious” To begin with, he observed, the philosophy is contrary to the tools that courts normally use to interpret laws since it requires a “`nebulous inquiry into hypothetical congressional purpose,”’ teaching judges to attempt and work out exactly what Congress would have wanted to do if part of a law violated the Constitution, when”it seems improbable that the enacting Congress had any intent on this query.” Secondly, he continued, the doctrine”frequently 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 didn’t elaborate on her obvious conclusion (combined in total by Justice Sonia Sotomayor) which PASPA’s pub on the consent of sports betting by the nations does not violate the Constitution. Rather, she contended (also with assistance from Justice Stephen Breyer) that, even though PASPA’s anti-authorization provision is unconstitutional, the remaining portion of the law ought to remain in force. “On no rational ground,” Ginsburg highlighted,”can it be concluded that Congress would have preferred no statute at all if it could not prohibit States from authorizing or licensing such strategies.”
New Jersey has long hoped that enabling sports gambling 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 betting by the time football season kicks off in the fall; almost two dozen other states are also considering bills that would enable sports gambling. The financial effect of letting sports gambling cannot be understated: Legal sports gambling in Las Vegas takes in more than $5 billion each year, and most estimates put the value of illegal sports betting in the USA at up to $100 billion.
Now’s ruling could also have a much broader reach, possibly affecting a range of themes that bear little resemblance to sports gambling. For instance, 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 federal government’s efforts to enforce conditions on grants for state and local law enforcement. Challenges to the national government’s recent efforts to enforce federal marijuana laws in countries which have legalized the drug for recreational or medical use might also be dependent on the 10th Amendment.

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