The 10th Amendment provides that, if the Constitution doesn’t either give a power to the national government or accept that power away in 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 states to enforce federal legislation or laws. Now the justices ruled that a federal law which bars states from legalizing sports betting violates the anti-commandeering doctrine. Their choice not only opens the door for states around the country to permit sports gambling, but it also can give significantly more power to states generally, on issues which range 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 law, known as PASPA, bans most states out of (among other things) authorizing sports gambling; it carved out an exception which would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the nation did so within a year. But it required New Jersey 20 years to behave: In 2012, the state legislature passed a law which 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 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 rolled back present bans on sports gambling, at least as they employed 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 ruled against the state.
The Supreme Court agreed to look at the nation’s constitutional challenge to PASPA, and today the court reversed. In a determination by Justice Samuel Alito, the court began by explaining that the”anticommandeering doctrine may sound arcane, but it is simply the expression of a basic structural conclusion integrated into the Constitution” –“that the choice to withhold from Congress the power to issue orders directly into the States.” And that, the majority lasted, is precisely the problem with the provision of PASPA that the nation challenged, which bars states from authorizing sports gambling: It”unequivocally dictates exactly what a state legislature could and may not perform.” “It’s as if,” the majority suggested,”federal officers were set up in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded,”is difficult to imagine.”
The court rejected the argument, made by the leagues as well as the national authorities, the PASPA provision barring states from authorizing sports betting doesn’t”commandeer” the states, but rather merely supersedes any state legislation that conflict with the supply — 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 aside from a direct command to the States,” which”is exactly what the anticommandeering rule does not allow.”
Having determined the PASPA provision barring states from sports betting is unconstitutional, the majority then turned to the question that followed by this conclusion: Should the rest of PASPA be struck down as well, or will the law survive 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 agreed that the entire law ought to fall. They concluded that, if the pub on countries authorizing or licensing sports gambling were invalid, it would be”most unlikely” that Congress would have wanted to continue to stop the states from running sports lotteries, which have been regarded as”far more benign than other kinds of betting.” Similarly, the majority posited, if Congress had understood the pub on condition authorization or performance of sports betting would be struck down, it would not have wanted the concurrent 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; differently, the court explained,”national law would prohibit the advertising of an activity that’s legal under both state and federal legislation, and that is something which Congress has seldom done.”
The majority acknowledged that the question of whether to legalize sports betting”is a controversial one” that”requires an important policy choice.” But that choice, nearly all continued,”is not ours to make. Congress can control sports gambling right, 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 rather on a fairly abstract legal question: the viability of the court’s current severability doctrine. Thomas made clear that he joined the majority’s decision striking down all PASPA because”it gives us the best answer it could to this query, and no party has requested us to apply a different test.” However he suggested that the court should, at some stage in the future, rethink its severability doctrine, which he characterized as”dubious.” To begin with, he observed, the doctrine is against the tools that courts normally use to interpret laws because it requires a “`nebulous query into hypothetical congressional intent,”’ instructing judges to attempt to figure out exactly what Congress would have wanted to do if a part of a law violated the Constitution, when”it appears unlikely 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 battle.
Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg didn’t elaborate on her apparent conclusion (joined in total by Justice Sonia Sotomayor) which PASPA’s bar on the authorization of sports betting from the nations does not violate the Constitution. Rather, she contended (also with the support of Justice Stephen Breyer) that, even though PASPA’s anti-authorization supply 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 preferred no statute at all if it could not prohibit States from penalizing or licensing such 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 estimated that if New Jersey were to win, the state might have legal sports gambling by the time football season kicks off in the fall; almost two dozen other nations are also considering bills that would enable sports betting. The financial effect of letting sports betting can’t be understated: Legal sports betting in Las Vegas takes in more than $5 billion annually, and most estimates place the value of illegal sports gambling in the USA at around $100 billion.
Today’s ruling could also have a much broader reach, potentially affecting a range of themes that bear little similarity to sports gambling. By way of example, fans of so-called”sanctuary cities” — cities that refuse to cooperate with federal immigration officials to enforce immigration laws — have mentioned the 10th Amendment in late challenges to the federal government’s attempts to implement states on grants for local and state law enforcement. Challenges to the national government’s recent attempts to enforce federal marijuana laws in countries which have legalized the drug for recreational or medical use may also be based on the 10th Amendment.
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