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Supreme Court Can Save America by Taking a Gamble on Sports Betting

America is a betting nation, and last Tuesday we elected something of a wild card to be our next commander-in-chief. President-elect Trump’s nonexistent legislative history and tendency to “evolve” on issues (sometimes week to week), combined with the momentum he has with a Republican Congress, has many folks at both ends of the political spectrum nervous. But America remains a constitutional republic and it is for scenarios exactly like this that our Constitution limits and divides power between the feds, states, and individuals. That’s one reason why CEI has joined the Pacific Legal Foundation and the Cato Institute in asking the Supreme Court of the United States to hear New Jersey’s case against a federal law against sports betting.

Most Americans don’t know that gambling on sports is federally prohibited. More specifically, they are unaware of the Professional and Amateur Sports Protection Act (PASPA) of 1992 which prohibits the states from “authorizing” sports gambling. While four states have some form of sports betting, only Nevada allows single-game betting. This, of course, hasn’t stopped Americans all over the nation from engaging in the activity. In fact, every year we spend hundreds of billions of dollars on the black market—much more than the approximately $200 million wagered legally at Las Vegas sports books. Hoping to capture some of that black market revenue, New Jersey has twice attempted to legalize sports betting. Both times, they were sued and blocked by the professional sports leagues and the NCAA, who believe that gambling on sports will erode fans’ belief in the integrity of the game. Thus far, the leagues have successfully argued that New Jersey’s attempts to legalize sports gambling at the state level is a violation of PASPA. For their third attempt, New Jersey tried something different. Instead of passing a law to legalize sports gambling, the legislature passed a law repealing their own state prohibition, hoping that decriminalization instead of outright legalization would allow them to sidestep PASPA. Their hopes were dashed this summer when the Third Circuit Court of Appeals ruled in favor of the leagues, arguing that PASPA not only prevented New Jersey from legalizing sports betting, but also barred them from repealing their own laws that prohibit the activity.

This is not simply a case about sports gambling: if left to stand, the appeals court ruling has implications for many other important freedoms and rights by influencing subsequent efforts made by the state to resist inappropriate federal influence. For example, the next administration may require states to enforce the DEA’s designation of marijuana as an illegal drug—even if the states enacted medical marijuana laws. Similarly, states that allow assisted suicide might be forced to prosecute physicians who aid terminally ill patients in ending their own lives. On the other hand, future Democratic administrations might be able to compel states to cooperate with federal gun control laws, like forced background checks, or other rules that Republicans might rather resist. In short, the ruling we are opposing allows the federal government to compel states to legislate as Congress sees fits.

In general, the courts have allowed Congress to enact statutes that influence state matters, especially if it impacts interstate commerce, but they have, until now, rebuffed efforts by Congress to force state legislatures to enact or sustain statutes against their will. The Third Circuit Court ruling now provides precedent for the courts to commandeer state legislatures.

We are also concerned that allowing this decision to stand may make political accountability more difficult. Voters who want marijuana or sports gambling to be legal in their state may erroneously blame state legislators for the perpetuation of unpopular policies and may punish them in subsequent elections without realizing that state officials were rendered powerless to change such policies.

A Supreme Court ruling in favor of New Jersey in this case would, for all practical purposes, overturn PASPA, allowing any state that wished to regulate sports gambling to merely repeal any laws explicitly prohibiting the activity. More importantly, it would reaffirm our nation’s commitment to limiting the scope of federal power and to maintain our states as “laboratories of democracy” by protecting their ability to act on local conditions and the will of their people. We hope that the justices recognize the importance of weighing in on behalf of this key structural protection of American liberty.