Much of the post-argument analysis of Christie v. NCAA has been optimistic that the justices will disagree with lower courts and rule that New Jersey’s partial repeal of its own sports betting ban does not violate the Professional and Amateur Sports Protection Act (PASPA), a 1992 law that prohibits states from authorizing or promoting sports gambling. The leagues, led by the National Collegiate National Collegiate Athletics Association (NCAA), argued that by partially repealing their own state ban on the activity, New Jersey was implicitly authorizing sports betting in violation of PASPA. For its part, New Jersey argued that by constraining state legislatures in this way, the law constitutes a violation of the Constitution’s anti-commandeering principle—a doctrine which protects states from being forced to enact or enforce federal policies against their will.
From my own view at the back of the courtroom where I was, luckily, not blocked by a column like so many other spectators, I’d say the optimism for New Jersey’s chances is well-placed. While it’s true that the justices’ questions don’t always reveal their true feelings, based on some of their statements, I feel more confident, post-argument, that they will not only rule that New Jersey has the right to repeal its own sports betting ban, but also that the entire law is invalid and that any state may authorize sports gambling.
Throughout oral argument, the justices seemed keen on making a distinction between commandeering and “preemption.” Why, if the Constitution allows federal law to supersede conflicting state laws, should PASPA be considering commandeering instead of a simple preemption, Justice Kagan asked. Ted Olson, a former U.S. solicitor general and attorney representing New Jersey, argued that preemption applies when there’s a federal policy and the preemption is only in service of preventing state law from conflicting with federal statutes. When it comes to sports betting, however, the government has no policy other than to prevent the states from regulating the activity.
In questioning Olson, some of the justices seemed skeptical of this stance. Justice Ginsburg, for example, noted that federal policy is generally only considered “commandeering” when it forces state authorities to enact, administer, or enforce federal policies. PASPA, she argued, does not appear to compel the states to do anything other than to avoid regulating sports betting. The states remain “free to decide how much of a law enforcement priority it wants to make of sports gambling,” she asserted.
Others, like Justice Alito asked questions that may indicate sympathy toward New Jersey’s argument. “Congress could have prohibited gambling enterprises itself,” he stated and asked Paul Clement, the lawyer representing the sports leagues, why Congress hadn’t simply prohibit gambling instead of forcing the states to enforce a federal ban. Clement’s clever response was that in prohibiting the states from authorizing sports betting it actually preserves federalism. Rather than forcing the states to enact a “one-size-fits-all” prohibition, he argued, PASPA allows states to decide how much of a priority enforcing the ban ought to be, how much of their resources should go toward prosecuting violations, and what the penalties should be.
But Chief Justice Roberts didn’t seem to find Clement’s position very compelling. If the goal of the law was to create a national prohibition, Congress could have made it illegal for individuals to offer sports betting without constraining the states and raising commandeering concerns. “That would be the federal government regulating this area. And then it has what is the normal preemption clause,” Roberts reasoned.
In an interesting twist, Clement argued that PASPA did represent the federal government regulating in this area: that it was aimed at individuals—not state governments. The prohibition on state authorization was merely to make sure they didn’t diverge from Congress’s policy goals. However, as the justices probed this bit of logic they appeared even less convinced by the leagues’ argument.
What Clement was referring to was the second half of PASPA. While the first section prohibits states from authorizing sports betting, the second makes it illegal for individuals to offer sports betting “pursuant to the law.” As several of the justices noted, this is oddly worded and, in essence, means that the only kind of individual sports betting business that violates PASPA is when it is conducted in compliance with state law—which state law cannot allow.
“In other words, if the state law says you can do it, that’s the only situation in which it’s illegal,” Roberts commented. “If the state law doesn’t say anything about it, well, feel free, you can do it.” Justice Breyer also questioned Clement’s assertion that this section of the law truly was aimed at individual behavior. Both sections of the law “are addressing themselves to what kind of law a state may have,” he said, and noted that it does so “without a clear federal policy that distinguishes between what they want states to do and what the federal government is doing.” Breye’s statements echoed Olson’s earlier remark that the federal government has no policy banning sports betting. Breyer concluded, “That’s what this is about, telling the states what to do, and therefore, it falls within commandeering.”
But, U.S. Deputy Solicitor General Jeff Wall, a Trump appointee, argued that PASPA does not commandeer the states since—as Justice Ginsburg commented, they can choose to ignore the federal policy and sports betting entirely by refusing to enact a ban or else repealing their own bans on the activity. “You have no problem if there’s no prohibition at all?” Roberts asked Wall, seemingly incredulous of his assertion that PASPA doesn’t prevent the states from decriminalizing sports betting. “[A]nybody can engage in any kind of gambling they want, a 12-year-old can come into the casino and—you’re not serious about that,” he told Wall.
But Wall insisted he was serious: if New Jersey had repealed all of its laws regarding sports betting, rather than the partial repeal it attempted, the state wouldn’t have violated PASPA. It was here that Roberts seemed to recognize the inherent danger in this interpretation of PASPA; the so-called choice of either a total ban or a complete absence of any controls on the activity. As Roberts responded, “when you put the state in a position that that’s the only thing they can do, that’s not a real choice.”
Justices Breyer, Gorsuch, Kennedy, and Alito seemed to share Roberts’s opinion to a certain extent. Even Justices Sotomayor and Ginsburg expressed a measure of skepticism toward the government’s and the leagues’ arguments. Justice Clarence Thomas remained silent throughout the arguments, as usual. However, he conferred several times with Breyer who at one point even grabbed Thomas’s chair to roll him over for a whispering session before asking more questions. So, it’s possible that some of what Breyer expressed may have reflected Thomas’s thinking on this case. Thomas, who is known as a strong proponent of federalism, has previously opposed expanded readings of preemption. For example, in Arizona v. United States, a case in which the Court ruled that even if state laws don’t explicitly conflict with federal statute, they may be preempted when they implicitly conflict with Congress’s “purposes and objectives.” Thomas, in a partial dissent, wrote that this broader preemption interpretation “invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text.”
Based on what I saw, I think a majority of the justices recognize that even if PASPA doesn’t impose a positive requirement on the states to “enforce” federal law, it at least commandeers them in effect. They also seemed to understand the problems that might be created by only partially invalidating the law, leaving states with the option of either banning sports betting entirely or leaving the market entirely unregulated. This might indicate that the Court—should it rule in favor of New Jersey—might be more likely to strike down PASPA in-full. Throughout their questioning, some of the justices also hinted at concerns about the ramifications of allowing the Congress to engage in this sort of back-door commandeering. As Alito put it, “could Congress just go through...the statutes of the states and pick out a long list of statutes that can’t be repealed except in full?” Giving federal authorities this power could allow them to coerce the states into doing their bidding while still maintaining the guise of having a choice “choice,” albeit a Hobson’s choice.
We will likely have to wait until spring or summer of 2018 to know their final ruling, but members of Congress should not let the Court gamble with these important structural questions. Despite optimism from viewers, it is possible that the justices may ultimately rule that PASPA does not constitute commandeering, notwithstanding the reality that the impact is the same. In that instance, allowing PASPA to remain on the books would be game-changing loophole through which Congress could force countless policies on states against the will of the legislatures and their constituents. It could also threaten many existing state policies on anything from gun and ammo sales, marijuana, and even assisted suicide. That’s an outcome no one should want.