Supreme Court Gambles with State Sovereignty

This morning the U.S. Supreme Court will hear oral argument in a case that pits New Jersey against both the nation’s largest sports leagues and the Trump administration. The immediate question at issue in Christie v. NCAA is about whether New Jersey has the right to repeal its own law banning sports betting—as the state’s voters and legislature already voted to do.

The bigger question is whether or not the U.S. Constitution allows the federal government to force states—to essentially take over state legislatures—to enforce federal laws, like it or not. That is a crucial question that will impact states’ ability to decide their own priorities and laws, from immigration, to gun and ammo sales, to marijuana, and even assisted suicide.

Anyone concerned about the unchecked power of the federal government to impose a one-size-fits-all policy on the peoples of every state should be worried about how the Court rules in this case.

The New Jersey case stems from a 2011 referendum in which state voters overwhelming supported the state altering its Constitution to authorize sports betting within state borders. That effort was then blocked by major sports leagues, led by the National Collegiate Athletics Association. The leagues argue that the federal Professional and Amateur Sports Act of 1992 (PASPA), blocks states from legalizing—or even decriminalizing—sports gambling.

Lower courts sided with the leagues, and New Jersey appealed, arguing that by preventing states from legislating as they and their constituents see fit on wholly intrastate matters, PASPA violates the U.S. Constitution. Specifically, New Jersey asserts that PASPA violates the Constitution’s 10^th Amendment, which reserves powers not delegated to the federal government for states and the people.

In the past, the Court has interpreted the 10^th Amendment as blocking federal authorities from unduly interfering with state authorities through “commandeering.” This anti-commandeering doctrine protects states from being forced to implement federal policies against their will. Interestingly, the doctrine originated in pre-Civil War America as the rationale for why Congress could not compel free states to implement the abhorrent federal Fugitive Slave Act. The doctrine holds that states have a right to resist—that they are under no obligation to use their own resources to enforce federal laws in which they had no say in deciding and with which they may vehemently disagree.

For nearly 200 years, the Court has upheld this principle, recognizing it as an essential means of preserving state sovereignty and political accountability. Without it, the federal government could use state legislatures and resources as its puppet and avoid responsibility for unpopular policies. For example, voters who want marijuana or sports gambling to be legal in their state may blame local officials and punish them in subsequent elections for failing to change state law, not realizing that state officials were rendered powerless to change these policies.

Another important issue in the New Jersey case is whether federal law can discriminate against certain states by picking winners and losers. PASPA exempted states that already offered legal sports betting, allowing them to simply carry on. While at least eight states might qualify in some way for this exemption, only Nevada allowed single-game sports betting before PASPA’s enactment and remains the only state to authorize and profit from this form of sports gambling. While Nevada rakes in around $220 million in revenue each year, other large gambling states like New Jersey and Pennsylvania can only watch as consumers illegally wager billions on the black market, which nationwide is estimated to generate between $150 billion and $400 billion a year. This, New Jersey argues, violates the nation’s principle of equal sovereignty.

Will the Justices agree? Since the Court hasn’t heard an anti-commandeering case in decades, it’s hard to say. The following is speculation based on limited evidence:

• Justice Ruth Bader Ginsburg may be difficult to convince on the equal sovereignty question. In the 2013 case of Shelby County v. Holder, the Court relied upon the equal sovereignty doctrine to strike down a provision of the 1965 Voting Rights Act which required certain states (with a history of racially discriminating voting policies) to receive approval before amending their voting laws. In her dissent, Ginsburg argued that the equal sovereignty doctrine only applied to new states entering the Union. She argued that laws which disparately treat existing states differently are common and valid. She even noted that based on the Court’s Shelby logic, laws like PASPA would not “remain safe.”
• On the other side, Chief Justice Roberts is known as a strong a strong supporter of state sovereignty. Also, according to former classmate and gambling law expert I. Nelson Rose, he’s “probably pro-gambling.” Elena Kagan is also known as a gambler or, more accurately, as an avid poker player. Of course, the personal opinions of Roberts, Kagan, and any of the other Justices likely won’t influence their reading of the merits of New Jersey’s case.   
• As for the rest of the Court, a few previous cases hint at how they might rule. In 1992’s New York v. United States the Court struck down regulations that forced states to take possession of toxic waste, deeming it a violation of the anti-commandeering doctrine. Here, Justices Anthony Kennedy and Clarence Thomas sided with the majority opinion. In 1997 the two again sided with the majority in Printz v. United States, where the Court ruled that provisions within the Brady Gun Control Act—a federal law that required state officials to administer background checks—violated state sovereignty and the anti-commandeering doctrine. In this instance, Justices Ginsburg and Stephen Breyer dissented.

Hopefully, the justices will also give due considerations to what the states have to say. That 20 states signed an amicus brief in support of New Jersey signals a desire and willingness among the states to accept the responsibility of regulating sports gambling. As many states seem prepared to regulate in a post-PASPA world, this could lessen concerns the justices might have about striking down PASPA entirely. Even the respondent to New Jersey’s appeal—the sports leagues—have signaled they wouldn’t mind and might even be happier if they lost the case, with representatives for three out of the four publicly commenting on the benefits of legalizing sports gambling.

No matter what, much is at stake. If and when cases involving state regulation of immigrants, gun and ammo sales, education, or assisted suicide reach the Supreme Court, the justices will have to account for the rationale they used in deciding this sports gambling case. For example, current U.S. Attorney General Jeff Sessions has repeatedly expressed an interest in prosecuting purveyors and users of marijuana, even when they are complying with a state law making medical or recreational use legal. If the Court rules in favor of New Jersey—upholding previous decisions in favor of state sovereignty—it will bolster a state’s case for legalizing. On the other hand, if the justices rule against New Jersey, it will embolden Sessions and subsequent Attorneys General wishing to pursue legal action in states where marijuana has been made legal.

During the one hour of oral argument, the questions posed by the Justices may provide insight into which way the Court is leaning. But, of course, we likely won’t get a ruling until spring or summer of 2018.

Meanwhile, federal lawmakers should decide what should be done about federal gambling laws. No matter how the Court rules, the fact that so many states want PASPA overturned, the billions of dollars and criminal activity generated by the illegal sports gambling market, and the constitutional principles threatened by PASPA’s existence should all be compelling enough for lawmakers to reconsider the negative impact of that law.