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Amicus Brief of Pacific Legal Foundation, CEI and the Cato Institute in Christopher Christie v. NCAA

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Amicus Brief of Pacific Legal Foundation, CEI and the Cato Institute in Christopher Christie v. NCAA

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A federal statute compels New Jersey to continue prohibiting sports gambling, thus requiring the state to hold long after its voters decided to fold. In ruling that this does not run afoul of the prohibition against federal commandeering of states, the Third Circuit 3 decided an important question of federal law that has not been, but should be, settled by this Court. See N.C.A.A. v. Governor of New Jersey, 832 F.3d 389 (3d Cir. 2016).

The Third Circuit’s opinion undermines federalism and thereby threatens individual liberty by significantly limiting the scope of this Court’s commandeering decisions. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). The Professional and Amateur Sports Protection Act (PASPA) forbids states from “authoriz[ing]” sports gambling “by law.” 28 U.S.C. § 3702. The Third Circuit interpreted this prohibition to bar states not just from affirmatively licensing sports gambling, but also from repealing or modifying their preexisting state prohibitions. See N.C.A.A., 832 F.3d at 396-97.

Accordingly, PASPA compels states to regulate their citizens according to Congress’ instructions. The Third Circuit held that PASPA does not violate the anticommandeering doctrine, however, because it does not require the states to enact prohibitions but instead to maintain existing prohibitions. Id. at 401-02 (“PASPA does not command states to take any affirmative actions[.]”). The petition raises an important question of federal law as the anti-commandeering doctrine is a key structural protection for federalism. New York v. United States, 505 U.S. at 161-66. In addition to maintaining the proper relationship between the federal government and the states, it protects individual liberty and promotes political accountability. Id. at 182-83. The importance of these constitutional issues calls for this Court to resolve the scope of the anti-commandeering doctrine.

The question presented is not merely important for academic or doctrinal reasons. PASPA reaches a broad range of sports gambling, with significant economic and social impacts. States need clear guidance from this Court about their valid regulatory options so that they may determine how best to protect and promote the interests of their residents.

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