The 10th Amendment provides that, if the Constitution does not give a power to the national authorities or accept that power away in the states, that power has been reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from”commandeering” the states to enforce federal laws or policies. Today the justices ruled that a federal law which bars states from legalizing sports gambling violates the anti-commandeering philosophy. Their choice not only opens the door for states around the nation to allow sports gambling, but it also can give significantly more power to states generally, on topics which range from the decriminalization of marijuana to sanctuary towns.
The federal law at issue in the case is the skilled and Amateur Sports Protection Act, which dates back to 1992. The legislation, known as PASPA, bans most nations out of (among other things) authorizing sports betting; it carved out an exception which could have permitted New Jersey to set up a sports-betting strategy in the country’s casinos, provided that the state failed within a year. However, it took New Jersey 20 years to act: In 2012, the state legislature passed a law that legalized sports betting.
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The National Collegiate Athletic Association and the four major professional sports leagues went into court, arguing that the 2012 law breached PASPA. The lower federal courts agreed, prompting the New Jersey legislature to return to the drawing board. In 2014, it passed a new law that rolled back existing bans on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned to court, asserting that the law also violated PASPA, and the U.S. Court of Appeals for the 3rd Circuit ruled against the state.
The Supreme Court agreed to consider the nation’s constitutional challenge to PASPA, and now the court reversed. In a decision by Justice Samuel Alito, the court began by describing the”anticommandeering doctrine may sound arcane, but it is simply the expression of a basic structural conclusion incorporated in the Constitution” –“the choice to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is precisely the issue with the provision of PASPA the nation contested, which bars states from sports betting: It”unequivocally dictates what a state legislature could and might not do.” “It’s like” the majority indicated,”national officials were set up in state legislative chambers and were armed with the ability to stop legislators from voting on any busting proposals. A more direct affront to state sovereignty,” Alito reasoned,”is difficult to imagine.”
The court also rejected the argument, made by the leagues and the federal government, the PASPA provision barring states from authorizing sports gambling doesn’t”commandeer” the nations, but instead simply supersedes any state legislation that conflict with the supply — a legal doctrine called pre-emption. Pre-emption, the majority explained,”is based on a national law which regulates the conduct of private actors,” but “there is just no way to comprehend the provision prohibiting state authorization as anything other than a direct command to the States,” which”is exactly what the anticommandeering principle does not allow.”
Having ascertained the PASPA provision barring states from sports betting is unconstitutional, the majority then turned to the question which followed from this conclusion: Should the remainder of PASPA be struck down as well, or can the legislation survive with no anti-authorization provision? In legal terms, the query is known as”severability,” and today six of the seven justices — Alito together with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch — who also agreed the PASPA anti-authorization provision was unconstitutional also concurred that the entire law ought to fall. They concluded that, when the bar on countries authorizing or licensing sports gambling had been invalid, it could be”most unlikely” that Congress would have wanted to continue to stop the states from conducting sports lotteries, which have been considered as”far more benign than other kinds of betting.” In the same way, the majority posited, if Congress had understood the bar on condition authorization or performance of sports gambling would be struck down, it wouldn’t have wanted the parallel ban on the performance of sports-betting schemes by private entities to continue. The PASPA provision barring the promotion of sports betting met the same fate; otherwise, the court explained,”national law could prohibit the promotion of an activity that’s legal under both state and federal legislation, and that is something that Congress has rarely done.”
The majority acknowledged that the question of whether to legalize sports betting”is a contentious one” which”requires an important policy decision.” But that decision, the majority continued,”isn’t ours to make. Congress can control sports gambling directly, but when it elects not to do so, each State is free to act by itself.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of the court’s judgment but instead on a rather subjective legal question: the viability of this court’s present severability doctrine. Thomas made clear that he joined the majority’s decision striking down most PASPA because”it gives us the best answer it could for this question, and no party has asked us to apply another test.” But he suggested that the court ought to, at some point in the future, rethink its severability philosophy, which he characterized as”suspicious” First, he observed, the philosophy is against the tools that courts normally use to translate laws since it requires a “`nebulous inquiry into hypothetical congressional intent,”’ teaching judges to attempt and figure out what Congress would have wanted to do if a part of a law violated the Constitution, when”it seems unlikely that the enacting Congress had any intention on this question.” Secondly, he continued, the philosophy”often requires courts to weigh in on statutory provisions that no party has” a legal right to battle.
Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg did not elaborate on her obvious decision (combined in full by Justice Sonia Sotomayor) which PASPA’s pub on the consent of sports betting from the nations does not violate the Constitution. Rather, she argued (also with the support of Justice Stephen Breyer) that, even if PASPA’s anti-authorization supply is unconstitutional, the remaining portion of the law should remain in force. “On no rational ground,” Ginsburg highlighted,”is it concluded that Congress would have preferred no statute at all if it couldn’t prohibit States from penalizing or licensing such schemes.”
New Jersey has long estimated that allowing sports gambling would revive the nation’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 autumn; nearly two dozen other nations are also considering bills that would enable sports gambling. The economic effect of allowing sports betting cannot be understated: Legal sports betting in Las Vegas takes in over $5 billion each year, and most estimates place the value of illegal sports gambling in the United States at up to $100 billion.
Today’s ruling may also have a much broader reach, possibly affecting a range of themes that bear little similarity to sports gambling. For instance, supporters of so-called”sanctuary cities” — towns that refuse to cooperate with federal immigration officials to enforce immigration laws — have cited the 10th Amendment in late challenges to the federal government’s efforts to enforce conditions on grants for state and local law enforcement. Challenges to the federal government’s recent attempts to enforce federal marijuana laws in countries that have legalized the drug for recreational or medical use may also be dependent on the 10th Amendment.
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