Can Congress Stop N.J. From Legalizing Sports Betting?


On Tuesday voters in New Jersey overwhelmingly approved a nonbinding referendum calling for the legalization of sports betting at casinos and racetracks. Legislation to implement the policy, sponsored by state Sen. Raymond Lesniak (D-Union) and supported by Gov. Chris Christie, is expected to pass by the end of the year. But it will clash with the federal Professional and Amateur Sports Protection Act (PASPA), which purports to ban wagering on sports in states that did not already allow it when the law was passed in 1992. As gambling law expert I. Nelson Rose notes, "it is difficult to know where in the U.S. Constitution Congress got this power to begin with," since "gambling has always been an issue for the states to decide on their own." He points out that some forms of sports betting are permitted in Alaska, Delaware, Montana, Nevada, New Mexico, North Dakota, Oregon, Washington, and Wyoming, all of which were grandfathered under PASPA. "It is going to be difficult to find a constitutional reason why nine of the 50 states can have sports betting," he writes, "but New Jersey cannot."

Last March a federal judge dismissed a lawsuit in which Lesniak sought to overturn PASPA, ruling that the issue was not ripe because sports betting was still illegal in New Jersey. Once the legislature enacts Lesniak's bill, however, the lawsuit can be revived. Rose thinks it will be successful, but litigation could delay the introduction of sports betting in New Jersey (and other states that might decide to follow suit) for years if the U.S. District Court's order is stayed pending an appeal to the U.S. Court of Appeals for the 3rd Circuit.

While all bans on gambling strike me as ridiculous, singling out sports betting is especially absurd, rather like allowing the slaughter of cows, pigs, and sheep for food but drawing the line at horses. It is outrageous that organizations such as the NFL, which argues that betting sullies the integrity of the sport, think they have a right to stop other people from wagering on their games. It is even more outrageous that legislators accept that argument, especially when, as in the case of ASPA, they have no legal authority to impose their arbitrary preferences on others.