The state of New Jersey is on a constitutional collision course with both the federal government and several of the biggest names in professional and collegiate sports. At issue is whether Congress violates the 10th Amendment when it forbids the Garden State from partially repealing its own statewide ban on sports betting.
The case is Christie v. National Collegiate Athletic Association, and it has the makings to be one of the biggest federalism cases in years. The U.S. Supreme Court will hear arguments in it later this fall.
On one side stands the state of New Jersey, whose voters amended the state constitution in 2012 in order to legalize sports gambling at racetracks and casinos statewide. Lawmakers then partially lifted the existing state ban on the practice.
On the other side of the case stands the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball, all of which went to court hoping to thwart the legalization effort. They argue that the state has contravened the Professional and Amateur Sports Protection Act of 1992 (PASPA), which made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting.
That federal law did contain certain exemptions for states like Nevada, where sports gambling was already legal. (It also contained an exemption for Atlantic City, New Jersey.) But the law's overall purpose was to prevent states from legalizing sports betting.
New Jersey is now fighting to get the feds off its back. "Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal."
The sports leagues insist that the federal government has every right to control the states in this manner. PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the leagues claim in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy on matters within Congress' purview."
The Trump administration takes an equally broad view of federal power. PASPA "does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state officials to administer federal law," the administration told the Court in an amicus brief. "Instead, [PASPA] prohibits States from operating sports-gambling schemes themselves or affirmatively licensing or authorizing private parties to do so. Those prohibitions are a permissible exercise of Congress's authority to regulate state activities and to preempt state laws that conflict with federal policy in an area within Congress's enumerated powers."
A nationwide ban on sports betting would probably be upheld by the Supreme Court under existing precedent, which favors a very broad view of Congress' power to regulate economic activity. But that is not the sort of federal regulation at issue here. In this case, Congress has effectively dictated the terms of a state law in order to further its own regulatory goals. And that, the Supreme Court has repeatedly said, does offend federalism principles and does infringe on the 10th Amendment.
In the 1992 case of New York v. United States, for example, the Court observed: "while Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions."
The late Justice Antonin Scalia made a similar point in his 1997 majority opinion in Printz v. United States. "Federal commandeering of state governments" goes against the text, history, and structure of the Constitution, Scalia wrote. "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."
The big unknown in Christie v. National Collegiate Athletic Association is whether the justices will put federalism or federal power first. Place your bets now.