SCOTUS Feigns Federalism in Sports Betting Decision

Congress can't "commandeer" state legislators, but it can achieve the same result with "preemption."


This week seven members of the Supreme Court agreed that Congress exceeded its powers when it passed a law that prohibited states from legalizing sports betting. But the ruling was not quite the vindication of state sovereignty that it appeared to be, since almost all of the justices also seemed to agree that Congress could have achieved the same result by passing a slightly different law that would have been constitutional.

The statute that the Court overturned, the Professional and Amateur Sports Protection Act (PASPA), made it illegal for a state to "authorize by law" any sort of wagering on athletic contests. Enacted in 1992, PASPA made an exception for Nevada but otherwise left Americans, who according to informed estimates bet more than $100 billion a year on games, no legal way to do so.

New Jersey, which wanted to legalize sports betting at casinos and racetracks, argued that PASPA violated the "anticommandeering rule," which says Congress cannot order state officials to carry out its policies. The Supreme Court agreed.

PASPA "unequivocally dictates what a state legislature may and may not do," Justice Samuel Alito writes in the majority opinion. "It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine."

Less direct affronts to state sovereignty, however, are easy to imagine, and the Supreme Court is OK with them. "Congress can regulate sports gambling directly," Alito says, "but if it elects not to do so, each State is free to act on its own."

The implication is clear: If Congress decides to "regulate sports gambling directly"—by banning it outright, say—each state is not free to act on its own. In that case, the federal ban would "preempt" state law, because acts of Congress are "the supreme law of the land."

According to the Court, PASPA's command regarding state law does not qualify as a "valid preemption provision" because it is addressed to legislators rather than "private actors." It is an attempt to "regulate state governments' regulation" of their citizens, Alito observes, and "the Constitution gives Congress no such power."

By contrast, Alito takes it for granted that the Constitution gives Congress the power to ban sports betting. Writing in dissent, Justice Ruth Bader Ginsburg identifies the source of this supposed power: the authority to "regulate commerce…among the several states."

You might not realize you are engaged in interstate commerce when you bet on a basketball game with a local bookie. But as Ginsburg explains, "Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

Ginsburg is quoting a 2005 decision dealing with the federal ban on marijuana, the upshot of which was that Congress can use the Commerce Clause as an excuse to regulate pretty much anything it wants. Clarence Thomas, one of three dissenters in that case and the only one remaining on the Court, is the only justice who saw fit this week to question the assumption that Congress has the authority to "prohibit sports gambling that does not cross state lines."

The ridiculously broad interpretation of the Commerce Clause that most of the Court seems to accept is a relatively recent invention. It required a constitutional amendment to ban alcohol, and even Harry Anslinger, the legendary pot prohibitionist, took it for granted that Congress did not have the authority to ban intrastate cultivation, distribution, and possession of marijuana.

The Commerce Clause has not changed since then, but the ambitions of national politicians have, and the Supreme Court is eager to accommodate them. Notwithstanding its lofty talk about the importance of federalism in protecting liberty and promoting accountability, the Court lets Congress override state autonomy as long as it pretends to be doing something else.

© Copyright 2018 by Creators Syndicate Inc.

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  1. If they can’t ban it through the Commerce Clause, they could still ban it through the Tax Clause.

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  2. So much for enumerated federal power. We all learn it in school but it’s apparently not true. It’s ridiculous. I don’t how a rational honest person doesn’t just lose all hope in this madhouse world.

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  3. It is the rotten fruit of Wickard vs Filburn, which I suppose is relatively recent (76 years), but there should be no surprise that every SCOTUS justice save Thomas is loathe to question that precedent. Too much of our current government policies are built on that usurpation by the federal government.

  4. Professional and Amateur Sports Protection Act

    Won’t somebody please think of the professional sports?!

  5. If Congress decides to “regulate sports gambling directly”?by banning it outright, say?each state is not free to act on its own. In that case, the federal ban would “preempt” state law, because acts of Congress are “the supreme law of the land.”

    If they did that though, would they be able to give Nevada (really casino owners like Sheldon Adelson and other cronies) a special carve out?

  6. Scalia’s decision in Raich is an embarrassment.

  7. We have got to create some kind of punishment for those who write unconstitutional laws. How the hell is there no punishment for that??

    1. Every president for the lasts couple of decades has wound up defending something with their signature on it as constitutional. You think they’re going to put their signature that says signing an unconstitutional law could “punish” them somehow?

      How about the senate and house? All those unconstitutional laws start there. How many congress-critters do you think can honestly say that no law that they voted for has been found unconstitutional?

      And it’s not even like it’s maleficence in most cases. In most cases, lobbyists, legislators, the president, the DoJ, all genuinely believe that a law is constitutional. And in most cases, it’ll be years and years before the courts give any indication that they’ve changed their mind and that a previously constitutional law is now unconstitutional.

      And that’s before we even talk about how we’d be retroactively punishing folks for doing something that was legit at the time and only later became a constitutional problem.

      So yeah. The only real “punishment” for unconstitutional laws remains the ballot box. And as we see time and time again, folks that push unconstitutional laws often do so with the support of their base, and are rewarded as martyrs rather then punished for wasting folk’s time.

    2. The Constitution provides for only one punishment for that crime – you get to vote the bums out.

      The fact that we keep failing to hold our own politicians accountable means that we keep getting the government we deserve.

  8. The thing about precedent is, it can keep lawyers and judges from ever having to really think about the law.

  9. And how on Earth does the carve-out for Nevada not violate equal-protection?

  10. There is one big difference between cooption and preemption — who pays to enforce the law. If the states are required to criminalize betting (or anything else), state law enforcement officers are charged with upholding the law, and this comes out of the state’s budget. If the federal government outlaws betting, the FBI or other agencies have to enforce it, and that enforcement comes out of the federal budget.

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