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Free Minds & Free Markets

Chris Christie’s Situational Federalism

New Jersey’s governor says states have a right to legalize sports betting but not marijuana.

As a candidate for the 2016 Republican presidential nomination, Chris Christie promised to stop states such as Colorado from legalizing marijuana. As governor of New Jersey, Christie insists that the federal government has no business stopping his state from legalizing sports betting—an argument that got a mostly friendly reception at the Supreme Court on Monday.

The most likely explanation for Christie's situational federalism is that he does not mind if people bet on sports but cannot abide pot smoking. But there is a legal rationale for Christie's apparent inconsistency, and it says a lot about the extent to which the federal government has usurped powers that the 10th Amendment reserves to the states.

Christie is challenging the Professional and Amateur Sports Protection Act (PASPA), a 1992 statute that says states may not "authorize by law" any form of betting on athletic contests. PASPA, which was intended to "stop the spread of legalized gambling on sports events," exempted Nevada, which had legalized sports betting in 1949, and three states with sports lotteries.

PASPA also allowed New Jersey to establish a system of regulated sports betting in Atlantic City, provided state legislators acted within a year. They missed that deadline, but they finally passed such a law in 2012, the year after New Jersey voters overwhelmingly approved a constitutional amendment authorizing it.

Several sports leagues and the National Collegiate Athletic Association successfully challenged New Jersey's law under PASPA. In 2014 the state legislature tried again, selectively repealing New Jersey's ban on sports betting so that it no longer applied at casinos and racetracks.

The U.S. Court of Appeals for the 3rd Circuit said the selective repeal was tantamount to licensing and therefore violated PASPA. The appeals court rejected New Jersey's argument that requiring it to maintain the ban on sports betting amounts to unconstitutional "commandeering" of state officials in the service of a federal policy goal.

The Supreme Court was much more receptive to that claim on Monday, when at least five justices seemed inclined to agree that PASPA impermissibly intrudes on state prerogatives. It is well established that Congress has no authority to dictate the content of state laws.

Still, as New Jersey's lawyer, Theodore Olson, was forced to concede, a valid federal law "preempts" any state law that's inconsistent with it. PASPA does not preempt state law, Olson said, because it is "a direct command to the states without any effort to regulate sports wagering."

In other words, Congress could have imposed its own ban on sports betting, just as it imposed its own ban on marijuana, in which case any state law inconsistent with that prohibition would be preempted. As Olson noted, the issue of preemption is "in play right now" because marijuana has been legalized for medical use in 29 states, eight of which also allow recreational use.

While merely eliminating state penalties for marijuana offenses does not violate the Controlled Substances Act, licensing marijuana suppliers arguably does. That might be what Christie had in mind when he promised to "crack down and not permit" marijuana legalization if elected president. "Marijuana is an illegal drug under federal law," Christie told radio host Hugh Hewitt in 2015, "and the states should not be permitted to sell it and profit from it."

Can it really be true that the Constitution allows federal interference with state policy as long as Congress frames it as preemption rather than a "direct command"? Only if you accept the Supreme Court's implausible understanding of the power to "regulate commerce…among the several states," which supposedly authorizes Congress to prohibit sports betting, cannabis consumption, and pretty much anything else it does not like, even if those activities never cross state lines.

A properly constrained federal government would leave sports betting in New Jersey to New Jersey and cannabis consumption in Colorado to Colorado. As it is, we are left to argue over the form of federal meddling rather than its substance.

© Copyright 2017 by Creators Syndicate Inc.

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  • BestUsedCarSales||

    You raised all this money, but scared away all the commenters except me and SIV. I hope you're happy Heaton.

  • Telcontar the Wanderer||

    Am I SIV *and* Tony now?

    These corporate mergers really *are* getting out of control.

  • Episteme||

    Silly Reason, potheads can't sports bet. They'd put all their money on the Browns while baked!

  • Hank Stamper||

    I have never been that stoned. Maybe if I were on shrooms but just weed, not gonna happen.

  • Fist of Etiquette||

    Maybe if you thought they said brownies and thought they had pot in them.

  • Mithrandir||

    How is Christie still even relevant?

  • Inigo Montoya||

    I often wonder the same thing about Hilary. The answer might be that it's because they plan to run again. If they're allowed to get anywhere, it will be further proof that both major parties are finished.

  • Rich||

    Serious question: Why doesn't Hillary form her own party?

  • Curt||

    How is Hilary still relevant?

    Because some people can't help but bring her name up in the comments section of an article that had absolutely nothing to do with her?

    She's still relevant in the same way that any polarizing figure is still relevant... her opponents are still obsessed with her.

  • Hank Stamper||

    He is the named litigant(?) in the Christie v NCAA. Which is in front of the Supreme Court.

  • colorblindkid||

    Also, he is still governor after all, and our next governor is sure to be much worse than he is, even though he claims to want to fully legalize weed.

  • Hank Stamper||

    He is the named litigant(?) in the Christie v NCAA. Which is in front of the Supreme Court.

  • Fist of Etiquette||

    The tides?

  • gaoxiaen||

    Because he's approaching The Chandrasekar Limit.

  • Curt||

    I'm not 100% sure, but I assume that refers to the amount of pot that you can eat when pulled over by state troopers before you start to taste snozzberries.

  • Rich||

    a valid federal law "preempts" any state law that's inconsistent with it.

    Witness the "preemptions" of the Second Amendment.

  • Old Mexican's Speedos||

    New Jersey's governor says states have a right to legalize sports betting but not marijuana.


    How dare you suggest that politicians are motivated by expediency and not principles? No, I won't hear of it! Good day, sir!

  • Fist of Etiquette||

    People like New Jersey Democrat Chris Christie will always invite the federal government in to usurp the will of his own state if it means enriching his cronies.

  • gaoxiaen||

    Duh!

  • Longtobefree||

    Oh, No!!
    A politician is hypocritical, two faced, and only interested in tax money and fees!!??
    Say it ain't so!

  • thisbrucesmith||

    It ain't so! There, I said it. (Not that it matters.)

  • Jerryskids||

    While merely eliminating state penalties for marijuana offenses does not violate the Controlled Substances Act, licensing marijuana suppliers arguably does.

    As I pointed out before - the law says a state "may not authorize" sports gambling. Does state law authorize the wearing of blue shirts? No, the law is silent on the issue and it's perfectly legal to wear blue shirts because there's no law to the contrary. New Jersey does not want to legalize gambling, if they did they would just repeal any laws dealing with the issue. Instead, they want to license and regulate it - they don't care if you gamble only so long as they get a cut of the action.

  • Hank Phillips||

    Observe that Herr Christie did NOT get the Republican nomination, so his contention that when Noo Joisey does it it's NOT fascism is just another bubble of superstitious gas gurgling up from the prohibitionist swamp. Also, the current top dawg did not promise to send deputies to all points of the compass to shoot and arrest leaf-fanciers. He simply prophesied that His Miraculous Wall would stop anything bigots call "drugs" from entering These States. Other than that the guy stands on the 21st Amendment that got FDR & Co. elected in five consecutive campaigns.

  • thisbrucesmith||

    I fear the day is coming, sooner rather than later, where America becomes a "police" state - one in which every step you take, every move you make, every bond you break, every cake you bake is subject to congressional fiat under the Commerce clause.

  • Wizard4169||

    They'll be watching you.

  • Amir Najam Sethit||

    Nice post..Thank you for sharing this interesting post.

  • Tionico||

    Can ANY of those clowns making and "enforcing" and suing over these laws explain to us WHERE in the COnstitutioin FedGov have ANY authority to meddle with sports gambling, marijuana, or any other plant or mnieral anyone might or might not put into their bodies, alcohol, tobacco, firearms, equipment on cars, health insurance, etc?

    Dummies seem to think the INterstate Commerce Clause is their ticket to scam. But READ that, and what it really means is Congress are required to "make trade regular amongst the several states". That does not mean to regulate to death, as in, control and micromanage every aspect of anything that can, did , might, or would have if Susie did not sneeze, cross any state line or even THINK about doing so. Nope, that simply means make certain trade amongt the states is functional, not impeded or hindered.

    Yet Feds do nought when California prohibits merchandise from other states coming into that cesspit, including such things as cars, firearms, ammunition, eggs not raised the way California likes them, boat engines, certain chemicals in comon use in other states.... medicines, select foods, goods in packinging not "acceptible" to California's ruling hooh hahs.... and Congress sit on their thick ends and ignores these flagrant violations of the true intent of the Interstate Commerce Clause.

  • Tionico||

    Meanwhile, they want to open the borders, refuse to surrender illegal alien invaders, even criminal ones, to the rightfully established federal agencies, etc. Joisey is the same way, particularly regarding firearms... even in the hands of non residents innocently travelling through, per federal Firearms Owners Protection Act, which Joisey faithfully ignores. Christie can't pick his apples that way. Either FedGov have authority in NJ, or they do not. On everything they claim... its not up to Christie. And I'm glad his panties are in a big bunch over it. Waaah waaah waaahhh

  • Lester224||

    On a tangent re the CC brouhaha - I think anyone can carry firearms from one state to another as long as the ammo is separate from the gun. Need to check.

    However, for CC, some states require that you know how to actually shoot a gun (have a training requirement) while some do not. I don't fault states which have training laws if they don't want people who have no idea how to hit the side of a barn having CC in their state using an out-of-state license. All states require being able to parallel park, stop at a stop sign and execute a 3-point turn to have a drivers license. However, the same doesn't go for having a CC gun license. Rules state-to-state vary very widely.

  • SC Striebeck||

    Situational federalism? I like it! But "arbitrary federalism" may be more accurate.

    Because at the end of the day, it's still a small group of people living off the theft of taxation arbitrarily using force to impose their moral agenda upon others.

    Another great reason more folks would appreciate the Non-Aggression Principle; then live it as the rule of law.

  • AD-RtR/OS!||

    One Man's Delight, is another Man's Devil.

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