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Today at SCOTUS: Does the Federal Ban on Sports Gambling Violate the 10th Amendment?

The Supreme Court hears oral arguments in Christie v. N.C.A.A.

Gage Skidmore / Flickr.comGage Skidmore / Flickr.comThe Professional and Amateur Sports Protection Act of 1992 made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. In oral arguments today in the case of Christie v. National Collegiate Athletic Association, the U.S. Supreme Court will consider whether that federal law runs afoul of the 10th Amendment and its underlying principles of constitutional federalism.

On one side of Christie v. N.C.A.A. stands the state of New Jersey, whose voters amended the state constitution in 2012 in order to legalize sports gambling. Garden State lawmakers responded by partially lifting the existing state ban on the practice at casinos and racetracks.

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 seek to prevent the state's legalization efforts.

The sports leagues argue that New Jersey is illegally flaunting the Professional and Amateur Sports Protection Act and should be stopped. New Jersey argues that that federal law is overreaching and unconstitutional.

The outcome of the case is likely to turn on the Supreme Court's application of two precedents from the 1990s. In New York v. United States (1992), the Court held that "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."

Five years later, in Printz v. United States (1997), the Court continued in this vein. "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." In short, "federal commandeering of state governments" goes against the Constitution.

The legal question at the heart of Christie v. N.C.A.A. is whether the Professional and Amateur Sports Protection Act, or PASPA, violates the anti-commandeering doctrine set forth in New York and Printz.

New Jersey argues that PASPA does violate the doctrine and should therefore be declared unconstitutional. "Under our Constitution," the state argues, "if Congress wishes for sports wagering to be illegal, it must make the activity unlawful itself. It cannot compel States to do so."

The sports leagues take the opposite view. "Congress' power to regulate gambling on a nationwide basis," the leagues maintain, "is as settled as its power to prohibit states from undertaking or authorizing conduct that conflicts with federal policy, and nothing in [New Jersey's] arguments calls either commonly exercised power into question."

Which side will prevail in this dispute, federalism or federal power? We'll get our first indications during today's oral arguments.

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  • Billy Bones||

    I have long given up trying to guess what SCOTUS will do. But it seems to me that Mr. Christie has a good case (God those words taste awful first thing on a Monday morning). I don't see how the Federal government can forbid an activity throughout the country while making exceptions in some areas (looking at you Vegas). I understand the "grandfathering" and that New Jersey had the opportunity to be protected under that "grandfathering", But this is another example of government picking winners and losers.

  • Bubba Jones||

    Agreed. They can't exactly argue that it is a heinous wrong. Only that they have the naked power to do such things.

  • Tom Bombadil||

    The Nazgul answer only to the One Ring. You'd think the One Ring would be the Constitution, but you'd be wrong.

  • ||

    I don't see how the Federal government can forbid an activity throughout the country

    That's not what they did. The Federal government stated that they were the only Government entity in the U.S. that could make it legal. Seems to be a pretty clear abrogation of the the Police Power codified in the 10th.

  • Jerryskids||

    The Professional and Amateur Sports Protection Act of 1992 made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting.

    If I'm reading this correctly, sports gambling can be as perfectly legal as wearing a blue shirt. So long as the state isn't licensing or regulating or authorizing gambling - remaining silent on the issue in other words - there's no conflict with the federal law. Of course, you know damn well New Jersey (or any other government entity) isn't interested in the liberty of its citizens to gamble if they want to, their only concern is in getting their cut of the vig specifically by charging licensing fees. If one of them gets a bright idea, they will be requiring licenses to wear blue shirts.

  • Number 2||

    Coming Soon: wait to see the vig the State takes from "legalized" marijuana.

  • Robert||

    I read it that way too. But the way the plaintiff is reading it, "authorize by law" includes allowing it by a legislative act specifically repealing a prohibition vs. it. But even then, the state might be allowed to do it by repealing the entire state code, so that the state would be statute-lawless, then re-enacting all of it except that bit. But a new plaintiff might then claim that any change in state law that results in sport gambling that had formerly been illegal becoming legal is illegal.

  • ||

    No state will ever legalize gambling of any sort without sticking their finger into the pie. It'll be either explicitly illegal or legal and regulated (i.e. taxed).

  • loveconstitution1789||

    I wonder when Nevada's, perfectly legal, sports betting practices will be discussed.
    Nevada sports betting

  • Earth Skeptic||

    This entire topic seems to be another example of WTF does government, at any level, have justification to do regarding betting on sports (or anything).

    I suppose those who promote paternalistic big brothers (sisters? non-gender specific figureheads?) and fear the sad results for compulsive gamblers want to "do something".

    And I get that much energy shown by the states, the feds, and the pro sports themselves is just greedy jostling near the cash trough.

    But can we just challenge the basic premise?

  • Robert||

    This reminds me of the issue in the Romer case, wherein Colo.'s adoption of a constitution provision prohibiting localities from enacting antidiscrimination ordinances on the subject of homosexuals was deemed to violate the US 14th Amendment by singling them out like that. The logic here would be similarly that by passing a measure that explicitly lifted some state prohibitions against gambling, the state was authorizing such biz in violation of federal law that said the state couldn't authorize such. In other words, treating a repealer as the same as enacting new material in the state code.

    Seems the only way around that would be for NJ to repeal its entire state code, then separately re-enact it w/o that part.

  • Hank Phillips||

    All through the 1920s These States repealed their "concurrent" prohibition laws. Mystical bigots fumed and fretted, but could do nothing. That movement and the Liberal Party opened the way for the 21st Amendment.

  • Longtobefree||

    I am sure that the tenth amendment will be as protected as the second, fourth, and first.
    And the wonderfully elastic commerce clause.

  • Domestic Dissident||

    It's even funnier (and more absurd and pathetic) when you consider that the same government shitheads that say sports betting is illegal also claim at the same time that horse racing is somehow different and not a sport.

  • T. Lord||

    Drive-by: "Flouting," not "flaunting" :)

    Slightly less drive-by: The absurdity on this front is so thick on the ground it's a bit crazy-making. That any kind of betting on outcomes (sports or not) is even addressed by legislation is already dream-logic land, even if legislation offered specific endorsement and protection of the right to gamble. (It is worse, of course, when the rule is "Thou shalt not," but it's a matter of degree.)

    Things like this make me want to take up gambling! (Surely not the intended result.)

  • IceTrey||

    "prohibit states from undertaking or authorizing conduct that conflicts with federal policy,"

    What about the legal cannabis states?

  • Hank Phillips||

    I supported myself gambling as a minor in prep school, and real poker skills are what made These States Great, I'd wager. Banning gambling only subsidizes mysticism and robs people of the opportunity to learn from experience.

  • billdeserthills||

    I have a better question, The Supreme Court ruled over a year ago that law enforcement may break the law while enforcing the law--Goodbye Bill of Rights
    Why is it that nobody noticed or seems to give a damn?

  • Cloudbuster||

    Does the Federal Ban on Sports Gambling Violate the 10th Amendment?

    I don't know, but it violates article I, section 8, which grants Congress no powers to regulate gambling.

  • AD-RtR/OS!||

    10th-Amendment.....What 10th-Amendment?

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