MENU

Reason.com

Free Minds & Free Markets

Supreme Court Strikes Down Federal Law That Prohibited States From Legalizing Sports Gambling

“A more direct affront to state sovereignty is not easy to imagine.”

In a major victory for federalism advocates, the U.S. Supreme Court today struck down a provision of federal law that prohibited state governments from legalizing sports gambling. "That provision unequivocally dictates what a state legislature may and may not do," the Supreme Court observed in Murphy v. National Collegiate Athletic Association. "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."

At issue in Murphy v. N.C.A.A. was a provision of 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.

The state of New Jersey ran afoul of PASPA after voters amended the state constitution in order to legalize sports betting at racetracks and casinos. State lawmakers followed up by enacting a partial repeal of the existing state ban.

That partial repeal drew the ire of 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 in an effort thwart the Garden State's legalization effort. The sports leagues argued that the state had explicitly contravened the federal rule barring state legalization as spelled out in PASPA. The U.S. Justice Department agreed with the leagues and filed a supporting brief urging SCTOUS to rule against New Jersey.

In its opinion today, the Supreme Court acknowledged that New Jersey had indeed violated PASPA, but then concluded that the provision at issue was itself unconstitutional under the federalism principles contained in the 10th Amendment. "The legislative powers granted to Congress are sizable, but they are not unlimited," the Court observed. "The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States."

The majority opinion in the case was written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan, and Neil Gorsuch. Justice Stephen Breyer concurred in part and dissented in part. Justice Ruth Bader Ginsburg dissented in full, joined by Justice Sonia Sotomayor.

The Supreme Court's opinion in Murphy v. N.C.A.A. is available here.

Click below to watch a Federalist Society video on the case featuring yours truly.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Alan Vanneman||

    "And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States."

    Oh, Sammy, you bitch!

  • BrianB||

  • ||

    A 10th Amendment decision? Hot damn!

  • BestUsedCarSales||

    No shit. I had the same reaction when seeing that. Let's have the age of the 10th amendment.

  • loveconstitution1789||

    Sometimes the enemy (government taxation) of my enemy (government unconstitutional regulation) is my friend.

    I would suspect Congress will want to butt into sports gambling more under interstate commerce.

  • Kazinski||

    Problem with that is that is they want to keep it legal in Nevada, federal legislation can't keep it legal there, but outlaw it in New Jersey.

  • Pro Libertate||

    Wow.

  • Flinch||

    Not only that, but it actually views the commerce clause correctly: to promote it, not strangulate or micromanage it. I'm no fan of gambling, but this is one the states have to sort out, and congress had an aneurysm attempting prohibition without an amendment. They read next to nothing anymore.

  • Eidde||

    Hmmm...I wonder if this decision has any other (puff puff) implications...

  • Juice||

    I'm shocked that they didn't just use the old tried and true commerce clause like they did in Raich.

    Surely sports betting "affects" interstate commerce in some way somewhere.

  • Marcus Aurelius||

    I have to drive interstate to make my bets in Vegas...

    My guess is they see offshore internet gambling being successful and want a piece of the action.

  • Eidde||

    I would guess (without actually reading the opinion) that this involves the principle that the feds can't conscript the state governments, even to enforce a valid federal law.

  • Eidde||

    They can't order a county sheriff to enforce a federal statute, much less can they order a state legislature to enforce a federal statute or policy.

  • CMurph||

    Perhaps they can't order them (yet) but they can certainly bribe them by sharing fed.gov tyrannical powers and capabilities or returning a pittance of tax money fed.gov originally stole from the people of the states:

    http://tenthamendmentcenter.co.....sk-forces/

  • Fairbanks||

    There is nothing in the decision preventing Congress from enacting a law under the commerce clause, or any other power the Feds deem lawful. In fact, the decision explicitly says Congress can do that. The issue in this case is that Congress has not passed any law prohibiting sports gambling. Instead, Congress told the states what laws the states can and can't pass.

  • Eidde||

    Governor LePage of Maine and other politicians have tried to block state-leval MJ legalization by using federal-supremacy arguments, and this decision should take the wind out of their sails.

    Even if it doesn't directly rein in the DEA and other federal agencies.

  • BestUsedCarSales||

    This is the age of meta-legislation.

  • Colossal Douchebag||

    Commerce Clause applies only to interstate/international.

    Congress won't be able to use it to stop this.

  • Eidde||

    Let's not get ahead of ourselves - the feds can't act through the states, but they can still act through the DEA, at least until the Supremes decide to enforce the 10th Amendment more than they have to date.

  • Colossal Douchebag||

    IIRC, the butterfly-effect reasoning with marijuana was that it fell under Commerce because growing in one state would certainly (insert vigorous gesticulation here) affect commerce in others. It's that kind of crap reasoning this decision needs to start pulling apart.

  • JesseAz||

    The start of this idiocy was wickard who wasn't even selling his excess wheat. But since be wouldn't buy wheat he could grow, he effected commerce. Blame liberals.

  • Fairbanks||

    It depends on how broadly the courts interpret interstate commerce as it relates to gambling. A prior SCOTUS ruled that the feds can restrict your right to grow crops on your own property for your own use under the interstate commerce clause. But I'm not sure this court would interpret so broadly.

  • Tionico||

    Yes, and that FIlburn decision was flat out wrong, and has opened Pandora's box to "justify" anything that dark corrupt heart of Congress want to justify. It needs to be reexamined, and reversed.

    If those bozos would READ that "interstate commerce clause" and use the definitions in place at the time it was written, they'd realise their real job is to make certain trade between/amongst the states is to be unrestricted, that is, to be "made regular", as a clock that keeps accurate time is "made regular'. That would shut down the current boondoggle of some states demanding Amazon impose sales taxes on ALL sales going to certain states. That is an illegal tax on goods moving interstate. California, andnow Washington, demanding cars sold in those states meet certain more stringent standards is another. Prohibitions against selling medical insurance across state lines, check. California, New Jersey, Massachussetts, New York imposing their own requirements for certain firearms, and ONLY those complying with their fantasy list can be sold inside their states. The ICC is used to "justify" things like lawnmower, kid safety seat, pillow, dishwasher, water heater, "safety" standards.

  • Tionico||

    Yeah, right. That nickel I spend in sports gambling inside my state is a nickel that I MIGHT have spent buying two rounds of .22 LR ammunition made in some other states. Big rip........

  • Flinch||

    Taking your queue, does this decision finally open a path to smash wickard v filburn? As bizarre as our court systems are, I don't know: they might just decide that physical casinos are damaging online gambling and force them to pay extra taxes, served up by the noodles running DC in yet another bill nobody read.

  • Fairbanks||

    Not implications for marijuana use. Congress passed laws on that. The issue in this case is that Congress has not passed any law prohibiting sports gambling. Instead, Congress told the states what laws the states can and can't pass.

  • Tionico||

    except that the Tenth clearly states that if the Constitution does not clearly give US Govt specific authority over cannabis (it clearly does NOT) then FedGov cannot pass ANY laes, regulations, etc, regarding cannabis. And unless the Constitution specificially denies that authority to ALL the states, the states retain the authority to legislate or control the stuff. So, yes, marijuana IS a Tenth Ammendment issue. And per the Tenth, FedGov have NO authority to regulate or manage or contorl ANYTHING we do or do not put into our bodies.
    And no, I don't use the stuff, but believe it must be taken out from Fed hands, the DEA dismantled, and the states left to do as they wish. Leave it to the voters of each state to elect "representatives" that will handle it as the voters wish. Don't like the way they decide? Move to a state that does it the way YOU like it. THAT is Federalism at work.

  • wreckinball||

    I like the decision but does this indicate that 10A is alive? If yes there are a whole lot of other things that can be thrown out.

  • Juice||

    Time to overturn Gonzales v. Raich (the 21st century Wickard v. Filburn).

  • Leo Kovalensky II||

    "The legislative powers granted to Congress are sizable, but they are not unlimited," the Court observed. "The Constitution confers on Congress not plenary legislative power but only certain enumerated powers."

    Wait, we have 7 justices concurring on the above??? I never thought I'd see the day!

  • loveconstitution1789||

    The lefty justices are using this decision to push for some lefty pet project, just you watch.

    Its still a good day for state's rights.

  • Rev. Arthur L. Kirkland||

    Bad day for apostrophes, though.

  • loveconstitution1789||

    Aw, poor you.

  • Tionico||

    I'm; a' think'in' that the a'post'rophe is way' under'appreciated and certn'ly mis'used and/or mis'quoted.

  • hskiprob||

    An honorable member of the Court would never makes such mistakes, it must always be blamed on the scribes.

  • Eidde||

    We can get 7 justices to concur on the Constitution being a nice thing, doesn't mean that in the crunch, and under pressure from their respective sides, they'll actually live up to that.

  • BigT||

    RBG and the wise Latina still suck state dick!

  • Rev. Arthur L. Kirkland||

    Only when Alito and Thomas get tired enough to take a break and let others have a chance.

  • BigChiefWahoo||

    Feeling OK, Reverend? You don't seem your usual self, today.

  • loveconstitution1789||

    Massive setbacks since Trump has been elected.

    Lefties are retreating on all fronts.

  • ||

    Also, after a quick read, it appears that the Notorious RBG mostly took issue with the lack of severability of this clause. She doesn't appear to attack the 10th Amendment reasoning. For all practical purposes, this is a unanimous decision.

  • loveconstitution1789||

    RBG cannot have states challenging the fed on a whole bunch of 10th Amendment grounds.

  • Fairbanks||

    Absolutely correct. She thought another part of the law should stand, but agreed with the decision that the feds can't tell the states what laws they can and cannot pass. Interestingly, Thomas had a dissent in which he said the Court should entirely dispense with the issue of severability. If any part of a law is unconstitutional the entire law should be thrown out.

  • BigT||

    Laws are often compromises. So severability destroys the rationale for many agreeing to pass the law.

  • ||

    Maybe the compromises shouldn't involved violating the Constitution then.

    I love Thomas's thoughts.

  • Fist of Etiquette||

    OMG THEY STRUCK DOWN THE INTERSTATE COMMERCE CLAUSE.

    Also, notice how Root has a more respectable beard for doing Federalist Society videos.

  • Weigel's Cock Ring||

    Some of the best news since Hildog was defeated! I am a little bit more free now than I was a couple of hours ago.

  • Marcus Aurelius||

    Give it time...

  • Weigel's Cock Ring||

    Not surprisingly, the list of howling jackals demanding to get "their cut" of the sports betting action is already lining up from the west coast to the east coast.

    Here's hoping every state tells all these jackals that they can go fuck off.

  • Rhywun||

    And just like with smoking, which finances an ever-growing percentage of government, they'll be talking out of both sides of their mouth about this.

  • Ken Shultz||

    "The legislative powers granted to Congress are sizable, but they are not unlimited," the Court observed. "The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States."

    Implications for marijuana legalization?

  • Fairbanks||

    Not at all. The Feds passed a law on the illegality of marijuana use. The issue in this case is that Congress has not passed any law prohibiting sports gambling. Instead, Congress told the states what laws the states can and can't pass.

  • ||

    None. It leaves all standing Commerce Clause doctrine fully in place. PASPA was a poorly crafted law. All existing Schedule I regulation is fully Federal and puts no specific obligations on the States.

  • Tionico||

    except that the Constitution nowhere grants FedGov any authority to pass any laws, rule,s regs, regarding a plant that anyone can grow. Thus the Controlled Substances Act is unconstititinoal on its face, being how FedGov meddles where they are not granted leave to meddle. Further, the entire premise that cannabis should be a schedule One drug was a falsification of the highest order. A law passed on a false premise is no law at all.

  • RPGuy16||

    That's not what Scalia said.

  • Hattori Hanzo||

    The Marxist justices dissented in full? You don't say.

  • Stephdumas||

    I guess it's time for Las Vegas to diversify its economy and depends less of gambling industry if they don't want to be a new Detroit. ;-)

  • Tionico||

    Wait a minute.. what am I missing here? There is a federal law that prohibits states from legalising a certain activity on which the US Constitution is silent. So a state legalised that activity. Some folks decided they did not like that, never mind the Constitution does NOT grant fedGov the power to regulate the activity, this leaving it to the States, or to the People, per Tenth Article of Amendment. SO now SCOTUS declares that section of Federal law unconstitutional, on the basis that the Constitution does NOT specifically grand FedGov that power.
    So what, exactly, is the problem with that? WOuld that that SCOTUS would go to bat and knock down a few hundred similar laws that usurp state or people reserved powers but at the federal level. Woud that this would be a sign portnding a huge landslide of similar strikings. Let's see now.... when will drug regulatioins, car requirements, ("saaaafety and smog and whatever else the eedjits decide we MUST HAVE), all the agriculture laws, raw milk, honey, corn subsidies, ethnol fuel mandates, the entire NLRB,

  • mchughjj||

    What is not clear from the article is what, if any, implications the rule has upon states prohibiting gambling purchased from an address within certain states. The only time I tried to put a few dollars on a horse in the Kentucky Derby, I was prohibited from doing so because my billing address is in South Carolina. In the modern context, this issue has more to do with individual rights than the States vs. the feds. After all, New Jersey already makes plenty from the casinos.

  • texexpatriate||

    Let us hope things are turning around. The most direct affront to States Sovereignty is the 14th Amendment. In 1868 the GOP enacted that amendment through chicanery when it could not be ratified by electors from the states. The GOP removed some electors and replaced them with others until they could get the votes they needed for a fraudulent ratification. The GOP also refused to allow four states from the north to change their votes from yes to no. Within that amendment was the transfer of State Sovereignty to the federal government. Federalism was intended to allow a central (Federal) national government to do for the states what the states could not do for themselves. Since 1868 both political parties have governed as a tyrannical federal oligarchy, forcing the states to do as the Federal government dictates.

  • CE||

    I thought it was the 55 mph federal speed limit and using federal highway funds as leverage.

  • John C. Randolph||

    Justice Ruth Bader Ginsburg dissented in full, joined by Justice Sonia Sotomayor.

    Of course they did. The last thing that pair of fascist harpies will ever do is rule against usurpation by the federal government.

    -jcr

  • CE||

    It takes a certain type of wisdom to see through the plain text of the 10th Amendment to what is really at the core of American democracy and best for the general welfare.

  • CE||

    "The legislative powers granted to Congress are sizable, but they are not unlimited," the Court observed. "The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States."

    The majority opinion in the case was written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan, and Neil Gorsuch. Justice Stephen Breyer concurred in part and dissented in part. Justice Ruth Bader Ginsburg dissented in full, joined by Justice Sonia Sotomayor.

    2 Supreme Court justices disagreed that the Congress of powers are enumerated and not unlimited? How did they pass law school?

  • CE||

    powers of Congress rather

  • hskiprob||

    To me, this should simply be a constitutional argument based on the inalienable right to gamble covered by the IX Amendment. I found similar opponents to legalized casino gambling in 1992 when we tried to get it passed. The Miami Dolphins, the FL Marlins, all the parimutuels (horse, Jai alai, and dogs), Carnival Cruise Lines (Offshore Gaming), etc. It appeared to be special interests from both the entertainment and gaming industry, trying to keep out more competition. Isn't that how our laws work today. To the deepest pocket goes the law.

    I think the Declaration, Constitution, and Bill of Rights have been torn to shreds giving way to greater centralized power and the usurpation of our inalienable rights.

    Now if you can provide the scientific evidence that gambling corrodes the ethical/moral integrity of a community, then I may change my mind. However, until such time, I'm tired of all the unproven Judicial decision granting greater centralized powers. I'm tired of all the biased opinions. I want facts and not prior case laws simply based on prior opinions. Opinions are like ________.

  • hskiprob||

    To me, this should simply be a constitutional argument based on the inalienable right to gamble covered by the IX Amendment. I found similar opponents to legalized casino gambling in 1992 when we tried to get it passed. The Miami Dolphins, the FL Marlins, all the parimutuels (horse, Jai alai, and dogs), Carnival Cruise Lines (Offshore Gaming), etc. It appeared to be special interests from both the entertainment and gaming industry, trying to keep out more competition. Isn't that how our laws work today. To the deepest pocket goes the law.

    I think the Declaration, Constitution, and Bill of Rights have been torn to shreds giving way to greater centralized power and the usurpation of our inalienable rights.

    Now if you can provide the scientific evidence that gambling corrodes the ethical/moral integrity of a community, then I may change my mind. However, until such time, I'm tired of all the unproven Judicial decision granting greater centralized powers. I'm tired of all the biased opinions. I want facts and not prior case laws simply based on prior opinions. Opinions are like ________.

  • Bongo Supreme||

    Once again, RBG sides with anything that expands government power. Absolutely cannot wait for her to croak.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online