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Sports Gambling Decision is a Major Victory for Federalism

The Supreme Court's invalidation of a federal law preventing state legalization of sports gambling strengthens protection for state autonomy from the federal government.

Earlier today, the Supreme Court issued its decision in Murphy v. NCAA, striking down a federal law that blocks states from "authorizing" sports gambling under their own state laws. The ruling is a major victory for federalism, and has important implications that go beyond the issue of sports gambling. It is also notable that the ruling was a 7-2 decision, with liberal justices Stephen Breyer and Elena Kagan joining the five conservatives in the majority. It is the latest of a series of cases in which one or both of them have joined with the conservative block in showing at least some willingness to enforce structural constraints on federal power (a phenomenon I discussed in this article).

Murphy invalidates a provision of the federal Professional and Amateur Sports Protection Act (PASPA), which mandates that states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. A coalition of sports leagues, including the NCAA, the NBA, the NFL, and Major League Baseball, filed a lawsuit arguing that New Jersey's 2012 and 2014 laws partially legalizing sports gambling within the state qualifies as "authorization" and thus violates PASPA. New Jersey, for its part, argued that that PASPA violates the "anti-commandeering" principles of the Tenth Amendment. Under several longstanding Supreme Court precedents, the Tenth Amendment prevents the federal government from compelling the states to enforce federal law, including by forcing state legislatures to enact laws of their own. PASPA was defended by an unlikely coalition of major sports leagues, and the Trump administration; unlikely because Trump has engaged in a war of words and Tweets against various NFL and NBA players, coaches, and owners who condemn his administration and (in the case of NFL players) kneel during the national anthem. The Supreme Court majority agreed with the sports leagues that New Jersey's law violates PASPA, but also agreed with New Jersey that PASPA is unconstitutional.

To get around the anti-commandeering doctrine, the sports leagues and the administration claimed that there is a distinction between commandeering and blocking "affirmative authorization" of gambling under state law. In their view, PASPA does not qualify as "commandeering" because it does not prevent complete legalization of sports gambling, but only state laws that affirmatively authorize gambling in some way, as New Jersey supposedly does by restricting it to some types of locations and limiting the range of teams that gamblers can bet on. Writing for a 7-2 Supreme Court majority, Justice Samuel Alito correctly concluded that this is a distinction without a difference:

The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States [which gives states somewhat broader discretion to modify anti-gambling laws]. In either event, state legislatures are put under the direct control of Congress. 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.

Neither [the sports leagues] nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter....

This distinction is empty. It was a matter of happenstance that the laws challenged in New York [v. United States] and Printz [v. United States] commanded "affirmative" action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.

Here is an illustration. PASPA includes an exemption for States that permitted sports betting at the time of enactment,... but suppose Congress did not adopt such an exemption. Suppose Congress ordered States with legalized sports betting to take the affirmative step of criminalizing that activity and ordered the remaining States to retain their laws prohibiting sports betting.There is no good reason why the former would intrude more deeply on state sovereignty than the latter.

Justice Alito is exactly right. The distinction between legalization and "authorization" collapses under any serious scrutiny, because virtually any law that legalizes a previously banned activity, but does not completely abolish all restrictions on it, can be described as authorization. As Alito points out, neither the sports leagues nor the Trump administration could explain exactly where legalization ends and affirmative authorization begins. A decision upholding PASPA would essentially have gutted the anti-commandeering rule, as the federal government could easily get around it by adopting regulations preventing states from legalizing previously forbidden behavior, so long as the legalization law did not completely eliminate all legal constraints on it.

The ruling has important implications for sports betting, which states are now largely free to legalize as they see fit. Many may follow New Jersey's example. The scope for state legalization of sports betting is increased by the fact that the the Supreme Court majority also struck down all the other provisions of PASPA, which it concluded cannot be "severed" from the unconstitutional ban on "authorization" of sports gambling. These include sections barring states from operating sports gambling facilities, forbidding the operation of sports gambling facilities by private parties "pursuant" to state law, and restricting advertising of sports gambling.

Murphy is also significant for state policies legalizing, under state law, other activities that the federal government may oppose, including marijuana use, possession of some types of firearms, and others. The federal government can no longer block such legalization by passing laws that require states to continue to bar these activities under their own laws. In many cases, the federal government can still ban various activities by making them directly illegal under federal law. But if it cannot rely on the backing of the states and their own laws, enforcing such federal prohibitions in dissenting states can be expensive and difficult. In practice, federal prohibition of gambling, drugs and other activities relies heavily on state cooperation and support. Today's decision reinforces the constitutional rule that empowers states to deny such assistance.

Perhaps most importantly, Murphy v. NCAA makes clear that a majority of the Court is strongly committed to the anti-commandeering principle. That bodes well for state efforts to oppose commandeering (and perhaps other types of federal coercion) in other areas. The most notable currently ongoing examples are the sanctuary cities cases, in which the Trump administration has been trying to force state and local governments to assist federal efforts to deport undocumented immigrants.

Critics often claim that the Supreme Court's anti-commandeering jurisprudence has no basis in the text and original meaning of the Constitution. But, as legal scholar Michael Rappaport showed in an important article, these decisions have a basis in the Founding-era understanding of the word "state," which implied a sovereign authority that the federal government could not undercut by seizing control over the state's government apparatus.

Legal battles over federalism will surely continue. We are still a long way from where we should be on enforcing constitutional constraints on federal power. But today's ruling is an important step in the right direction.

UPDATE: Some media accounts are describing this as a 6-3 decision rather than a 7-2 decision, because Justice Stephen Breyer joined with the dissenters on the severability issue. But he joined the majority on the constitutional issue at the heart of the case: whether PASPA's ban on state "authorization" of sports gambling violates the anti-commandeering principle. In my view, therefore, the decision was 7-2 on the most important question at stake.

UPDATE #2: I have slightly expanded the discussion of the severability portion of the Supreme Court's ruling.

UPDATE #3: Legal scholar Garrett Epps has an interesting article discussing the implications of Murphy v. NCAA for the sanctuary cities cases currently being litigated in the lower courts.

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  • Allutz||

    While exciting in its own right, I have little faith in this coalition sticking together once more important federalism issues reach the Court.

  • GabrielSyme||

    See: state attempts to nullify pot laws vs. state attempts to nullify gun laws. As soon as it's an issue that Dems or Reps care strongly about, federalism will cease to exist

  • nonzenze||

    What States have nullified pot laws? A few States have said they will not criminalize it, but none dispute that the DEA or FBI can enforce Federal drug law even in States that have legalized it.

    Nullification has a very distinct meaning in US law/history.

  • OldCurmudgeon||

    >Nullification has a very distinct meaning in US law/history.

    Out of curiosity, what are juries doing on this issue?

  • swood1000||

    Apart from federalism aspects, the result reminds me of the result in NCAA v. Board of Regents (1984), where the NCAA had tried to limit the commercialization of college sports by restricting how often games could be televised. The Supreme Court held that this violated the Sherman Antitrust Act, leading to the obscene amounts of money we now see in college sports, accompanying rules violations, and the call for an end to amateurism.

    It's true that laws against gambling don't eliminate gambling, and many are opposed to such laws for libertarian reasons, but there's a reason that sports gambling has always been associated with corruption.

  • nonzenze||

    If that's the case, then Congress should make it illegal (including in Nevada) and be done with it.

    There seems to me no policy argument that justifies banning it in some States but not others, but I am amenable to hearing someone take a shot at it.

  • swood1000||

    I'm just bemoaning the addition of corruption-inducing factors. I'm also in favor of federalism but I don't have to like what the probable results are going to be.

    Ginsburag, Sotomayor and Breyer signed on to the statement "Nor is there any doubt that Congress has power to regulate gambling on a nationwide basis, authority Congress exercised in PASPA."

    Thomas did doubt this, pointing to the License Tax Cases (holding that Congress has "no power" to regulate "the internal commerce or domestic trade of the States," including the intrastate sale of lottery tickets). Who knows how the current (or next) court would decide Gonzales V. Raich, but if the states have shown that much interest in this new revenue stream I don't see Congress acting contrary.

  • nonzenze||

    Agreed, but I consider Thomas a serial-dissenter on Raich (as is his right) and not a bellwether for a majority.

  • David Nieporent||

    Apart from federalism aspects, the result reminds me of the result in NCAA v. Board of Regents (1984), where the NCAA had tried to limit the commercialization of college sports by restricting how often games could be televised.

    When I stop laughing at this, I'll respond.

    This was a dispute about who could make all that money, not about "commercialization." The NCAA was very happy to commercialize things; it just wanted the revenues controlled by itself rather than decentralized.

  • swood1000||

    This was a dispute about who could make all that money, not about "commercialization." The NCAA was very happy to commercialize things; it just wanted the revenues controlled by itself rather than decentralized.

    Are you saying that the total revenues under the NCAA plan would be the same as under a free market plan except that they all went to the NCAA? From the Court's syllabus:

    The [NCAA] plan limits the total amount of televised intercollegiate football games and the number of games that any one college may televise, and no member of the NCAA is permitted to make any sale of television rights except in accordance with the plan. …The CFA accordingly negotiated a contract with the National Broadcasting Co. that would have allowed a more liberal number of television appearances for each college and would have increased the revenues realized by CFA members. In response, the NCAA announced that it would take disciplinary action against any CFA member that complied with the CFA-NBC contract.

    Clearly, total revenues would be lower under the NCAA plan since the number of games televised by the major teams would be restricted and the amount going to each team would not be strictly based on market power. This would necessarily lessen the amount to be gained by flouting the rules, such as by paying players and by recruiting players who were unable to do college work.

  • bernard11||

    But the NCAA doesn't care about the size of the pot. It only cares about how much money flows to the NCAA as opposed to the schools or (shudder) the players.

    I'm easily old enough to remember how things were before 1984, and as I recall college sports was anything but pure even then.

  • swood1000||

    But the NCAA doesn't care about the size of the pot. It only cares about how much money flows to the NCAA as opposed to the schools or (shudder) the players.

    Let's remember that the NCAA is controlled by its member colleges. So they do what the majority wants, which likely involved evening out the revenues between the big name sports schools and the others. The bottom line was that the size of the pot was much smaller under the NCAA plan, meaning that there was less of an incentive to cheat.

    I'm easily old enough to remember how things were before 1984, and as I recall college sports was anything but pure even then.

    Yes, but recognizing that the system already contained corruption is not a justification for the introduction of influences sure to bring even more corruption.

    or (shudder) the players.

    The calls for dropping amateurism flow directly from the outrageous amounts of money that college sports are earning. The original model of college athletics was not as a money-making venture. Why don't we try to get back to that and let those who want to be paid skip college and go into professional sports? (As long as all Duke basketball games continue to be televised.)

  • bernard11||

    The original model of college athletics was not as a money-making venture.

    That original model died long before 1984. Probably it got sick the day a college president first realized he could sell tickets to games, and that good teams would bring in more money than bad ones, and passed away after a brief illness.

    You yourself say that the 1984 decision was about the NCAA being able to distribute TV money and the like more evenly among schools. So the case was fight over money too, some some golden principle of amateurism.

    Regardless, how do you propose to return to those days of yesteryear? Who, in a position of power, really wants to?

  • swood1000||

    You yourself say that the 1984 decision was about the NCAA being able to distribute TV money and the like more evenly among schools. So the case was fight over money too, some some golden principle of amateurism.

    By reducing the total pot, and in particular reducing the amount that individual schools could earn by becoming dominant (since it was spread out over all the schools) the result was to decrease the monetary reward of winning, which promotes amateurism and reduces the monetary reward for cheating.

    Regardless, how do you propose to return to those days of yesteryear? Who, in a position of power, really wants to?

    At this point who wants to turn down the big payday? How likely is it that Congress is going to pass an antitrust exemption for college sports, so that they can limit the number of games that can be televised and therefore the amount of money in the game? I don't have the answer, but I think that it would ruin college sports to allow professional athletes to compete. There are professional leagues (major and minor) for athletes who want to be paid. In the meantime, an expansion of organized gambling on college sports is not a move in the right direction.

  • NToJ||

    "...the result was to decrease the monetary reward of winning, which promotes amateurism and reduces the monetary reward for cheating."

    The purpose of the adoption of the NCAA plan was to preserve parity, not amateurism. The NCAA already has rules to promote amateurism directly (i.e. by banning non-amateurs from participating).

  • swood1000||

    The purpose of the adoption of the NCAA plan was to preserve parity, not amateurism. The NCAA already has rules to promote amateurism directly (i.e. by banning non-amateurs from participating).

    The reduction of the total pot, and of the amount that could be earned by each school. and of the incentive to cheat, promoted amateurism

  • Robert||

    The NCAA was established to abolish intercollegiate football. Recognizing they couldn't do it in one fell swoop, they were on their way over some decades of ratcheting it down until they eventually reversed course.

  • NToJ||

    "Let's remember that the NCAA is controlled by its member colleges."

    Then why did the NCAA's members sue the NCAA in NCAA v. Board of Regents?

  • swood1000||

    Then why did the NCAA's members sue the NCAA in NCAA v. Board of Regents?

    The ones who sued were the ones who could benefit from more games televised. Obviously they did not constitute the majority of the colleges or else they could have ordered the NCAA to adopt their plan. (Surely you don't believe that the NCAA is untethered to the will of the member colleges.)

  • NToJ||

    The NCAA was not worried about commercialization generally, but about a specific type of commercialization: gate receipts. The NCAA is a large organization and had members who would not benefit financially from the revenues proposed under the new television plan. That's why the lawsuit was championed by the Board of Regents of several schools, including Oklahoma and Georgia, who thought the NCAA was essentially rigging the system against their ability to make more money. The NCAA wanted to protect Northwestern's revenue streams in favor of Oklahoma's.

  • NToJ||

    What's the reason?

  • Josh R||

    What struck me is the dissent didn't challenge the anti-commandeering holding. They accepted it arguendo and only detailed why the rest of the law is severable.

    On the other hand as Justice Breyer noted in joining part of Ginsburg's dissent, accepting the anti-commandeering principle while severing the rest of the law would be a Pyrrhic victory for New Jersey.

  • Vandalia||

    Exactly. I would consider this a unanimous verdict for the core Constitutional principle.

  • nonzenze||

    Plus severability is a damned crapshoot. The Court should put Congress on notice that all statutes should express clearly if/how to severe the various terms or else just be struck down.

  • ||

    If I live in Oklahoma and bet on Dallas, how is that not interstate commerce?

  • nonzenze||

    It surely is. And under today's precedents (whether or not they are correct, but shoutout to serial-dissenters to Raich and Wickard) Congress could ban it under their Commerce Clause authority.

    But what it cannot do is pass a law mandating that States not repeal their laws against it.

  • ||

    Thanks.

  • David Nieporent||

    I'm sorry, but why does it matter which team you bet on? If you live on Oklahoma and place a bet in Dallas, there might be some element of interstate commerce. But betting on Dallas? Huh?

  • Joe_dallas||

    If you live on Oklahoma and place a bet in Dallas, there might be some element of interstate commerce.
    but betting on dallas would be a losing proposition cowboys, stars and mavericks

  • KHP54||

    Depends on who you're betting against, and who (if anyone) is holding the stakes in escrow.

  • bernard11||

    Huh?

    If you bet in Dallas, by phone say, from Oklahoma, that would be interstate commerce. Betting on Dallas in Oklahoma is not. OT, last time I looked - many years ago - bookies had fled Oklahoma in droves because some very harsh penalties had been put into law.

    Foot-voting, I guess.

  • Careless||

    Are you under the impression that betting on, say, a European soccer game in a Nevada casino would be engaging in international commerce?

  • OldCurmudgeon||

    " PASPA was defended by an unlikely coalition of major sports leagues, and the Trump administration; unlikely because Trump has engaged in a war of words and Tweets against various NFL and NBA players, coaches, and owners who condemn his administration and (in the case of NFL players) kneel during the national anthem. "

    Says the academic....In the real word, things like this are no big deal. Arrangements like "co-opetition" are common.

  • Bob from Ohio||

    "unlikely because Trump has engaged in a war of words and Tweets against various NFL and NBA players, coaches, and owners who condemn his administration and (in the case of NFL players) kneel during the national anthem. "

    Its like the CEO of a vast sprawling bureaucracy does not determine every single position the "administration" takes on every minor legal issue.

  • Careless||

    I would love to see presidential "wait, we did what?" reactions by president.

  • M.L.||

    Here's a good one, from WaPo:

    President Trump seemed distracted in March as his aides briefed him at his Mar-a-Lago resort on the administration's plan to expel 60 Russian diplomats..

    The United States, they explained, would be ousting roughly the same number of Russians as its European allies..

    "We'll match their numbers," Trump instructed, according to a senior administration official. "We're not taking the lead. We're matching."

    The next day, when the expulsions were announced publicly, Trump erupted, officials said. To his shock and dismay, France and Germany were each expelling only four Russian officials — far fewer than the 60 his administration had decided on.

    The president, who seemed to believe that other individual countries would largely equal the United States, was furious that his administration was being portrayed in the media as taking by far the toughest stance on Russia.

    His briefers tried to reassure him that the sum total of European expulsions was roughly the same as the U.S. number.

    "I don't care about the total!" the administration official recalled Trump screaming. The official, like others, spoke on the condition of anonymity to discuss internal deliberations.

    Growing angrier, Trump insisted that his aides had misled him about the magnitude of the expulsions. "There were curse words," the official said, "a lot of curse words."
  • phattyboombatty||

    Somebody please help explain to me why the NFL and other professional sports leagues opposed legalization of sports gambling. I know that their stated reason is some BS like, "to prevent corruption of the game." But, seeing as how sports gambling is legal in some locations, in our modern world, it might as well be legal everywhere. Anybody that wants to bet on sports can and does bet. All of the major sports networks provide the betting lines. So, sports gambling is already happening everywhere.

    Also, the ratings of NFL games (and probably other sports too) are boosted by gamblers that only watch the games because they have money on the line. If it wasn't for fantasy football and sports gambling, I'd guess there would be a huge decrease in TV ratings.

  • Vandalia||

    They don't want anyone else making money off of them. (By anyone else, I mean another legal, corporate entity.) There are a lot of people in this world who would rather have 100% of nothing than 50% of something.

  • OldCurmudgeon||

    >They don't want anyone else making money off of them

    Counter-example: isn't the primary purpose of injury reports to support gambling?

  • nonzenze||

    Is that relevant? The NFL is an organization of adults that is entitled to analyze and assess the benefit of harm to their own interests and to express them as a unified position. You are entitled to believe they have made an error in analysis (although this seems presumptuous given they have access to far more information than you do) but not that they haven't clearly stated their position.

    That doesn't mean the law should accommodate that position, of course, but it's neither here nor there why the NFL believes it.

  • phattyboombatty||

    I'm not entitled to be skeptical of a position stated by an organization? Thank you for telling me what I'm allowed to believe.

    By the way, I'm generally skeptical of almost every public position stated by a profit organization that is based on altruistic principles instead of profit. Typically, they are nothing more than marketing positions that disguise the true motive. The NFL, in particular, does not have a good track record of honesty.

  • nonzenze||

    I said "You are entitled to believe they have made an error in analysis". That is the opposite of what you wrote.

    Also, of course the NFL's positions are those that would tend to maximize its profits. That's their business. Who are you arguing against that suggested they have altruistic principles? Surely not me, when I wrote "assess the benefit of harm to their own interests".

  • phattyboombatty||

    and then you said, "but not that they haven't clearly stated their position." In other words, you stated that I am not entitled to believe that the NFL hasn't clearly stated its position.

    My point is that I'm skeptical that the NFL's publicly stated position is its true position. For example, if PhilipMorris started handing out free cigarettes to kids, and it publicly stated that it was doing so because it wanted to help provide for needy kids, would I not be entitled to believe that the true reason PhilipMorris was handing out cigarettes to kids was to create newly addicted life-time customers?

    I definitely don't believe the NFL has made an "error in analysis." They are smart guys and good at making money. I guess what I should have asked is, "how does the NFL profit more by keeping sports gambling limited to Vegas?"

  • MatthewSlyfield||

    The NFL and the other major pro sports leagues would love to kill sports gambling in Vegas too, for the same reasons.

    The problem is, they didn't have enough clout to get Congress to enact an outright federal ban on sports gambling and sports gambling was already legal in Vegas when the Professional and Amateur Sports Protection Act was passed.

  • nonzenze||

    and then you said, "but not that they haven't clearly stated their position." In other words, you stated that I am not entitled to believe that the NFL hasn't clearly stated its position.

    I mean, they have stated their position which is favor of keeping sports gambling limited to Vegas. I was not taking sides on your second-level point of what motivated that position, mainly because. I don't think it matters.

  • Joe_JP||

    I'm not assuming it is "BS" myself ... but if you "know" it is true, that's fine.

  • KHP54||

    I'm looking at the title of the law in question -- Professional and Amateur Sports Protection Act -- and wondering where on earth the federal government got the authority for that in the first place?

  • NToJ||

    The Constitution, probably.

  • Vandalia||

    To make sure that I am clear on this, federal legislation may not explicitly discriminate between the states? In other words, Congress could not pass a law that would survive at the Supreme Court that said "sports gambling is illegal in any state except Nevada."

    (However, they could pass a valid law saying that sports gambling is illegal without a federal license, and to receive a federal license a corporation must have a 10 year history of offering legal sports gambling at that specific location?)

  • Bob from Ohio||

    No reason they can't ban further legalization.

    Grandfathering is a normal carve out.

    The statute here seemed to ban the states from passing a law at all..

  • phattyboombatty||

    The problem with this law had nothing to do with favoring some states over others. As far as I know, there is no limitation on federal laws that prevent favoritism or discrimination towards states.

    The reason this law was found unconstitutional was in its implementation. Instead of just directly outlawing sports gambling, the statute limited the laws that a state could pass.

    Congress could easily pass a new law that was constitutional and achieved the exact same end result. But, its not clear if there is political support today for such a law like there was 25 years ago. Since that time, gambling has become much more socially acceptable.

  • nonzenze||

    I'm not so sure. The Court has struck down the States when they tried to establish economic favoritism. See (e.g.) Pike v. Bruce or South-Central Timber Development, Inc. v. Wunnicke

    I don't see any precedent for Congress doing so, so maybe this would be some new Constitutional law?

  • nonzenze||

    Fake Edit: I'm not sure Congress could carve out an exemption for some States rather than others, rather than having a neutral licensing regime (or none at all).

    I'm sure Congress could just regulate/ban it entirely.

  • bernard11||

    This seems pretty clearcut to me, and I'm hardly an enthusiastic federalist.

  • ScottK||

    Silly Congress critters. They should have consulted someone at GMU about the Tenth Amendment before passing that silly PASPA. Let's hope that doesn't happen again!

  • Sam Gompers||

    The Federal Government can't commandeer a State's perogatives unless it's which relationships the State wants to license and ennoble!

    - Today's Modern Libertarian

  • NToJ||

    Read the opinion you fucking idiot.

  • CJColucci||

    I invoke the Loki13 Rule: whatever Roberts and Kagan agree on is right.

  • Tituspullo||

    Garrett Epps leaves out a major distinction in his piece. Unlike sports gambling, immigration very much is regulated intensively by the federal government, which has the express Constitutional power to do so. Immigration does seem to be a place where the federal government has exercised its constitutional powers and would have the right (under the majority's own analysis) to tell the states that they can't interfere with those laws. Am i missing something?

  • DjDiverDan||

    The decision on the anti-commandeering issue really didn't surprise me, and, apart from the "fair weather federalists" on the Court (probably at least 6 of the Justices, maybe 7) who will happily find a way to distinguish this case on the anti-commandeering issue when it suits their political preferences, I find it less interesting than the severability issue. Frankly, Justice Thomas's take on the Court's severability precedents in his concurring opinion struck me as the most fascinating part of the whole case. Why isn't Thomas absolutely right? Judicial review is still limited by the "case or controversy" requirement of Article III, so once the Court disposed of the only section of PASPA which the Petitioner challenged, what authority did the Court have to even review the remainder of PASPA? If there were constitutional questions about the remaining provisions, shouldn't the resolution of those questions await an actual controversy, with someone actually briefing the issues? Thomas is, IMHO, absolutely right that trying to read the tea leaves on what Congress might have intended in 1992 when PASPA was enacted is beyond the Court's competence, and taking a blue pencil to the entire statute when only one section was at issue is beyond the scope of legitimate judicial review.

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