The Supreme Court is skeptical of the ban on sports betting.

The Supreme Court Appears Poised to Let Every State Legalize Sports Betting

The Supreme Court Appears Poised to Let Every State Legalize Sports Betting

Oral argument from the court.
Dec. 4 2017 6:04 PM

Chris Christie’s Big Gamble

The Supreme Court appears poised to let every state authorize sports betting.

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The U.S. Supreme Court justices pose for a group portrait on June 1 in Washington.

Alex Wong/Getty Images

Sports betting in the United States is a $150 billion business that goes largely unregulated. The vast majority of bets are placed illegally due to a federal law that effectively prohibits all but four states from offering legal sports gambling. On Monday, the Supreme Court heard a challenge to that law’s constitutionality. The case appeared to be a long shot when the court first agreed to hear it—yet on Monday, a majority of the justices seemed poised to invalidate the statute as a violation of states’ rights. Their decision could have monumental consequences for other legal conflicts between federal power and state sovereignty, preventing the federal government from penalizing sanctuary cities or shutting down state-level marijuana programs.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The case, Christie v. NCAA, is unusual because the law at issue, the Professional and Amateur Sports Protection Act (PAPSA), is itself quite strange. Congress could, if it wanted, simply outlaw sports betting throughout the United States. It could also regulate sports betting and bar states from adding their own rules. But Congress did neither of these things. Instead, it passed PAPSA, which forbids all but four states from repealing their own bans on sports betting. (Oregon, Delaware, Montana, and Nevada already allowed the practice when PAPSA passed in 1992 and were permitted to keep those laws.)

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In 2011, New Jersey residents voted, by a 2 to 1 ratio, to legalize sports betting, and Gov. Chris Christie signed a law authorizing gambling at casinos and horse tracks. A court struck down the state’s effort under PAPSA. So in 2014, the legislature passed a new act that repealed existing criminal penalties on sports betting. Once again, the courts overturned the state law, citing PAPSA, and New Jersey asked the U.S. Supreme Court to weigh in. The state faced long odds: There is no disagreement among lower courts on the constitutionality of PAPSA, and the Department of Justice advised the justices to refuse the case—two factors that would ordinarily doom such an appeal. Yet the court agreed to hear Christie in June, suggesting serious doubts about the legality of PAPSA.

Why so much ado about gambling? New Jersey alleges that PAPSA violates something called the anti-commandeering doctrine. Devised by the Supreme Court in 1992, this doctrine interprets the 10th Amendment to mean that Congress cannot “commandeer” state officials to implement federal policy. The court reasoned that “accountability of both state and federal officials is diminished” when, “due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate.” Thus, Congress doesn’t get to achieve its policy goals by bossing states around.

There are two problems with this doctrine. First, although the court has justified the rule as an originalist command, it rests on dubious historical grounds: The Framers appear to have assumed that the federal government could, in fact, commandeer state officials. Second—and more importantly, since the doctrine is now entrenched, for better or for worse—it is difficult to ascertain when a law “commandeers” and when it merely “pre-empts.”

That’s a crucial distinction, because under the Supremacy Clause, Congress can pre-empt state law—that is, override it—by regulating something to the exclusion of the states. For instance, because Congress has asserted its authority to regulate immigration, states cannot pass laws that conflict with (or even supplement) federal immigrant law. That’s constitutional because the federal government implements its own immigration policy. Congress would only cross a constitutional line if it ordered state officials to carry out federal immigrant policy. Indeed, the Trump administration’s effort to defund “sanctuary cities” has been blocked by the courts in part because it commandeers state law enforcement to apply federal immigrant law.

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But this line is not always so clear, and Christie illustrates why. New Jersey claims that PAPSA commandeers its legislators, proscribing them from repealing its sports betting ban. The NCAA and the Department of Justice argue that PAPSA pre-empts New Jersey from repealing the ban as it represents Congress’ attempt to regulate sports betting nationwide. If New Jersey is right, then PAPSA is unconstitutional. If the NCAA and DOJ are correct, then PAPSA is just a pedestrian regulation mischaracterized by its opponents.

On Monday, it quickly became clear that a majority of the Supreme Court likely agrees with New Jersey that PAPSA constitutes unlawful commandeering. Early on, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan did their best to paint the law as a typical act of pre-emption. But when Paul Clement approached the lectern to defend PAPSA, Justice Anthony Kennedy immediately jumped in to blast the law. PAPSA, Kennedy asserted, creates a “mechanism” that “leaves in place a state law that the state does not want, so the citizens of the state of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have.”

“That seems commandeering,” Kennedy added, in case anyone was uncertain where he stood. He later added that PAPSA “blurs political accountability. The citizen doesn’t know is this coming from the federal government, is this coming from the state government. That’s precisely what federalism is designed to prevent!”

Justice Neil Gorsuch then zeroed in on one telling aspect of PAPSA: Congress considered the law to cost $0 for the federal government because it passed on responsibility entirely to the states. Why, Gorsuch asked Clement, does Congress get to pass a “cheap statute” by saddling states with new duties so that the federal government doesn’t “have to expend any funds to enforce its laws?”

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But the key question of the day—posed in different ways by Chief Justice John Roberts, Justice Samuel Alito, and Justice Stephen Breyer—is how PAPSA pre-empts state laws regulating sports betting when PAPSA does not regulate sports betting itself. If PAPSA were a traditional pre-emption law, it would create regulations for sports-related gambling, and override any state laws that purport to do the same thing. But that’s not what PAPSA does. Rather than regulate gambling, PAPSA directly regulates states. And by permitting limited yet lucrative exceptions, it fails to announce a clear federal policy on the topic of sports betting.

Surprisingly, it is Breyer, a 10th Amendment skeptic, who articulated this point most lucidly. “There is no federal policy against authorizing sports gambling but for a federal policy that says a state can’t authorize sports gambling. And that is to commandeer,” he said. Although Breyer is no fan of federalism, he implied throughout arguments that the court’s precedents require it to invalidate PAPSA. So did Roberts, who criticized PAPSA as “odd” and asserted that it infringes upon “the fundamental powers and prerogatives of a state to function on its own.” Unless Alito and Justice Clarence Thomas back away from their steadfast support for state sovereignty, PAPSA appears to be doomed.

Eighteen states supported New Jersey in its quest to slay PAPSA, and experts predict that 32 states will legalize sports betting by 2025 if the law fails. The court’s decision in Christie could help bring America’s vast underground sports betting market into the light of regulation, surfacing billions of dollars in revenue for the states. If you support legalized gambling as a matter of policy, as I do, that’s good news.

But if you’re a progressive eager to stick it to the federal government at this political moment, be careful. A ruling against New Jersey would imperil state experimentation—which, right now, means shielding sanctuary cities and marijuana programs from federal oppression. (The feds can still punish undocumented immigrants and marijuana users, but it can’t make states do it for them.) Under the next administration, however, liberals may wish to use federal power to regulate red states, only to be thwarted by the anti-commandeering doctrine. Democrats would do well not to bet the house on states’ rights.

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