On Monday, May 14, 2018, a 6-3 majority of the U.S. Supreme Court determined that a federal sports betting law violates the anticommandeering doctrine of the 10th Amendment of the Constitution.  The decision paves the way for the individual states to allow or disallow betting on sports by striking down the Professional and Amateur Sports Protection Act (“PASPA”). Justice Samuel Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Kagan, and Gorsuch.  

Justice Alito framed the question presented to the Court as deciding whether the federal law at issue “is compatible with the system of ‘dual sovereignty’ embodied in the Constitution.”  Murphy v. Nat’l Collegiate Athletic Ass’n., 584 U. S. __ (2018).  Ultimately, the Court was determining whether PASPA as a federal legislative measure overstepped its bounds into telling state legislatures what to do, in contravention of Constitutional doctrine.  The Court determined that PASPA does just that.

The majority set the historical stage for its decision by noting that professional sports leagues, the NCAA, and other opponents of sports gambling felt that PASPA would protect young people and safeguard the integrity of sports.  The most pertinent section of PASPA to the Court is one that “makes it ‘unlawful’ for a State or any of its subdivisions ‘to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on’ competitive sporting events.”  Id. (quoting and citing PASPA, 28 U.S.C. § 3702(1)).  The Court pointed out that “PASPA does not make sports gambling a federal crime,” but “allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations.”  Id.  

The case percolated through the court system due to a challenge by New Jersey, which tried to end its state prohibition on sports betting in 2012 by state constitutional amendment.  New Jersey was met with vigorous legal challenge under PASPA, and was ultimately stymied at both the district court level and at the Third Circuit Court of Appeals. The U.S. Supreme Court granted certiorari to review PASPA under the anticommandeering doctrine illuminated in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997).

The Court began by settling the meaning of “authorize” in PASPA.  Both sides hinged the outcome of their arguments on which definition rang truest.  The Court sided with New Jersey, stating that “[w]hen a State completely or partially repeals old laws banning sports gambling, it ‘authorizes’ that activity.”  Id.  Thus, the argument that New Jersey’s change of heart on its sports gambling laws and subsequent repeal efforts were not an authorization of such gambling under PASPA failed.

The Court next launched into a “dual-sovereignty” discussion to reinforce its anticommandeering precedents in New York and Printz, and to support the Murphy holding to come.  The Court outlined that Congress’s legislative powers are sizeable but not unlimited.  It further noted that Congress may legislate on only certain enumerated powers under the Constitution, and “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”  Id.  The PASPA provision at issue failed to pass Constitutional muster because it “unequivocally dictates what a state legislature may and may not do,” and thus, “state legislatures are put under the direct control of Congress.”  Id.  

Tangential arguments on federal preemption were quickly dismissed because PASPA regulated state legislature activity and not private citizen activity.  Finally, the Court determined that no other section of PASPA could stand on its own once § 3702(1) fell.  This severability determination drew the ire and comment of several Justices, including Justice Ginsburg writing in dissent and Justice Thomas writing in concurrence.  Notably, the dissenters’ main problem was with severability and the majority not allowing Congress to refine the law to fit into Constitutional limits; there was no real issue with the interpretation of PASPA as Constitutionally malignant, at least in part, under the anticommandeering doctrine.

The Court concluded by stating that “[t]he legalization of sports gambling requires an important policy choice, but the choice is not ours to make.”  Id.  The scramble toward policy answers to this new sports gambling landscape will be swift and crowded, with leagues worrying about integrity and money to be made by states and private companies.  As the Court noted in closing dicta, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” Id.  It will be quite interesting to see what each state decides as its legislative next measures.  It will also be interesting to see what monetary schemes arise in the new frontier. Finally, we should all be hopeful that our favorite sports leagues are able to maintain sporting integrity in the face of monetary gains through gambling on outcomes and other statistics.

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