5 years of litigation boils down to oral arguments at the US Supreme Court on December 4.
The U.S. Supreme Court scheduled December 4 for oral arguments in New Jersey’s sports betting case, “Christie v. National Collegiate Athletic Association”. After the SCOTUS hears the arguments, the 9 justices will take weeks or months to decide on the legality of land-based sports betting in the United States.
The Supreme Court consolidated “Christie v. NCAA“ with a second case, “New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association”.
Both cases involve New Jersey’s challenge to the Professional and Amateur Sports Protection Act 1992 (PASPA), which bans brick-and-mortar sports betting in 46 US states.
Almost half of those states have joined New Jersey’s case, because they believe the US federal government overstepped its authority in compelling individual states to ban sports gambling. The fact PASPA allows 4 states to conduct sports betting makes PASPA discriminatory.
West Virginia’s Sports Betting Amicus Brief
In August 2017, West Virginia Solicitor General Elbert Lin and Deputy Solicitor General Thomas M. Johnson Jr. submitted an amicus brief to the Supreme Court which argued that PASPA is unconstitutional under the 10th Amendment. 20 U.S. states signed an amicus brief to the Supreme Court stating they supported New Jersey’s case.
The amicus brief brought up similar cases involving radioactive waste under the Low-Level Radioactive Waste Policy Act and the federally mandated background checks according to the Brady Handgun Violence Prevention Act.
PAPSA Is Unconstitutional
Elbert Lin and Thomas M. Johnson discussed how the previous rulings applied to PASPA, “As interpreted by the 3rd Circuit, PASPA is similarly unconstitutional. Congress can no more mandate that states not repeal or modify certain existing gambling laws than it can dictate to states how they must regulate radioactive waste or obligate state law-enforcement officers to conduct background checks.”
Later, the Supreme Court filing stated “…the framers [of the US Constitution] settled on a system of dual sovereignty, in which the federal and state governments would govern independently, and each would be separately and directly responsible to its citizens. The framers saw this separation of the state and federal governments as critical to the preservation of liberty, because each government would act as a check on the other.”
Those who support New Jersey’s case thus argue that PAPSA makes individual states the tool of the US federal government’s policy. It commandeers New Jersey’s law enforcement and prosecutorial agencies to enforce a federal law, which is against the framers’ preference for “dual sovereignty”.
New Jersey’s Sports Betting Case
Over the past 5 years, New Jersey has put dual sovereignty to the test. The Chris Christie administration sought two different legal means to allow sportsbooks to operate in New Jersey. The New Jersey State Legislature passed bipartisan bills to legalize sports gambling, while the voters of the Garden State voted overwhelmingly to approve sportsbooks at Atlantic City casinos and Monmouth Park racetrack.
Twice, a coalition of American sports associations — the NCAA, NFL, NBA, Major League Baseball, and NHL — sued New Jersey and associated groups to enforce the federal ban on sports betting. In 5 separate legal decisions, PASPA was upheld in US district and appellate courts.
States Seek to End PASPA
Despite the lost court battles, New Jersey’s sports betting case has begun to gain popular support. One recent poll showed that 55% of Americans believe sports betting should be legal, while only 42% believed the same in 1993. Even starker, the number of those who oppose legal sports betting has declined from 56% to 33% over the same period of time.
Along with popular support, public opinion has turned against PASPA and similar bans on sports betting. The fact 20 state attorney generals and governors who signed West Virginia’s recent amicus brief is a sign of a chance in the opinion of public officials. When New Jersey made a similar appeal in 2014, only 5 states signed onto a similar amicus brief.
Sports Commissioners Speak Out
Meanwhile, a variety of public figures have given their support — even some which once championed PASPA. Sen. Rand Paul of Kentucky, former Rep. Ron Paul of Texas, and anti-tax activist Grover Norquist all oppose PASPA on the basic of the limitation of federal power.
Former NBA Commissioner David Stern, who in 2012 called New Jersey “stupid” for challenging PASPA, has called for federal legalization of sports betting. Stern’s protege, NBA Commissioner Adam Silver, wrote a December 2014 New York Times opinion piece stating his support for legalization, along with federal sports betting regulations.
MLB Commissioner Rob Manfred said he was willing to discuss new ideas, despite decades in which Major League Baseball claimed a ban on sportsbooks was essential for the integrity of the sport. NHL Commissioner Gary Bettman is on record saying his sport is less affected, so he would support what the other leagues do on the issue.
Leagues Hedge Their Bets
The commissioners’ opinions might not matter, but it is their leagues which brought the lawsuit against New Jersey. Thus, many of the very same people involved in the US Supreme Court case are saying they believe the law should be changed.
None of this will matter, if the nine US Supreme Court justice uphold previous decisions in the case. The forces seem to be turning against a federal ban on sports betting in the United States, but precendent is a powerful thing in US law and lower court decisions usually are upheld.
PASPA: Anti-Commandeering Doctrine
In the aforementioned West Virginia amicus brief, Lin and Thomas wrote that PASPA has been a failure, showing the wisdom of the Founding Fathers to reject overarching federal authority some 230 years ago. The Supreme Court filing 20 argued that “…PASPA strikes at the core of what the anti-commandeering doctrine is meant to protect against. The doctrine safeguards the system of dual sovereignty enshrined generally in the Constitution and specifically in the 10th Amendment.”
“In drafting the Constitution, the framers deliberately rejected a system of government in which Congress would employ state governments as agencies of the federal government. That was the model under the Articles of Confederation, and it was not a success.”
If the SCOTUS overturns the previous decisions against New Jersey, though, PASPA will be a thing of the past. Gov. Chris Christie said, if that happens, then legal sportsbooks would be open in New Jersey by the summer of 2018, in time for the start of the NFL season.
