Opinion analysis: Justices strike down federal sports gambling law (Updated)

[NOTE: This post was updated with additional analysis at 3:19 p.m.]

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. Today the justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.

The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The law, known as PASPA, bans most states from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the state did so within a year. But it took New Jersey 20 years to act: In 2012, the state legislature passed a law that legalized sports betting.

The National Collegiate Athletic Association and the four major professional sports leagues went to court, arguing that the 2012 law violated PASPA. The lower federal courts agreed, prompting the New Jersey legislature to go back to the drawing board. In 2014, it passed a new law that rolled back existing bans on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned to court, arguing that the new law also violated PASPA, and the U.S. Court of Appeals for the 3rd Circuit again ruled against the state.

The Supreme Court agreed to consider the state’s constitutional challenge to PASPA, and today the court reversed. In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “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,” Alito concluded, “is not easy to imagine.”

The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Having determined that the PASPA provision barring states from authorizing sports betting is unconstitutional, the majority then turned to the question that followed from that conclusion: Should the rest of PASPA be struck down as well, or can the law survive without the anti-authorization provision? In legal terms, the question is known as “severability,” and today six of the seven justices – Alito along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch – who agreed that the PASPA anti-authorization provision was unconstitutional also agreed that the whole law should fall. They reasoned that, if the bar on states authorizing or licensing sports betting were invalid, it would be “most unlikely” that Congress would have wanted to continue to prevent the states from running sports lotteries, which were regarded as “far more benign than other forms of gambling.” Similarly, the majority posited, if Congress had known that the bar on state authorization or operation of sports betting would be struck down, it would not have wanted the parallel ban on the operation of sports-betting schemes by private entities to continue. The PASPA provision barring the advertising of sports betting met the same fate; otherwise, the court explained, “federal law would forbid the advertising of an activity that is legal under both federal and state law, and that is something that Congress has rarely done.”

The majority acknowledged that the question of whether to legalize sports gambling “is a controversial one” that “requires an important policy choice.” But that choice, the majority continued, “is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.”

Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of the court’s ruling but instead on a fairly abstract legal question: the viability of the court’s current severability doctrine. Thomas made clear that he joined the majority’s decision striking down all of PASPA because “it gives us the best answer it can to this question, and no party has asked us to apply a different test.” But he suggested that the court should, at some point in the future, reconsider its severability doctrine, which he characterized as “dubious.” First, he observed, the doctrine is contrary to the tools that courts normally use to interpret laws because it requires a “‘nebulous inquiry into hypothetical congressional intent,’” instructing judges to try to figure out what Congress would have wanted to do if part of a law violated the Constitution, when “it seems unlikely that the enacting Congress had any intent on this question.” Second, he continued, the doctrine “often requires courts to weigh in on statutory provisions that no party has” a legal right to challenge.

Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg did not elaborate on her apparent conclusion (joined in full by Justice Sonia Sotomayor) that PASPA’s bar on the authorization of sports betting by the states does not violate the Constitution. Instead, she argued (also with the support of Justice Stephen Breyer) that, even if PASPA’s anti-authorization provision is unconstitutional, the rest of the law should remain in force. “On no rational ground,” Ginsburg emphasized, “can it be concluded that Congress would have preferred no statute at all if it could not prohibit States from authorizing or licensing such schemes.”

New Jersey has long hoped that allowing sports betting would revive the state’s struggling racetracks and casinos. In March of this year, ESPN projected that if New Jersey were to win, the state could have legal sports betting by the time football season kicks off in the fall; nearly two dozen other states are also considering bills that would allow sports betting. The economic impact of allowing sports betting cannot be understated: Legal sports betting in Las Vegas takes in over $5 billion each year, and most estimates put the value of illegal sports betting in the United States at up to $100 billion.

Today’s ruling could also have a much broader reach, potentially affecting a range of topics that bear little resemblance to sports betting. For example, supporters of so-called “sanctuary cities” – cities that refuse to cooperate with federal immigration officials to enforce immigration laws – have cited the 10th Amendment in recent challenges to the federal government’s efforts to implement conditions on grants for state and local law enforcement. Challenges to the federal government’s recent efforts to enforce federal marijuana laws in states that have legalized the drug for either recreational or medical use may also be based on the 10th Amendment.

This post was originally published at Howe on the Court.