By Lisa Soronen
Sports betting and commandeering don’t end up in the U.S. Supreme Court very often separately, much less together.
In Christie v. National Collegiate Athletic Association, New Jersey Governor Chris Christie argues that because the Professional and Amateur Sports Protection Act (PASPA) prohibits the state from repealing laws restricting sports gambling it amounts to unconstitutional commandeering. The State and Local Legal Center (SLLC) filed an amicus brief supporting Christie.
PASPA, adopted in 1992, makes it unlawful for states and local governments to authorize sports gambling.
The New Jersey constitution prohibited sports gambling. New Jersey first amended its constitution to allow some sports gambling to help New Jersey’s struggling racetracks and casinos. The 3rd U.S. Circuit Court of Appeals held that doing so violated PASPA as an “authorization” of sports gambling but concluded that repealing restrictions on sports gambling would be OK.
New Jersey then passed a law repealing restrictions on sports gambling. The 3rd Circuit changed course, ruling the repeal violates PASPA. It reasoned that the repeal “authorizes sports gambling by selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling.”
Per the anti-commandeering doctrine, “Congress ‘lacks the power directly to compel the states to require or prohibit’ acts which Congress itself may require or prohibit.” In both cases Christie argued that PASPA unconstitutionally commandeers states because it forces states to either completely prohibit sports gambling or completely allow it. The 3rd Circuit disagreed.
The SLLC amicus brief argues that, regarding sports gambling, the 3rd Circuit decision leaves states with only one viable option: Freeze bans in place enacted before PASPA. But, “Congress cannot, on the one hand, fail to pre-empt the field by way of enacting a federal regime for the regulation of sports wagering and, on the other hand, prevent states from taking any meaningful action to revise their laws to reflect constituent opinion.”
Beyond sports gambling, the SLLC amicus brief also argues that “rationale of the 3rd Circuit’s decision upholding its reading of PASPA would permit Congress to order state and local governments to freeze state and local law . . . on other issues of critical importance,” ranging from issues such as physician-assisted death for the terminally ill to self-driving cars.
Richard A. Simpson, Tara Ward, and Emily Hart, Wiley Rein, wrote the SLLC amicus brief, which was joined by the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, National League of Cities, and the International Municipal Lawyers Association.
Lisa Soronen is executive director of the State and Local Legal Center. She is a frequent contributor to the NCSL Blog.