The NCSL Blog


By Lisa Soronen

If you took the "over" on the U.S. Supreme Court vote to legalize sports sports gambling, you won!

IPeople placed bets on sports in Las Vegas in 2017. The betting law exempted Nevada, where sports betting has long been legal.CreditBridget Bennett for The New York Timesn a 6-3 decision in Murphy v. National Collegiate Athletic Association, the Supreme Court declared the federal Professional and Amateur Sports Protection Act (PASPA) unconstitutional. PASPA, adopted in 1992, prohibits states from authorizing sports gambling.

NCSL applauded the decision.

The State and Local Legal Center (SLLC) filed an amicus brief asking the court to rule PASPA violates the Constitution’s anticommandeering doctrine.

As a result of this decision, state legislatures may repeal state laws banning sports betting and/or pass laws allowing sports betting.

New Jersey first amended its constitution to allow some sports gambling. The 3rd U.S. Circuit Court of Appeals held that doing so violated PASPA as an “authorization” of 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 violated 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.”

Then New Jersey Governor Chris Christie (R) asked the 3rd Circuit and the Supreme Court to declare PASPA unconstitutional per the anticommandeering doctrine. The 3rd Circuit concluded PASPA is constitutional, reasoning that it “does not command states to take affirmative actions, and it does not present a coercive choice.” The Supreme Court disagreed. 

In an opinion written by Justice Samuel Alito, the court first concluded that “authorizing” per PASPA includes state laws permitting sports gambling and states completely or partially repealing old laws banning sports gambling.

The court rejected the 3rd Circuit’s narrower definition of authorizing. “The Third Circuit could not say which, if any, partial repeals are allowed. [The NCAA] and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime.” 

Regarding the statute’s constitutionality, Alito conceded the anticommandeering doctrine “sounds arcane.” But it is simply the notion that Congress lacks the power to “issue orders directly to the States.”

By telling states they could not authorize sports gambling—either outright or by repealing bans on the books—PASPA violates the anticommandeering rule. “[PASPA] unequivocally dictates what a state legislature may and may not do. . . . [S]tate legislatures are put under the direct control of Congress. It is as if 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 is not easy to imagine.”

PASPA contains provisions prohibiting states from operating a sports betting lottery, private actors from operating sports betting schemes pursuant to state law, and restrictions on both state and private actors regarding advertising sports gambling. The court struck down the entire law concluding none of the provisions are severable—meaning Congress would not have likely enacted them alone.

Richard A. SimpsonTara Ward, and Emily HartWiley Rein, wrote the SLLC amicus brief which was joined by the National Governors Association, NCSL, the Council of State GovernmentsNational League of Cities, and the International Municipal Lawyers Association.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.


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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.