Constitution Daily

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Sports betting case gets its Supreme Court game date in December

October 10, 2017 by NCC Staff


In early December, a long-awaited contest about legalized single-game sports betting in New Jersey will get its day at the Supreme Court, with some heavy hitters involved in the process.

Back in June, the Justices took the cases of Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Association, Inc.v. NCAA, which are now consolidated into one case bearing the New Jersey governor’s name.

Noted attorney Ted Olson filed the appeal for New Jersey that was accepted by the Court, and Governor Chris Christie’s office has filed several briefs. The initial brief filed by the NCAA, opposing the appeal, was led by Paul Clement, another famed litigator at the Court. Joining the NCAA’s brief are the four major professional team-sports leagues.

In the Christie case, the appeal asked the Justices to consider if a federal law that limits sports betting in New Jersey violates the 10th Amendment’s anti-commandeering clause. (If the anti-commandeering clause sounds familiar, it is also an issue in current lawsuits about sanctuary cities.)

The 10th Amendment simply reads that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since 1976, several Supreme Court decisions have found that it was the amendment’s intent to limit the ability of the federal government to “commandeer” state officials or a state legislative process.

In New York v. United States (1992), Justice Sandra Day O’Connor found that a federal waste-management law "would 'commandeer' state governments into the service of federal regulatory purposes, and would for this reason be inconsistent with the Constitution's division of authority between federal and state governments." And in Printz v. United States (1997), Justice Antonin Scalia said that a federal gun control law that forced local law enforcement to perform handgun background checks went against the 10th Amendment’s principles. “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program,” Scalia said. “Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

In the New Jersey sports betting cases, the Third Circuit federal appeals court in 2013 ruled against a state challenge to the federal Professional and Amateur Sports Protection Act.  The statute had allowed Nevada and several other states to have sports betting, but New Jersey decided not to apply for permission to do so. Instead, decades later it enacted its own law to control sports betting. The Supreme Court didn’t take an appeal from the state in 2014.

New Jersey then repealed existing state oversight regulations on gambling in another attempt to enact sports betting and make it “a purely private matter.” Again, the NCAA and the major professional sports organizations sued New Jersey. And again, New Jersey lost in court. But the case was heard by a full en banc appeals court, with nine judges voting against the state and three judges dissenting.

In its second plea to the Supreme Court, New Jersey argued that the en banc appeals court went too far. “The majority thus reached the remarkable and unprecedented conclusion that the Constitution’s federal structure affords to Congress the power to prohibit States from repealing their own laws,” it said. “This Court’s review is essential to ensure that the anti-commandeering doctrine continues to serve its function of preserving our federalist system.”

Back in May, the Trump Justice Department, supporting the sports organizations, asked the Supreme Court to deny the case for a second time, citing numerous conflicts between the federal law and the state laws, and the lack of legal challenges from other states.

But at least four Supreme Court Justices saw enough in New Jersey’s appeal to ask for full arguments at the Court in early December.


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