The justices of the U.S. Supreme Court appeared skeptical Monday of a federal law that effectively prohibits sports betting in every state except Nevada.
The case has important implications for states rights. The final ruling will provide further guidance as to how the federal government can coerce or encourage states to adopt certain policies. As such, the ruling could have major implications for Trump administration priorities like sanctuary cities.
At issue in the litigation is the 1992 Professional and Amateur Sports Protection Act (PASPA), which restricts sports betting to Nevada and allows limited sports lotteries in Delaware, Montana, and Oregon. In a bid to revive Atlantic City’s faltering economic prospects, New Jersey decriminalized sports betting in 2014.
A coalition of professional athletic associations led by the NCAA sued the state, arguing New Jersey was in violation of PASPA. In turn, New Jersey argued that PASPA is unconstitutional, since it compels the state to carry out a federal policy against its will. This, they argue, violates the principles of federalism laid out in the Constitution.
The American Gaming Association estimates that Americans wager $150 billion in the illegal sports gambling market every year.
Lower courts have repeatedly sided with the sports leagues throughout the dispute.
During Monday’s argument Justice Anthony Kennedy, often the Court’s swing vote, emerged as the most dogged critic of PASPA.
“[T]he citizens of the state of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have,” he said. “That seems like commandeering.” The anti-commandeering doctrine prohibits the federal government from forcing states to become tools of federal policy.
He also said the law creates a political accountability problem, since the average citizen does not know which level of government has actually enacted a ban on sports betting.
“The citizen doesn’t know ‘is this coming from the federal government? Is this coming from the state government?'” he said. “That’s precisely what federalism is designed to prevent.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan appeared to side with the sports leagues. Sotomayor argued sports betting was essentially commercial activity which the federal government is allowed to regulate. Kagan, countering Kennedy, argued there isn’t an obvious commandeering issue in this case, since it isn’t clear which state officials are being conscripted into enforcing policy on behalf of the federal government.
Still, by the conclusion of the argument, it appeared a majority of the Court was prepared to side with New Jersey.
Deputy Solicitor General Jeffrey Wall was allowed ten minutes to present the views of the federal government, which also supported the sports leagues.
New Jersey Gov. Chris Christie sat in the court room’s front row during the argument and expressed optimism that the state would prevail.
“I believe that it’s very clear that the federal government overstepped its bounds vis-a-vis states rights,” he told reporters on the steps of the Supreme Court after the argument. “I think it violates the Tenth Amendment, and that’s why I think you saw so many governors join as amici on this, because they understand that today its sports gaming, tomorrow it’s something else.”
Almost twenty states joined an amicus (or “friend-of-the-court”) brief supporting New Jersey.
The case was exceptionally well-lawyered, featuring two of the finest appellate advocates in the country. Paul Clement of Kirkland & Ellis appeared for the sports leagues, while Gibson Dunn’s Ted Olson represented New Jersey. Clement succeeded Olson as solicitor general during the George W. Bush administration and regularly litigated high profile controversies.
The decision will have ramifications beyond sports betting. A finding that the federal government cannot force states to maintain general criminal prohibitions could severely undermine the Trump administration’s bid to end sanctuary city policies. Sotomayor cited marijuana policy as another area that could be affected.
A decision will come by June 2018.
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