The 10th Amendment provides that, if the Constitution doesn’t either give a power to the national government or accept that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has interpreted this provision to bar the federal government from”commandeering” the countries to enforce federal legislation or laws. Now the justices ruled that a federal law that bars states from legalizing sports gambling violates the anti-commandeering doctrine. Their choice not merely opens the door for states around the country to allow sports betting, but it also can give significantly more power to states generally, on topics which range from the decriminalization of marijuana to sanctuary towns.
The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The legislation, known as PASPA, bans most states out of (among other things) authorizing sports betting; it carved out an exception which would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the nation 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.
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The National Collegiate Athletic Association and the four major professional sports leagues went to court, arguing that the 2012 law breached 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 which gathered back existing bans on sports betting, at least since they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned into court, asserting that the law also violated PASPA, along with the U.S. Court of Appeals for the 3rd Circuit ruled against the nation.
The Supreme Court agreed to consider that the nation’s constitutional challenge to PASPA, and now the court reversed. In a decision by Justice Samuel Alito, the court began by explaining that the”anticommandeering doctrine may seem arcane, but it’s just the expression of a basic structural decision incorporated in the Constitution” –“that the choice 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 sports betting: It”unequivocally dictates what a state legislature could and may not perform.” “It is as if,” the majority suggested,”federal officers were set up in state legislative chambers and were armed with the ability to prevent legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito reasoned,”is not easy to imagine.”
The court also rejected the argument, made by the championships and the federal government, that the PASPA provision barring states from authorizing sports betting doesn’t”commandeer” the states, but rather simply supersedes any state laws that conflict with the supply — a legal doctrine known as pre-emption. Pre-emption, the majority explained,”is based on a federal law that regulates the behaviour of private actors,” but here”there is simply no way to understand the provision prohibiting nation authorization as anything other than a direct command to the States,” that”is just what the anticommandeering principle doesn’t allow.”
Having determined that the PASPA provision barring states from sports betting is unconstitutional, the majority then turned into the question that followed from this decision: If the rest of PASPA be broke down too, or can the legislation survive with no anti-authorization provision? In legal terms, the question is called”severability,” and today half the seven justices — Alito together with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch — who consented the PASPA anti-authorization supply was unconstitutional also agreed that the whole law should collapse. They concluded that, when the pub on states authorizing or licensing sports gambling had been invalid, it would be”most unlikely” that Congress would have wanted to keep to stop the states from conducting sports lotteriesthat were considered as”far more benign than other kinds of betting.” Similarly, the majority posited, if Congress had known that the pub on condition authorization or performance of sports gambling will be struck down, it would not have wanted that the concurrent ban on the operation of sports-betting strategies by private entities to continue. The PASPA provision barring the promotion of sports betting met the exact same fate; differently, the court explained,”federal law would prohibit the promotion of an activity that’s legal under both federal and state law, and that’s something that Congress has rarely done.”
The majority acknowledged that the question of whether to legalize sports gambling”is a contentious one” which”requires a significant policy choice.” But that choice, the majority continued,”isn’t ours to create. Congress can regulate sports betting right, but if it elects not to do so, each State is free to act by itself.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of the court’s judgment but rather on a fairly abstract legal question: the viability of this court’s present severability doctrine. Thomas made clear that he joined the majority’s decision striking down all of PASPA since”it provides us the ideal response it can for this question, and no party has requested us to apply another test.” However he proposed that the court ought to, at some point in the future, reconsider its severability philosophy, which he characterized as”dubious.” First, he observed, the doctrine is contrary to the tools that courts normally use to translate laws since it takes a “`nebulous inquiry into hypothetical congressional purpose,”’ instructing judges to try to figure out what Congress would have wanted to do if a part of a law violated the Constitution, when”it appears unlikely that the enacting Congress had any intent on this question.” Second, he continued, the philosophy”frequently requires courts to weigh in on statutory terms that no party has” a legal right to challenge.
Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg did not elaborate on her obvious conclusion (joined in total by Justice Sonia Sotomayor) that PASPA’s bar on the consent of sports betting from the states does not violate the Constitution. Instead, she contended (also with assistance from Justice Stephen Breyer) that, even though PASPA’s anti-authorization provision is unconstitutional, the rest of the law should stay in force. “On no logical ground,” Ginsburg highlighted,”can it be concluded that Congress would have preferred no statute at all if it could not prohibit States from penalizing or licensing these strategies.”
New Jersey has long hoped that enabling sports gambling would revive the state’s struggling racetracks and casinos. In March of this year, ESPN projected that if New Jersey were to triumph, 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 enable sports gambling. The economic impact of letting sports betting can’t be understated: Legal sports gambling in Las Vegas takes in more than $5 billion each year, and most estimates put the value of illegal sports gambling in the USA at up to $100 billion.
Now’s ruling may also have a much broader reach, potentially affecting a range of topics that bear little resemblance to sports betting. For instance, fans of so-called”sanctuary cities” — towns that refuse to cooperate with federal immigration officials to enforce immigration laws — have mentioned the 10th Amendment in recent challenges to the national government’s attempts to enforce states on grants for local and state law enforcement. Challenges to the national government’s recent attempts to enforce federal marijuana laws in countries that have legalized the drug for recreational or medical use may also be based on the 10th Amendment.
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