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May 14, 2018

Citing States' Rights and the Anticommandeering Principle, Supreme Court Invalidates Federal Law Prohibiting Sports Betting in State/Local Jurisdictions


New Jersey had filed suit against the federal law which outlawed state authorization for betting operations to take bets on sports. Three states already had the right to permit this, grandfathered in to the law; the rest were prohibited from doing so.

Or, in a slim distinction the federal government thinks matters more than the courts do: The states were prohibited from changing state laws against gambling to permit it.

Which is stupid.

I'm not in favor of gambling as a personal matter, but I'm even less in favor of an all-powerful Leviathan State attempting to parent me with force of arms.

The President is not my father and the State is not my God.

The President is not my father and the State is not my God.

Politicians are not my heroes and bureaucrats are not my priests.

The Supreme Court on Monday struck down a federal law barring sports gambling, in a sweeping decision that could soon lead to legalized sports betting in dozens of states.

The Supreme Court ruled 6-3 to strike down the Professional and Amateur Sports Protection Act.

The decision marked a defeat for the federal government and sports organizations who fought to uphold the current ban in most states.


"The legalization of sports gambling requires an important policy choice, but the choice is not ours to make," the opinion by Justice Samuel Alito said.

The constitutional doctrine of "anticommandeering" -- an important principle of states' rights, that the federal government may not order state law enforcement agents to execute federal law, nor, as here, instruct state legislators about what laws they must pass and what laws they are not allowed to pass -- underpins the Court's ruling here.

PASPA’s provision prohibiting state authorization of sports gambling schemes violates the anticommandeering rule. Pp. 14–24.

(a) As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the list of conferred powers is the power to issue direct orders to the governments of the States. The anticommandeering doctrine that emerged in New York v. United States, 505 U. S. 144, and Printz v. United States, 521 U. S. 898, simply represents the
recognition of this limitation. Thus, "Congress may not simply 'commandeer
the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.'" New York, supra, at 161. Adherence to the anticommandeering principle is important for several reasons, including, as significant here, that the rule serves as "one of the Constitution's structural safeguards of liberty," Printz, supra, at 921, that the rule promotes political accountability, and that the rule prevents Congress from shifting the costs of regulation to the States. Pp. 14–18.

(b) PASPA's anti-authorization provision unequivocally dictates what a state legislature may and may not do. The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle--that Congress cannot issue direct orders to state legislatures--applies in either event. Pp. 18–19.

There, the Court is addressing the federal government's attempt at a distinction-without-a-difference, claiming that the PASPA did not order states which laws it must pass, but rather forbade them from changing laws against gambling already on the book.

(c) Contrary to the claim of respondents and the United States, this Court's precedents do not show that PASPA's anti-authorization provision is constitutional. South Carolina v. Baker, 485 U. S. 505; Reno v. Condon, 528 U. S. 141; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264; FERC v. Mississippi, 456 U. S. 742, distinguished. Pp. 19–21.

(d) Nor does the anti-authorization provision constitute a valid preemption provision. To preempt state law, it must satisfy two requirements. It must represent the exercise of a power conferred on Congress by the Constitution. And, since the Constitution "confers upon Congress the power to regulate individuals, not States," New York, supra, at 177, it must be best read as one that regulates private actors. There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors.
Pp. 21–24.

That concerns an argument that the federal government may "pre-empt" state law when it seeks to impose a legal burden on all citizens, not states-as-states themselves. The Court finds here that this law obviously was directed as states-as-states and not just on individual citizens.

The court -- not in the summary, but in the main holding -- notes that a law that equally affects both individual actors and states will not be found to be in violation of the anticommandeering principle (for example, a law that makes bearer bonds less attractive for both states and private banks and corporations to issue), but that most of the law here imposes demands specifically on state legislators themselves.

3. PASPA's provision prohibiting state "licens[ing]" of sports gambling schemes also violates the anticommandeering rule. It issues a direct order to the state legislature and suffers from the same defect as the prohibition of state authorization. Thus, this Court need not decide whether New Jersey's 2014 law violates PASPA's antilicensing provision. Pp. 24–25.

Next, the Court addresses whether the parts of the law which most obviously violate the anticommandeering principle can be "severed" from the rest of the law, so that just those especially offensive parts of it can be ruled unconstitutional while the rest of the law (a la Obamacare) is spared.

Unlike in the case of Obamacare, the majority chooses not to "sever" the most offensive parts of the law. (Something they could have and should have done in Obamacare, and almost did, save for Roberts' last minute think-of-your-reputation change of heart):

4. No provision of PASPA is severable from the provisions directly at issue. Pp. 26–30. (a) Section 3702(1)'s provisions prohibiting States from "operat[ing]," "sponsor[ing]," or "promot[ing]" sports gambling schemes cannot be severed. Striking the state authorization and licensing provisions while leaving the state operation provision standing would result in a scheme sharply different from what Congress contemplatedwhen PASPA was enacted. For example, had Congress known that States would be free to authorize sports gambling in privately owned casinos, it is unlikely that it would have wanted to prevent States from operating sports lotteries. Nor is it likely that Congress would have wanted to prohibit such an ill-defined category of state conduct as sponsorship or promotion. Pp. 26–27.

There's a bit more to that summary of the opinion but it's similar to the quote above.

By the way: Justice Thomas' concurrence notes that the Supreme Court's rules for "severability" of unconstitutional parts of a law -- striking some parts of a law while allowing the rest to stand, which he likens to a "blue pencil" edit of Congress' law by the judicial branch -- are incoherent and should be re-examined, by which he implies we should go back to the rule that prevailed before the huge Leviathan State regulated everything, that if one part of a law was unconstitutional, the entire law was unconstitiutional, and if Congress wanted to keep parts of the law, it would have to re-pass the law in constitutional form.

He does not like the current rule that says the court should engage in a "nebulous inquiry" about what Congress' hypothetical intent would have been if it knew before hand that parts of the law would be stricken. He specifically mentions National Federation of Independent Business v. Sebelius -- the ruling that upheld Obamacare, despite striking several parts as unconstitutional -- as one such "nebulous inquiry" that probably should never have been undertaken.

He says this new case "behooves" the court to reexamine its severability doctrines. If that happens, and the court decides to revert to the old rule, would Obamacare be back on the chopping block?

I don't know, and besides, that's three unlikely steps down the road of hypotheticality.

Headline Corrected: I thought I heard someone report this opinion as the court saying that protecting sports' "integrity" from the corrupting influence of gambling was not an important federal concern. I wrote the headline before I read the opinion. However, after looking and looking for a discussion of protecting the integrity of sports, I could find only a single mention of the word "integrity" in the opinion(s), and I did not see any kind of discussion about it. It's possible they mentioned it in one sentence and I skimmed over that.

Point is, my original headline turns out to be wrong. They didn't talk about a federal interest here much, if at all. So I've rewritten it to be accurate, noting that they spent most of their discussion on the anticommandeering principle.

digg this
posted by Ace of Spades at 05:12 PM

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