Dina Rosin (CMC ’20)
After the 2016 Super Bowl, CBS aired a live version of The Late Show with Stephen Colbert. There was a surprise appearance by then-President Obama, where he mentioned that after every Super Bowl he calls the winning team, and sometimes the losing team. “Especially if I bet on them,” he added. Colbert replied, “But Mr. President, betting is illegal,” to which Obama replied with a smile: “I’m the President. I hereby pardon myself.”
Sports betting is, indeed, technically illegal in every state in the US but Nevada. However, as implied by the exchange above, the fact that tens of millions of Americans bet on sports outside of Nevada is widely acknowledged and not significantly policed. For over 20 years, while states had legal lotteries, race tracks, and other gambling venues, only Nevada had legal sports action. Now, a case before the United States Supreme Court, Christie v. National Collegiate Athletic Association (NCAA) will determine if other states can allow “sports books” to open. The case will help to determine whether states have the right to make legislation allowing sports betting despite a federal law preventing it.
In 2011, the citizens of New Jersey overwhelmingly approved a referendum allowing sports betting at the state’s casinos and horseracing tracks, and the legislature quickly voted this into law. The NCAA and four professional sports leagues brought a federal lawsuit to challenge New Jersey’s right to allow such betting, arguing that allowing betting on professional and amateur sports “undermines the integrity of sports contests.” Their legal argument is grounded in a 1992 law passed by Congress called the Professional and Amateur Sports Protection Act (PASPA), which outlined sports betting in any state other than those grandfathered by pre-existing laws, which includes Nevada. This law said that no new states without these grandfathered clauses could authorize legal betting on sports. Congress allowed this exception, based on an arbitrary condition of whether a law legalizing sports betting had been passed early enough, which has resulted in inconsistencies in which states are subject to the law.
New Jersey is now legally challenging PASPA and succeeded in getting a hearing in front of the Supreme Court earlier this week to determine whether PASPA violates the 10th Amendment. At the heart of the case is this brief final original amendment in the Bill of Rights which reads: “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.” New Jersey is arguing that through PASPA, Congress is unconstitutionally preventing the state from repealing its own laws. The state claims that this is prevented by the 10th amendment.
On face value, PASPA seems to be in conflict with the 10th Amendment – after all, how can Congress tell states not to make gambling legal when other states have been allowed to regulate legal gambling? Congress could, of course, pass a federal law barring all sports gambling, but it clearly did not want to interfere with this business in Nevada because the state relies heavily on its gambling revenue. However, PASPA simply enumerated that no new states could allow sports gambling. PASPA’s lawyers argue that the law does not conflict with the 10th Amendment because it does not constitute commandeering. Congress cannot constitutionally engage in ‘commandeering’ states – that is, forcing them to do something. But PASPA simply blocks them from doing something, so it is not ‘commandeering.’ Therefore, it does not violate the 10th Amendment. Several lower courts seemed to agree.
However, the lawyers representing the federal government and PASPA ran into some hard questions in the arguments this week. In particular, Justice Kennedy, often the ‘swing vote’ in many cases due to his centrist viewpoints, seemed to think PASPA does qualify as commandeering. He stated that PASPA forces citizens into a situation where they are “bound to obey a law that the state does not want but that the federal government compels the state to have.” If other justices agree to define PASPA in this way, then it will not withstand the challenge of the 10th Amendment.
The Court will make its decision on the legality of PASPA in the summer of 2018. If PASPA is ruled unconstitutional, one can expect that many states, not just New Jersey, will quickly allow legal sports betting. This decision could potentially open a pathway for the challenging of grandfather clauses that prevent states from repealing certain laws, as they could now be seen as a form of commandeering. If the Court rules in favor of PASPA, Congress may retain its power to block state action in certain cases.
