Sports Betting Ban Is ‘Manifestly Unconstitutional’ New Jersey Says In New Supreme Court Brief
Dustin Gouker
8/30/17
August 30, 2017
New Jersey filed its initial brief in its US Supreme Court case to legalize sports betting, calling the federal ban “manifestly unconstitutional.”
This week saw a flurry of filings in the NJ sports betting appeal that should be heard later this year by the nation’s highest court.
The new filings in the NJ sports betting case
Tuesday was a deadline for filing briefs in the case. Here are the briefs from yesterday:
Gov. Chris Christie (representing the state of New Jersey)
NJ Thoroughbred Horsemen’s Association (a defendant and appellant alongside the state).
Pacific Legal Foundation et al (amicus brief)
Another amicus brief was filed last month by sports law expert Ryan Rodenberg.
New Jersey’s sports betting argument
The central argument put forth by New Jersey is much the same as we have seen in the lower courts. The state argues that the Professional and Amateur Sports Protection Act (PASPA) — which bans single-game sports wagering outside of Nevada — violates state’s rights.
Specifically, NJ argues the law is in opposition to the anti-commandeering principle, which basically says that the “federal government cannot force state or local governments to act against their will.”
PASPA ‘exceeds Congress’s authority’
More from the Christie brief, led by counsel Ted Olson:
One of the “essential postulates” derived from the “structure of the Constitution,” is that “state legislatures are not subject to federal direction.” … PASPA compels States to regulate—indeed, prohibit—sports wagering and therefore exceeds Congress’s authority.
And later:
Under our Constitution, if Congress wishes for sports wagering to be illegal, it must make the activity unlawful itself. It cannot compel States to do so.
How much of a repeal is enough?
New Jersey, in drafting its law to allow sports betting, partially repealed the prohibition against it in state statutes. However, the Third Circuit Court of Appeals ruled on two different occasions that the law’s repeal did not go far enough. The law only allows for sports betting at racetracks and casinos.
A full repeal of the law would certainly pass muster under PASPA in the courts, but appears to be an unlikely scenario. Still, NJ argues that the repeal did go far enough:
There should be no dispute that, as construed by the Third Circuit here, PASPA prohibits New Jersey from lifting its state-law prohibitions on sports wagering at casinos and racetracks, and therefore requires New Jersey to maintain those state-law prohibitions in effect.
More from the Christie brief:
This federal-court order now perversely compels New Jersey officials to maintain in force, as state law, prohibitions against sports wagering that, as far as the New Jersey Revised Statutes are concerned, no longer exist. A federal court, purporting to enforce federal law, now is dictating the contents of New Jersey’s state law concerning sports wagering.
And New Jersey officials are drafted into service as “puppets of a ventriloquist Congress,” expressing the federal commands as the laws of the State against the clear wishes of its citizens. Printz, 521 U.S. at 928 (quotations omitted).
The court must strike down PASPA
New Jersey argues that PASPA therefore is ‘manifestly unconstitutional’ and the court must take it off the books, in part or in full:
Had Congress understood that PASPA could not constitutionally prevent States from repealing their prohibitions on sports wagering, it certainly would not have prohibited States from responsibly regulating it through a system of licensing.
Since PASPA cannot constitutionally prohibit legalization under state law, PASPA’s prohibitions on state licensing and authorization by law—at least—must be stricken. And because PASPA cannot function as Congress intended without those core prohibitions, the rest of the statute must fall with them.
The NJTHA brief
A co-defendant in the case along with New Jersey, the NJTHA also offered a brief.
Its argument also centers around the anti-commandeering principle. The federal government should not force NJ to keep its sports betting ban on the books, in part or in whole, NJTHA writes. Again, the NJTHA argues the state’s partial repeal should be allowed:
PASPA may be susceptible of a reasonable construction that would permit a State to repeal any part of a state law prohibition against sports gambling. PASPA only bars States from authorizing sports gambling “by law.”
If a State has repealed any part of its sports gambling prohibition, there is no applicable state “law” authorizing sports gambling. In that case, the freedom to engage in sports gambling would derive not from a state “law” but from the inherent right of the people to do that which is not prohibited.
Fantasy sports
It also throws out the idea of uneven enforcement of PASPA. The NCAA and professional sports leagues in the US have the power to block sports betting via PASPA. However, the NJTHA argues, “the Leagues have done nothing to stop the spread of Fantasy or DFS wagering”:
The Leagues’ full-throated endorsement of Fantasy and DFS demonstrates the pernicious consequences that can follow when Congress tries to avoid political accountability for its actions by granting discretionary enforcement powers to private persons who may have self-interests that are at odds with a statute’s, such as PASPA’s, purposes.
The Leagues, thus, hypocritically stand before this Court profiting from an activity that 41 PASPA expressly prohibits while at the same time using PASPA to stop the NJTHA from operating a sports betting venue at Monmouth Park that has the potential to save jobs, save the New Jersey equine industry, and preserve open spaces.
The PLF brief
The Pacific Legal Foundation has led several groups in filing “friend of the court” briefs in the lower courts. We also got a preview of its argument from an essay at SCOTUSblog.
Not shockingly, anti-commandeering is again the central argument:
That the states voluntarily adopted the sports betting bans that PASPA now compels them to maintain is irrelevant. Today, New Jersey officials and voters have no say in the state’s own gambling laws. Federal law commands that those laws remain what they were 25 years ago, and state officials must continue to enforce them, because any reform would “authorize” sports betting.
That separates this case from Congress’ constitutional power to directly regulate individuals and to preempt conflicting state laws. Congress may give states a choice of regulating to federal standards or ceding the issue to federal control. But Congress cannot deny states that choice and simply dictate what their own laws shall be.
Dustin Gouker
8/30/17
August 30, 2017
New Jersey filed its initial brief in its US Supreme Court case to legalize sports betting, calling the federal ban “manifestly unconstitutional.”
This week saw a flurry of filings in the NJ sports betting appeal that should be heard later this year by the nation’s highest court.
The new filings in the NJ sports betting case
Tuesday was a deadline for filing briefs in the case. Here are the briefs from yesterday:
Gov. Chris Christie (representing the state of New Jersey)
NJ Thoroughbred Horsemen’s Association (a defendant and appellant alongside the state).
Pacific Legal Foundation et al (amicus brief)
Another amicus brief was filed last month by sports law expert Ryan Rodenberg.
New Jersey’s sports betting argument
The central argument put forth by New Jersey is much the same as we have seen in the lower courts. The state argues that the Professional and Amateur Sports Protection Act (PASPA) — which bans single-game sports wagering outside of Nevada — violates state’s rights.
Specifically, NJ argues the law is in opposition to the anti-commandeering principle, which basically says that the “federal government cannot force state or local governments to act against their will.”
PASPA ‘exceeds Congress’s authority’
More from the Christie brief, led by counsel Ted Olson:
One of the “essential postulates” derived from the “structure of the Constitution,” is that “state legislatures are not subject to federal direction.” … PASPA compels States to regulate—indeed, prohibit—sports wagering and therefore exceeds Congress’s authority.
And later:
Under our Constitution, if Congress wishes for sports wagering to be illegal, it must make the activity unlawful itself. It cannot compel States to do so.
How much of a repeal is enough?
New Jersey, in drafting its law to allow sports betting, partially repealed the prohibition against it in state statutes. However, the Third Circuit Court of Appeals ruled on two different occasions that the law’s repeal did not go far enough. The law only allows for sports betting at racetracks and casinos.
A full repeal of the law would certainly pass muster under PASPA in the courts, but appears to be an unlikely scenario. Still, NJ argues that the repeal did go far enough:
There should be no dispute that, as construed by the Third Circuit here, PASPA prohibits New Jersey from lifting its state-law prohibitions on sports wagering at casinos and racetracks, and therefore requires New Jersey to maintain those state-law prohibitions in effect.
More from the Christie brief:
This federal-court order now perversely compels New Jersey officials to maintain in force, as state law, prohibitions against sports wagering that, as far as the New Jersey Revised Statutes are concerned, no longer exist. A federal court, purporting to enforce federal law, now is dictating the contents of New Jersey’s state law concerning sports wagering.
And New Jersey officials are drafted into service as “puppets of a ventriloquist Congress,” expressing the federal commands as the laws of the State against the clear wishes of its citizens. Printz, 521 U.S. at 928 (quotations omitted).
The court must strike down PASPA
New Jersey argues that PASPA therefore is ‘manifestly unconstitutional’ and the court must take it off the books, in part or in full:
Had Congress understood that PASPA could not constitutionally prevent States from repealing their prohibitions on sports wagering, it certainly would not have prohibited States from responsibly regulating it through a system of licensing.
Since PASPA cannot constitutionally prohibit legalization under state law, PASPA’s prohibitions on state licensing and authorization by law—at least—must be stricken. And because PASPA cannot function as Congress intended without those core prohibitions, the rest of the statute must fall with them.
The NJTHA brief
A co-defendant in the case along with New Jersey, the NJTHA also offered a brief.
Its argument also centers around the anti-commandeering principle. The federal government should not force NJ to keep its sports betting ban on the books, in part or in whole, NJTHA writes. Again, the NJTHA argues the state’s partial repeal should be allowed:
PASPA may be susceptible of a reasonable construction that would permit a State to repeal any part of a state law prohibition against sports gambling. PASPA only bars States from authorizing sports gambling “by law.”
If a State has repealed any part of its sports gambling prohibition, there is no applicable state “law” authorizing sports gambling. In that case, the freedom to engage in sports gambling would derive not from a state “law” but from the inherent right of the people to do that which is not prohibited.
Fantasy sports
It also throws out the idea of uneven enforcement of PASPA. The NCAA and professional sports leagues in the US have the power to block sports betting via PASPA. However, the NJTHA argues, “the Leagues have done nothing to stop the spread of Fantasy or DFS wagering”:
The Leagues’ full-throated endorsement of Fantasy and DFS demonstrates the pernicious consequences that can follow when Congress tries to avoid political accountability for its actions by granting discretionary enforcement powers to private persons who may have self-interests that are at odds with a statute’s, such as PASPA’s, purposes.
The Leagues, thus, hypocritically stand before this Court profiting from an activity that 41 PASPA expressly prohibits while at the same time using PASPA to stop the NJTHA from operating a sports betting venue at Monmouth Park that has the potential to save jobs, save the New Jersey equine industry, and preserve open spaces.
The PLF brief
The Pacific Legal Foundation has led several groups in filing “friend of the court” briefs in the lower courts. We also got a preview of its argument from an essay at SCOTUSblog.
Not shockingly, anti-commandeering is again the central argument:
That the states voluntarily adopted the sports betting bans that PASPA now compels them to maintain is irrelevant. Today, New Jersey officials and voters have no say in the state’s own gambling laws. Federal law commands that those laws remain what they were 25 years ago, and state officials must continue to enforce them, because any reform would “authorize” sports betting.
That separates this case from Congress’ constitutional power to directly regulate individuals and to preempt conflicting state laws. Congress may give states a choice of regulating to federal standards or ceding the issue to federal control. But Congress cannot deny states that choice and simply dictate what their own laws shall be.
