How An Unwritten Constitutional Doctrine Saved Sports Gambling In America (For Now)

By now, I would imagine that anybody reading this post has already seen the recent headlines: today, the Supreme Court struck down a federal prohibition on sports gambling.

However, as is the case with all newsworthy topics, headlines can be misleading. With respect to legal decisions in particular, headlines never tell the full story, and to be fair even my headline is not entirely accurate if taken literally, but more on that below.

Ultimately, the most important part of every court ruling, especially the rulings of the Supreme Court, is not the determination of the case itself but rather the justifications provided in the Court’s opinion.

After all, judicial rulings that lack strong justification are highly susceptible to being worked around by the other branches of our government and, in the future, they can quite possibly be overturned by the judicial branch itself. This reality is especially important to understand in the context of the Court’s decision today, since major actors in the industry of sports, such as the NFL, have already begun lobbying Congress to counteract the Court’s decision with new regulations on sports gambling.

So for those of you are interested in betting on athletic events, have a passion in following the Supreme Court, or just do not have anything better to do than read my views on this matter, there are two essential questions you should be asking yourself on this topic today.

What exactly did the Court determine the law of the land to be at this moment? And, more importantly, how did it justify its determination?

Key Facts

Who was involved?

The parties to this particular Supreme Court case were Governor Phil Murphy of New Jersey and the NCAA/the major sport leagues who were suing to overturn legislation on the books in Murphy’s state.

In the end, more than a majority of the Court sided against the NCAA/the major sports leagues and in support of the New Jersey legislation which repealed prohibitions on certain sports gambling schemes.

How did the case arise?

Prior to getting into the technicalities of how the case was decided, its critical to establish the context involved in how the legal case came about in the first place.

As Justice Alito explains at the beginning of the Court’s opinion, the story of gambling in America has been a dynamic one with many twists and turns. By the beginning of the 1900s, it was banned throughout the country, but within just twenty years restrictions on sports betting began to be loosened.

Alito highlights the particularly interesting history of sports gambling in the state of New Jersey:

“In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State. But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue, and in 1953, churches and other nonprofit organizations were allowed to host bingo games. In 1970, New Jersey became the third State to run a state lottery, and within five years, 10 other States followed suit. By the 1960s, Atlantic City, ‘once the most fashionable resort of the Atlantic Coast,’ had fallen on hard times, and casino gambling came to be seen as a way to revitalize the city. In 1974, a referendum on statewide legalization failed, but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone.”

However, for decades, many, in particular the country’s professional sports leagues and the NCAA, have sought to limit the spread of such gambling in an effort to protect the integrity of their sporting events and steer “young people” away from behavior which they viewed to be risky and addictive. In the 1990s, these opponents of gambling got their wish in the form of federal legislation.

Formerly known as the Professional and Amateur Sports Protection Act, the PASPA made it “unlawful” for a state “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events. In its opinion, the Court summarized the law’s impact as not criminalizing sports gambling but rather authorizing the filing of civil lawsuits against those who act in violation of the law’s provisions:

PASPA does not make sports gambling a federal crime (and thus was not anticipated to impose a signifi­cant law enforcement burden on the Federal Govern­ment). Instead, PASPA allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations.

The lawsuit determined by the case today arose out of state legislation passed by New Jersey in 2014, which was in fact the second iteration of the state’s efforts to role back gambling prohibitions. This particular piece of legislation repealed “the provi­sions of state law prohibiting sports gambling insofar as they concerned the placement and acceptance of wagers on sporting events by persons 21 years of age or older at a horse racing track or a casino or gambling house in Atlan­tic City.”

What exactly did the Court rule?

Quickly after the passage of the 2014 law, the NCAA and the country’s major sports leagues joined together to sue New Jersey’s governor in an effort to stop him from repealing the state’s gambling prohibitions. They premised their argument on the grounds that the 2014 law contradicted the PASPA’s ban on authorizing such gambling schemes.

However, as stated above, the case made its way to the Supreme Court which decided not only that New Jersey had the right to continue to enforce its 2014 law but also that the PASPA was unconstitutional and no longer valid federal legislation.

How did the Court justify its ruling?

This is where the story gets interesting.

In short, the Court decided that the PASPA was unconstitutional because of “the anti-commandeering principle.” As suggested by the title of this article, this constitutional principle is unwritten, but only insofar is there is no explicit “anti-commandeering” clause within the constitution.

Premised on the 10th Amendment, which grants the states and the American people all of the powers which the constitution does not provide to the federal government, the anti-commandeering principle simply withholds from Congress “the power to issue orders directly to the States.” The Court explained this principle in more detail in the following section of its opinion:

“The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment con­firms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anti-commandeering doc­trine simply represents the recognition of this limit on congressional authority.”

As far as the PASPA is concerned, it violated this constitutional principle by “unequivocally” dictating “what a state legislature may and may not do” by putting state’s decision making on the issue of sports gambling “under the direct control of Congress.” The Court wrote that the PASPA effectively made it so that “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any” proposals which were in contradiction to the requirements established in the PASPA.

In short, the Court’s determination and use of the anti-commandeering principle can be summarized in the following manner: “Just as Congress lacks the power to order a state legislature not to enact a law authorizing sports gambling, it may not order a state legislature to refrain from enacting a law licensing sports gambling.”

The legal logic here seems quite strong, and even the few dissenting opinions in this case did not take aim at the majority’s application of the anti-commandeering doctrine but rather disagreed with the majority’s decision to strike the PASPA down in whole rather than in part.

How does the case impact the future of sports gambling?

It is important to be clear about the exact ruling in this case. Yes, one can say that the Court legalized sports gambling, but it did so only insofar as states, no longer hindered by the PASPA’s restrictions, are now permitted to pass sports gambling laws in accordance with their own rules and desires. Thus, multiple situations could arise in which sports gambling remains illegal in many states across the country.

States could pass legislation that bans such activity, and even Congress could merely write another law which, rather than prohibiting the authorization of sports gambling, seeks to regulate it in a highly restrictive manner. After all, the Court solely found the PASPA to be unconstitutional, it did not find sports gambling to be a constitutional right and it certainly did not say that its decision was to be the final one on this matter.

The conclusion of the Court’s 31 page opinion makes this point clear:

“The legalization of sports gambling requires an im­portant policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA ‘regulate[s] state governments’ regulation’ of their citizens. The Constitu­tion gives Congress no such power.”

In the end, some have simply tried to forecast mountainous effects out of a ruling with a molehill sized determination. Some have sought to praise the ruling as a clear indication that sports gambling will be fully legalized, and others have even suggested that the Court’s ruling “could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.”

In reality, the wide-spread legalization of sports gambling, no less than the issues surrounding the decriminalization of marijuana and sanctuary cities, has a very long way to go before it is an abundantly tangible reality in this country.

I am not seeking to say that we will never reach this point. In fact, early reports suggest that some major sports leagues are embracing the prospect of state-level legalization. Rather, I am merely suggesting that the Court only paved the way to a reality of widely acceptable sports gambling, it did not, nor could it, take us there with today’s ruling alone.

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