A federal law called the Professional and Amateur Sports Protection Act (PASPA) forbade states from legalizing sports gambling. When New Jersey repealed some of its prohibitions against sports gambling, several sports leagues sued, claiming the state violated PASPA, even if the state did not license or permit the activity. The Third Circuit agreed and denied that this interpretation conflicts with the Constitution’s ban on federal government commandeering the states. On May 14, 2018, the Supreme Court struck down the law as unconstitutional.
Professional and Amateur Sports Protection Act (PASPA) says no state (except Nevada) can “sponsor, operate, advertise, promote, license, or authorize by law or compact” sports gambling. PASPA also forbids people from taking part in state-authorized sports gambling. In the wake of an economic recession and a flurry of casino closures in Atlantic City, New Jersey hoped to bridge revenue gaps and fulfill voter wishes by repealing its sports gambling prohibition, to allow sports betting in casinos or former racetracks. The state laws do not include any affirmative state approval of gambling—no permit or license is required.
Nonetheless, professional and collegiate sports leagues sued, arguing that PASPA forbids states from repealing existing sports gambling prohibitions. The Third Circuit Court of Appeals agreed with the leagues. Although it had previously held that PASPA only forbids states from affirmatively authorizing sports gambling, the court expanded the reach of PASPA to forbid the repeal of state prohibitions. The court held that its holding did not run afoul of the anticommandeering doctrine because states purportedly retain some choice to depart from federal policy (though it made no attempt to say what choices remain).
PLF filed a friend of the court brief in support of New Jersey’s petition for Supreme Court review. If the federal government gets away with what it has done in this case, the consequences could extend far beyond sports gambling. Many efforts to reform unpopular policies begin at the state level, where there is a greater willingness and ability to experiment with new approaches to vexing problems. All these experiments, with their potential to spur further reform, could be stopped in their tracks if federal politicians are allowed to dictate to states what their own laws must be.
On May 14, 2018, the Supreme Court struck down the law as unconstitutional. The 6-3 ruling in favor of New Jersey (and PLF) upholds the Constitution’s system of federalism—a key structural protection of liberty and democratic accountability.