Originally published by The Hill May 4, 2018. Coauthored by Michelle Minton of Competitive Enterprise Institute.
In just a few days, the Supreme Court is expected to announce a decision on Murphy v. National Collegiate Athletic Association. This case pits the nation’s sports leagues against New Jersey in the state’s bid to legalize sports betting. Significantly, the court’s decision in this case could impact state governments’ ability to change their own laws in response to the will of their constituents, potentially affecting issues ranging from marijuana reform to immigration policy to gun control. Based on the oral argument before the Supreme Court, the smart money is on New Jersey for the win.
The case is the culmination of two attempts by the New Jersey legislature to relax its longstanding ban on sports betting after voters overwhelmingly approved a referendum calling for reform. But the will of the people has been thwarted by the federal Professional and Amateur Sports Protection Act (PASPA), a law that prohibits states from “authorizing” sports betting.
So far, the courts have agreed with the state’s opponents — including the Trump administration — that this law forbids New Jersey from repealing its state ban. But the justices of the Supreme Court have expressed serious skepticism.
Justice Kennedy, who is often the deciding vote, challenged the unusual nature of this statute: “So the citizens of the state of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have?” He also criticized PASPA because it “blurs political accountability. The citizen doesn’t know — is this coming from the federal government, is this coming from the state government?. That’s precisely what federalism is designed to prevent.”
Whatever issue you care most about, the fundamental principles Justice Kennedy raised should matter to you. Federalism preserves the states’ ability to respond to the changing values of the people they serve and to experiment with new solutions to public policy problems. Without this, the federal government could block state-level reform on almost any issue, leaving state citizens with little say over how they are governed.
The sports gambling case will impact many other issues, including marijuana reform. Responding to their voters, many states have decriminalized marijuana or authorized its medicinal use. Those policies have enhanced patient freedom in deciding for themselves how to treat chronic illnesses; allowed addiction to be treated with education, mental health resources and less harmful alternatives; and prevented resources from being wasted on prosecuting and imprisoning people for minor offenses. Because of the success of these state reforms, another eight states liberalized their marijuana laws in the 2016 election.
This experimentation has been possible only because, as constitutional scholar Professor Erwin Chemerinsky put it, “The federal government cannot require states to enact or maintain on the books any laws prohibiting marijuana.” Unable to obstruct state reform, the federal government has supported states by forbidding federal enforcement in cases where marijuana sellers or users are complying with state law.
The ruling on sports gambling also has implications for labor policy. The power of states to experiment with their own laws has led more than half of them to adopt right-to-work laws. These laws prevent workers from being forced to join and support unions against their will. Unions consistently have challenged right-to-work laws at the state level, and they likely would lobby Congress heavily for a federal ban on those laws. In fact, this year’s “A Better Deal” economic plan put forward by congressional Democrats would have the federal government prohibit right-to-work laws, riding roughshod over any states that think otherwise. As with sports betting, Congress is considering dictating to states what their own labor laws shall be.
The same principle is at stake in the debates over states and local governments declining to participate in enforcing federal immigration law, including by declaring themselves sanctuaries from aggressive enforcement. So far, when the federal government has sought to force their cooperation, the courts have sided with the states. But if the federal government could forbid states from authorizing sports betting, it could just as easily forbid states from authorizing local law enforcement to withdraw from enforcing federal immigration policy.
Federalism serves bipartisan values, allowing each state to decide on laws that best reflect the values and interests of their respective constituencies. Letting states pursue diverse policies also is helpful in learning what works and what does not. If Congress wants to forbid sports gambling, the federal government should bear the costs and political consequences of enforcing that law, rather than dictating to states what their laws shall be.
Jonathan Wood is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.
Michelle Minton is a senior fellow at the Competitive Enterprise Institute, a free market public policy organization based in Washington.