Sports betting ruling and sanctuary cities

Originally published by the Daily Journal May 23, 2018.

California received a major new weapon in its fight to defend the state’s sanctuary cities law from a lawsuit brought by the federal government. In a case concerning sports betting, the U.S. Supreme Court held that the federal government has no constitutional authority to dictate policy to recalcitrant states. Murphy v. NCAA, 2018 DJDAR 4453 (May 14, 2018). That same principle all but guarantees California’s power to decide whether to devote its own resources to aiding federal immigration enforcement.

The Supreme Court’s holding is deeply rooted in the Constitution’s design. The founding fathers wisely recognized that, to safeguard individual liberty, power must be divided up between different branches and levels of government.

The sports betting case, like the one against California’s sanctuary cities law, started as a state protest against a locally unpopular federal policy. New Jersey challenged the Professional and Amateur Sports Protection Act, which aims to prevent the spread of legalized sports betting, because it forced states to prohibit sports gambling by prohibiting them from amending their own laws. Apparently, Congress was unwilling to bear the political and financial costs of banning the activity under federal law, but was happy to foist this burden on the states.

The United States, unwilling to accept New Jersey’s resistance to federal preferences, supported sports leagues in a challenge to the state reform. New Jersey took the fight all the way to the Supreme Court, which gave the state an unqualified win. In a 7-2 decision joined by both Democrat and Republican appointed justices, Justice Samuel Alito explained that PASPA is at odds with a fundamental premise of the Constitution — that power was divided between the federal government and the states, with each answerable to the people.

According to Justice Alito, PASPA “unequivocally dictates what a state legislature may and may not do.” He continued, “[i]t is as if federal officers were installed in state legislative chambers were armed with the authority to stop legislators from voting on any offending proposals.”

The Constitution simply does not permit the federal government to control how states regulate their citizens. If Congress wishes to regulate, it must do so directly. But, as the experience with state-level marijuana reform shows, Congress will often be unwilling to do so when it will bear the political and economic costs of enforcement.

The Supreme Court’s decision is a significant win for federalism, a core guarantee of democratic accountability. If state politicians ignore the will of their voters, they can and should pay the price at the next election. But that line of accountability is broken if the federal government is dictating policy to the states, in effect, forcing these politicians to ignore their voters.

The impact of the sports betting decision will extend far beyond that narrow policy issues. The constitutional principles vindicated in the decision apply to every policy issue you may care about whether the environment or education, immigration or marijuana legalization.

Undoubtedly, California will cite the case to shield against the United States’ lawsuit challenging the state’s sanctuary cities law. In protest to the Trump administration’s immigration policy, California has forbidden its law enforcement resources, including local law enforcement, from being used to aid federal immigration enforcement.

As with New Jersey’s protest against PASPA, the United States is attempting to block this state-level resistance. But the Supreme Court’s decisions suggests that effort should ultimately fail. States must be free to decide whether to participate in the implementation of federal policy; the federal government has no authority to force them to do so.

In the short term, the main impact of the decision will be to protect California and other blue states as they resist Trump administration policies. But, over the long-term, federalism benefits everyone, regardless of their views on the political controversy of the moment.

Federalism prevents any political force from consolidating too much power. When Republicans control the federal government, blue states use federalism to provide an important counterweight. Similarly, red states provide the same important resistance when Democrats hold the federal levers of power.

This is exactly as the founding fathers intended. They recognized that the greatest threat to individual liberty is the consolidation of government power in too few hands. Dividing that power between the federal government and the states, with both directly accountable to the voters, is the key bulwark against this consolidation. The Supreme Court’s decision guarantees that it will continue to do so, regardless of the issue.