June 27, 2017

Supreme Court to hear constitutional challenge to federal sports betting ban

By Jonathan Wood Attorney
By Eric R from Scranton, PA

This morning, the Supreme Court decided to review New Jersey’s constitutional challenge to a federal law that purports to forbid almost every state—except, notably, Nevada—from legalizing sports gambling. PLF, joined by Cato and CEI, filed an amicus brief supporting cert.

The Professional and Amateur Sports Protection Act, which is the federal law New Jersey challenges, forbids states from “authorizing” sports betting, which the Third Circuit has interpreted to forbid the state from repealing its own gambling laws. So interpreted, PASPA is a significant threat to constitutional federalism. As we explained in a previous post:

To guarantee federalism, the Supreme Court has repeatedly held that the federal government cannot “commandeer” states or their officials by requiring them to implement federal policy. By protecting federalism, this anti-commandeering doctrine also protects individual liberty and political accountability. . . .

The most obvious way the doctrine protects individual liberty is by requiring the federal government to make the hard choices about how to implement a particular policy, and at what cost. If it could simply dictate policy to the states, Congress could avoid all of these by imposing them on the states. . . .

If commandeering were allowed, state officials might take the fall for unpopular policies over which they have no control. Likewise, it would permit federal politicians to claim credit for addressing a serious national problem, while foisting the difficult questions of how to do so and at what cost on state officials. “The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.”

New Jersey’s path to the Supreme Court has been a winding one. This is the second time that it has tried to reform its sports betting laws only to have a federal court forbid them from doing so. The state’s first attempt to attract the Justices’ attention fell short, but persistence has paid off.

The constitutional question presented in the case will have repercussions far beyond sports betting. For instance, most federal environmental laws are implemented through so-called cooperate federalism, under which states and the federal government cooperate to implement federal policy. The decision below threatens to upend this regime by empowering Congress to force states to go along with the federal plan, excising the “cooperative” aspect of cooperative federalism entirely. As I’ve previously explained on FREEcology:

Over the long term, it’s pretty clear that no one would benefit from undermining this system. Cooperative federalism offers the federal government a more efficient method to implement policy, while at the same time giving states considerable leverage to help shape federal policy and flexibility to determine how overarching policies will affect their particular state.
However, despite these long-term benefits, it’s also easy to imagine a federal government willing to give into the temptation to sacrifice them in order to secure an immediate political victory, by barring states from pulling out of unpopular or too-costly programs. Yet that’s precisely what the anti-commandeering doctrine, and federalism generally, are intended to prevent.

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