Place Your Bets (Maybe)

In this post, I'll talk about an interesting case that won't be argued till December 4.  I know it's out of order, but it is college football season.🏈

December 4Christie v. NCAANJ Thoroughbred Horsemen's Assn. v. NCAA (consolidated)

Let's say you are in New Jersey and want to place a bet on a college football game or a horse race.  Sadly for you, a federal statute prohibits states from authorizing or licensing sports betting.  (Las Vegas is, of course, the exception).  And New Jersey could have been an exception too; the statute gave New Jersey a year to authorize and regulate sports betting at its Atlantic City casinos.  New Jersey missed the one-year deadline but passed the law anyway. The Third Circuit invalidated the law but said New Jersey could repeal the ban on betting in whole or in part without violating federal law.  New Jersey repealed the law in part, but allowed gambling on-site, by people at least 21 years of age, with the owner's consent, betting on games played outside New Jersey by non-New Jersey teams.  The Third Circuit again struck down the law because it held the partial ban ran afoul of the federal law because it allowed betting at the specific locations.  The Supreme Court granted review.  So what is this case really about?

It should come as no surprise that it's not really about gambling.  It concerns what is known as the anti-commandeering principle.  Simply put, under this principle, Congress may not require a state to enact a law.  And just as Congress, under this principle, can't require New Jersey to enact a law thaprohibits sports betting, New Jersey argues that Congress similarly can't prohibit a state from repealing a law and allowing betting: they are the same thing in principle.  And in fact, New Jersey argues that the underlying federal statute that gave rise to all of this itself violates the anti-commandeering principle because it is requiring the state to regulate private conduct it doesn't want to regulate.  Congress can't prohibit a state from repealing a law any more than it can require a state to enact one.  (Clever; some commentators say too clever).

The NCAA and the United States (filing as an amicus (friend of the court)) rely on cases that say that Congress may prohibit a state from interfering with federal policy. (Think medical devices or air carrier service, neither of which the states can regulate).  The law at issue here is no different.  They argue it merely prohibits a state from allowing sports gambling, which the federal authorities (with the exception of Las Vegas) don't want. The law does that and no more: it does not require a state to pass a law, it only prohibits a state law that interferes with federal policy.  

The anti-commandeering principle is itself quite new, being created in two Supreme Court cases in the 1990's, and there is scholarly opinion that says it ought to be done away with, centering on the lack of basis for the principle in the text or history of the Constitution, the lack of Supreme Court precedent leading up to its creation, and the principle's unworkability. There is an excellent piece on SCOTUSblog that lays this out very clearly.  The article does make it clear that while the author thinks it should be done away with, that does not seem very likely given this Court and its own recent cases.  And the anti-commandeering cases themselves don't really give much guidance, so looking to them to predict the outcome here doesn't get you very far.

So no one is sure how this case will turn out.  In the meantime, your safest bet on betting is Las Vegas.🎰 


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