Federalism At The Heart Of New SCOTUS Sports Betting Briefs

Written By Bart Shirley on September 6, 2017

[toc]On August 29, several interest groups filed an amicus curiae brief to the Supreme Court of the Unites States in support of New Jersey’s legal battle against the NCAA over sports betting.

The Pacific Legal Foundation, the Competitive Enterprise Institute, the Cato Institute, and the Wisconsin Institute for Law & Liberty have joined with Gov. Chris Christie in his fight to get the federal ban on sports betting declared unconstitutional.

The law in question is the Professional and Amateur Sports Protection Act of 1992, or PASPA. Also known as the Bradley Act, the law outlawed sports betting in the United States, with only a few exceptions.

Chief among those exceptions is Nevada, whose sportsbook operations remained legal. Carveouts also exist in the law for wagering on jai alai, dog racing, and horseracing.

New Jersey has a long history with PASPA

New Jersey had its own sportsbooks when Congress passed the law in 1992. As a concession to this fact, the law allowed a grace period for states who were previously offering sports betting to pass explicit state laws to permit wagering in this way.

However, New Jersey failed to pass such a law. The grace period ended a year after the bill’s effective date, meaning that New Jersey ran out of time on January 1, 1994.

New Jersey has since passed state legislation to permit sports betting. The state has been at the forefront of opposition to PASPA, and this latest challenge is just the most recent chapter in that fight.

The real issue is the law’s effect on federalism

The brief touches on some of the larger issues with the ban. Despite the subject revolving around sports betting, the overarching theme is that of federalism under the Constitution.

The US Constitution contains a section called the Supremacy Clause. The Supremacy Clause asserts that federal law is superior to state law, and as such, state laws can be overruled, or preempted, by federal legislation.

The problem is that the language of the federal law must explicitly declare itself to preempt a state law or laws. To validly strike down state laws like that of New Jersey, PASPA would have to announce that it is specifically does so. The mere existence of the law does not cause it to be superior to state law.

Each state in the USA is meant to be a semi-autonomous body. The federal government cannot force states to adopt or implement its policies – what the brief calls “commandeering.”

In other words, the brief argues, the government of the United States cannot require New Jersey to implement its ban on sports betting by removing the sports books from casinos. The paper cites several court cases as precedent to this line of reasoning.

The brief also decries the law as an attempt to prevent New Jersey from amending or repealing its own laws. To do so is equivalent to forcing a state to pass a law, which the federal government cannot do.

The next step

The Supreme Court agreed to review the case in June 2017. Right now, the Court is in the process of receiving amicus curiae briefs in support of either party or neither party.

The Court also extended the deadline to file these documents until October 16. Once the Court receives its desired briefs, the lengthy process of judicial review will begin.

The wheels of justice turn slowly. However, this case is the best chance for sports betting in the Garden State since 1993.

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Bart Shirley

Bart Shirley is a writer and poker player from Houston, Texas. When he's not teaching high school math and business, Bart writes about the NJ online casino industry and US online poker. He has a master's degree in business administration from Texas Christian University and a degree in English from Texas A&M.

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