All Bets Are On: Supreme Court Says Congress Can’t Keep States from Authorizing Sports Gambling

In a case decided on May 14, 2018, the Supreme Court of the United States held that provisions of a federal law prohibiting states from authorizing sports gambling violate the “anticommandeering” doctrine of the U.S. Constitution. The case is Murphy v. NCAA, and it has huge implications for Atlantic City, the state of New Jersey, and sports fans everywhere.

Court holds PASPA Unconstitutional

First passed in 1992, the Professional and Amateur Sports Protection Act (PASPA) made it unlawful for a state to sponsor, operate, advertise, promote, license, or authorize any betting, gambling or wagering scheme based on competitive amateur or professional sporting events. PASPA did not make sports gambling itself a federal crime, but it did authorize the Attorney General and sports organizations to bring civil actions to prevent or stop violations of the law.

Four states were grandfathered when PASPA was enacted in 1992, allowing them to pass certain state gaming laws. New Jersey had the opportunity to set up sports gambling in Atlantic City within a year of PASPA’s passage, but the state didn’t follow through. Two decades later, referendum voters approved an amendment to the state constitution to legalize sports gambling. The NCAA and three major professional leagues brought an action to stop New Jersey from doing so. This is the case which reached the supreme court and was decided last month.

The part of PASPA at issue was a provision forbidding states from authorizing sports betting. Although New Jersey did not expressly authorize sports gambling, by repealing laws which banned sports gambling schemes, it can be said to have “authorized” such schemes as far as PASPA is concerned.

Although New Jersey violated PASPA by its action, PASPA violated the US Constitution by its very existence, according to the Supreme Court. PASPA’s anti-authorization provision dictates what a state legislature may and may not do. It therefore runs afoul of the Anticommandeering doctrine and was held by the court to violate the Constitution.

The Anticommandeering Doctrine in a nutshell

The Tenth Amendment to the Constitution, the last amendment in the Bill of Rights, states that all powers not delegated to the federal government nor prohibited to the states are reserved to the states or the people. The power to give direct orders to state governments was not conferred on Congress by the Constitution. Therefore, Congress cannot commandeer a state’s legislative process by directly compelling it to enact and enforce a federal regulatory program.

Preemption argument fails as well

On similar grounds, the court also held that PASPA failed as a proper exercise of federal preemption power. In order for a federal law to preempt a state law, Congress must be exercising a power conferred on it by the Constitution. While courts have held that the Constitution does confer on Congress the power to regulate individuals, it was not granted the power to regulate states.

Without acting directly on the states, Congress could still enter the arena and prohibit or regulate sports gambling in other ways. If Congress were to act on individuals through a proper exercise of Congressional power (which is quite broad under provisions such as the Commerce Clause), then a preemption claim would be much more likely to succeed. The longer Congress waits, however, the more likely it is that more and more states will occupy the field. Although one US Senator has already announced plans to introduce legislation on sports gambling at the federal level, at the rate Congress moves, we’ll probably see more than one Super Bowl come and go before any federal law is passed.