Somin: Sports Gambling Decision is a Major Victory for Federalism



Earlier today, the Supreme Court issued its decision in Murphy v. NCAA, striking down a federal law that blocks states from “authorizing” sports gambling under their own state laws. The ruling is a major victory for federalism, and has important implications that go beyond the issue of sports gambling. It is also notable that the ruling was a 7-2 decision, with liberal justices Stephen Breyer and Elena Kagan joining the five conservatives in the majority. It is the latest of a series of cases in which one or both of them have joined with the conservative block in showing at least some willingness to enforce structural constraints on federal power (a phenomenon I discussed in this article).

Murphy invalidates a provision of the federal Professional and Amateur Sports Protection Act (PASPA), which mandates that states may not “sponsor, operate, advertise, promote, license, or authorize by law or compact” sports betting. A coalition of sports leagues, including the NCAA, the NBA, the NFL, and Major League Baseball, filed a lawsuit arguing that New Jersey’s 2012 and 2014 laws partially legalizing sports gambling within the state qualifies as “authorization” and thus violates PASPA. New Jersey, for its part, argued that that PASPA violates the “anti-commandeering” principles of the Tenth Amendment. Under several longstanding Supreme Court precedents, the Tenth Amendment prevents the federal government from compelling the states to enforce federal law, including by forcing state legislatures to enact laws of their own. PASPA was defended by an unlikely coalition of major sports leagues, and the Trump administration; unlikely because Trump has engaged in a war of words and Tweets against various NFL and NBA players, coaches, and owners who condemn his administration and (in the case of NFL players) kneel during the national anthem. The Supreme Court majority agreed with the sports leagues that New Jersey’s law violates PASPA, but also agreed with New Jersey that PASPA is unconstitutional.

To get around the anti-commandeering doctrine, the sports leagues and the administration claimed that there is a distinction between commandeering and blocking “affirmative authorization” of gambling under state law. In their view, PASPA does not qualify as “commandeering” because it does not prevent complete legalization of sports gambling, but only state laws that affirmatively authorize gambling in some way, as New Jersey supposedly does by restricting it to some types of locations and limiting the range of teams that gamblers can bet on.

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