New Jersey is hoping the highest court in the land will hear its case on whether the state can partially repeal its own laws to offer sports betting within its borders. It has continually argued that a federal law — PASPA — that prevents most forms of sports betting around the country is unconstitutional.
On Wednesday, both Gov. Chris Christie (acting on behalf of the state of New Jersey) and the NJ Thoroughbred Horsemen’s Association filed short replies in their request for a SCOTUS review. You can see the filings here and here.
The deadline for those filings was today. The replies came after the NCAA and the major North America professional sports leagues — the NFL, NBA, NHL and MLB — made their case against the appeal.
The filings broke little new ground, as they are a reiteration of the appeal from October. They are a response to the leagues’ arguments that an appeal is not necessary in the case.
New Jersey continues to argue that PASPA violates the idea of “states’ rights” in the constitution, by not allowing it to repeal its own laws:
Congress lacks the power to compel a State to prohibit acts under its own state laws. If all a State does is narrow its own state-law prohibitions, there is nothing Congress constitutionally may preempt. …
But the principle that Congress may not regulate States’ regulation of interstate commerce hardly is dictum; it is a bedrock principle of federalism on which the entire anti-commandeering doctrine is founded.
And later, on the most recent decision in the case:
The Third Circuit’s decision deeply undermines the constitutional anti-commandeering principle and conflicts with decisions of this Court and the other courts of appeals.
The other filing, from the NJTHA, makes the same case:
Federal statutes that preempt state law do so as a consequence of the creation of some federal rule governing commerce. That’s not what PASPA does. PASPA regulates the content of state law without any federal rule governing commerce as its foundation.
The Horsemen also argue that SCOTUS should not wait for a circuit split — a ruling that disagrees with the Third Circuit — on the issue of PASPA. At least one state — New York — is considering such a challenge.
More from the filing:
Respondents would have this court wait until another State follows New Jersey’s path, changes its law, fights with the Leagues in another circuit, and wins in that circuit. But the constitutional rights of one State and its people should not depend on a sister State successfully shouldering the burden of pursuing her own rights elsewhere.
Some pundits believe that there is good reason for New Jersey to get its day in the Supreme Court. So far, however, the state has suffered a string of losses. SCOTUS hears only a small percentage of the appeals made to it.
The next move for the Supreme Court is to consider the case “conference.” That’s when the justices of the court — currently just eight — vote on whether to hear the appeal.
That conference will take place on Jan. 13, with the disposition of the case likely to be announced Jan. 17. Four of the justices would have to vote to hear the case.
If the appeal is rejected, that’s the end of the road for the case. New Jersey would have to go back to the drawing board if it wants to try to offer sports betting.
If SCOTUS agrees to hear the appeal, then the case is alive. It would be argued in front of the Supreme Court in 2017.