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New Jersey made its appeal to SCOTUS in October. The latest in a string of losses for New Jersey in its quest to legalize sports betting within its borders came in lopsided fashion in the Third Circuit Court of Appeals this summer.
The newest brief — which can be seen here — was submitted to the Supreme Court by the office of West Virginia Attorney General Patrick Morrisey. It was joined by the AGs of four other states: Arizona, Louisiana, Mississippi and Wisconsin.
It comes shortly after sports betting law expert and Florida State associate professor Ryan Rodenberg filed an amicus brief. Rodenberg argued that the federal prohibition on sports betting — PASPA — grants unconstitutional powers to pro sports leagues.
West Virginia and Wisconsin also joined New Jersey the last time it unsuccessfully appealed to SCOTUS. Wyoming did not join the amicus brief this time, making the other three states new to the SCOTUS amicus filing.
The states in the amicus brief argue that the Third Circuit usurps states’ rights by maintaining the federal ban on sports betting:
In upholding the Professional and Amateur Sports Protection Act (“PASPA”) … the Third Circuit radically expanded the doctrine of federal preemption by holding that Congress may forbid the States from repealing their existing laws without affirmatively setting forth a federal regulatory or deregulatory scheme.
In addition, the Third Circuit disregarded this Court’s anti-commandeering jurisprudence by requiring state legislators to maintain, and state executive officials to enforce, laws that would otherwise have been repealed.
The states contend they are not so much concerned about the ability to offer sports betting, saying they “take no position on the wisdom of the state and federal sports wagering laws in this case.” Instead, they are worried about the precedent of the court rulings on PASPA to date:
The concern of Amici States—the States of West Virginia, Arizona, Louisiana, Mississippi, and Wisconsin—is not what Congress regulates but how it does so. Even where it has Article I authority to act, Congress may not force the States to act as the vehicle for implementing federal policy and thereby shift to the States political accountability for its actions. Such coercion is unconstitutional commandeering.
Of the states joining the brief, only Mississippi’s public officials have been vocal about their desire to one day legalize sports betting.
We’re likely still a ways from learning if the Supreme Court will actually hear the appeal. A response from the pro sports leagues opposing NJ in the case is due in a month.
There’s no timeline for SCOTUS to make a decision. However, most legal experts following the case believe its chances of being heard are bleak.
In the meantime, a new legislative effort cropped up in New Jersey as it tries to find yet another way around PASPA.