The Likely New Solicitor General, And What It Could Mean For US Sports Betting

Posted on March 10, 2017
Written By on March 10, 2017

[toc]President Donald Trump nominated Noel Francisco for the role of US solicitor general. That pick is poised to shape the future of the legality of sports betting in the US.

The solicitor general and sports betting

Why do sports betting proponents care about who the solicitor general is?

The New Jersey sports betting case has been going through the federal legal system as the state has tried to legalize sports wagering. So far, it has been prevented from doing so under PASPA. That’s the federal law that bans single-game sports betting outside of Nevada.

The latest in that case? The state is appealing its most recent defeat in federal court to the US Supreme Court. In January, SCOTUS asked for the solicitor general to file a brief stating the office’s opinion if the NJ case should be heard.

Back in January, Trump was taking over for outgoing president Barack Obama, and who would be in the SG role was not known. The man who appeared to be the front-runner earlier this year, Charles Cooper, appeared to have withdrawn his name.

If Congress confirms Francisco, he will be in charge of the brief on the sports betting case. If the solicitor general files a brief saying the Court should hear the case, New Jersey’s chances likely improve dramatically.

What do we know about the likely solicitor general?

The news that Francisco would be the nominee came down this week. Francisco had already been working for the administration; from CNN:

Francisco, who most recently hails from the law firm Jones Day, has been working on the re-launch of the President’s travel ban executive order. At Jones Day he worked with Donald McGahn, the current White House counsel, and is one of several Jones Day alumni currently serving in the Trump administration.

What do we know about him?

  • He is a good friend of Sen. Ted Cruz, who is generally a proponent of states’ rights. If Francisco uses the office to come down on the side of states’ rights and the Tenth Amendment, this would seem to bode well for NJ.
  • He is a former clerk to Justice Antonin Scalia and he worked in the Office of Legal Counsel and the White House Counsel’s office.
  • From Above the Law, when the SG office was still up in the air: “Both Francisco and [Gregory] Katsas are experienced, highly regarded litigators. Both have argued before the Supreme Court, with three oral arguments apiece. … Both lawyers’ records are impressive.

Francisco and sports betting

Analysts are still parsing what kind of a solicitor general Francisco will be, and it’s not clear what he might do with the sports betting case.

GamblingCompliance (paywall) took a deeper dive into what the Francisco appointment could mean for sports betting. Analysts’ opinions were all over the map in that story. Some believed the appeal’s chances increased. Others believe that Francisco would say the Third Circuit Court of Appeals decision against NJ should stand.

But one of the points above — Francisco’s link to Scalia — could prove interesting.

Ryan Rodenberg, an associate professor at Florida State University, is an expert on sports betting law. He also wrote an amicus brief on the side of New Jersey in the case. Rodenberg noted to GC and Legal Sports Report that a Scalia opinion has been used by New Jersey lawyer Ted Olson. Rodenberg believes that link increases the chances of SCOTUS granting the appeal.

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Dustin Gouker

Dustin Gouker has been a sports journalist for more than 15 years, working as a reporter, editor and designer -- including stops at The Washington Post and the D.C. Examiner.

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