The lawyers watching every move that the nation’s highest court makes will certainly be very interested in it, beyond the ramifications for sports betting in the US. It’s possible the court will rule on the case from an anti-commandeering or equal sovereignty angle, which could have ramifications well beyond New Jersey and gambling.
There are a lot of possible outcomes, and guesses about what SCOTUS may do in the case.
Lawyers and analysts who have and haven’t been following the case will be weighing in over the next few months. And that includes at SCOTUSblog, which is the go-to source for all things in front of the court.
Here’s a look at some of what lawyers have been writing there.
Anti-commandeering or not?
Steven Schwinn, a professor of law at John Marshall Law School in Chicago, penned It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it).
Schwinn argues that the doctrine that “says that the federal government can’t require states or state officials to adopt or enforce federal law,” should go away. Some experts following the case expect the court to deem the Professional and Amateur Sports Protection Act (PASPA) unconstitutional, as violating the doctrine.
Schwinn argues this shouldn’t be how the court rules.
…This case is the perfect vehicle for the Supreme Court to jettison the anti-commandeering doctrine altogether. But don’t count on it: Key federalism rulings in recent years tell us that this court is nowhere close to abandoning this judicially-created federalism protection. …
The court should resist New Jersey’s call to expand the doctrine into undefined (and undefinable) areas, only further damaging federalism, and restrict it…
He also writes that SCOTUS should “flatly reject New Jersey’s disingenuous attempt to sidestep federal law in the name of anti-commandeering.” Full article here.
The blog’s Amy Howe also took a bird’s eye view of the case from the states’ rights angle.
Betting on federalism
Jonathan Wood, an attorney at Pacific Legal Foundation also weighs in on anti-commandeering, writing In sports-betting case, the Supreme Court should bet on federalism. The PLF has also filed amici briefs in the lower courts.
Again, Wood says the issues in play are larger than just sports betting in one state:
Limiting the commandeering doctrine to save PASPA would pose significant federalism problems. …
The Supreme Court’s decision to take up the question of PASPA’s constitutionality is a welcome sign. Letting the 3rd Circuit’s decision stand would risk Congress using a similar approach to undermine federalism and political accountability in other policy areas. By deciding the constitutional question now, the Supreme Court can set the necessary limits on commandeering while only PASPA is at stake.
Wood also calls PASPA a “failed statutory regime.” Full article here.
West Virginia weighs in
Elbert Lin, the solicitor general of West Virginia, also just offered his take. West Virginia filed an amicus brief on New Jersey’s side in the Third Circuit.
This case is about far more than sports wagering. The principle that the Supreme Court articulates in this case could have wide-ranging implications for the relationship between the federal and state governments. If the court decides that Congress has the power to co-opt state legislatures and prevent them from repealing their own laws, Congress could prevent state experimentation in a host of other important policy areas. …
By granting certiorari in this case, the Supreme Court may well have recognized that, under PASPA, Congress has pushed its authority too far.
Full article here.
Zachary Price, an associate professor at UC Hastings College of the Law, hits on another point of constitutional law in Congress’ bet against equal sovereignty.
That’s the doctrine in which federal law should treat all states the same. PASPA, of course, does not do that. Nevada sports betting was grandfathered in, as is limited sports wagering in other states.
Doubts about PASPA’s overall validity should play no role in the Supreme Court’s decision in this case, because PASPA’s selective application to a subset of states is perfectly constitutional.
Others have disagreed with this application of equal sovereignty, opining that there’s no good reason for PASPA’s differing treatment of states.
Full article here.
The AGA weighs in
Sports betting is one of the major issues on the radar of the American Gaming Association. So it’s no surprise the group representing US casinos weighed in here. (The AGA will also file an amicus brief at some point.)
Its argument is that states should be allowed to do as they wish when it comes to sports betting, much as they do with other gambling matters.
The effect of PASPA has been to freeze in place state law as it existed in the early 1990s and to interfere with states’ police powers and authority to regulate local matters of economic development and public morality.
Full article here.
PASPA is in bounds
Michael Fagan, an adjunct professor at Washington University Law, does work for the group Stop Predatory Gambling. Not shockingly, Fagan and that group are against a ruling that would favor New Jersey on sports betting.
New Jersey’s attempt to authorize commercial sports wagering necessarily affects interstate commerce, most plainly because the state’s statute bans bets on games involving New Jersey colleges. This, of course, attempts to protect New Jersey colleges from the integrity risks inherent in sports gambling.
The ban, however, shifts the risks of corruption to other states’ college games and related commercial interests. Precluding such self-interested legislation that disadvantages other states is a key reason why the U.S. Constitution granted the federal government broad powers over interstate and foreign commerce.
Full article here.