Solicitor General backs leagues against New Jersey in case about federal sports betting ban

Trump Administration Lawyers File Supreme Court Brief In Support Of NFL In NJ Sports Betting Case

Trump NFL NJ sports betting case
President Donald Trump has been feuding with the NFL in recent weeks over the national anthem controversy.

But the Trump administration, via the Solicitor General’s office, is supporting the NFL in its ongoing case to stop New Jersey from offering sports betting.

The NJ sports betting case at a glance

The SG’s office filed a brief with the US Supreme Court in support of the parties that oppose the NJ sports betting case. Those include the NFL, NHL, NBA, Major League Baseball and the NCAA.

The state of New Jersey has unsuccessfully fought in court to offer legal sports betting. To date the leagues have successfully argued in court that the federal sports betting ban (PASPA) does not allow them to do so, at least in the terms of a law passed in 2014.

SCOTUS will hear the case in December. New Jersey is hoping the nation’s highest court will declare the federal ban unconstitutional.

Trump nominated Noel Francisco for the Solicitor General’s role, and he was approved by Congress earlier this year. The SG also weighed in before SCOTUS agreed to hear the appeal in the case, and before Francisco took the office.

The acting SG at the time argued that the court should not hear the appeal. SCOTUS disagreed and took the case anyway. The Solicitor General is often referred to as the “Tenth Justice” for the sway it holds in SCOTUS.

What the Solicitor General said on sports betting

The Solicitor General says that SCOTUS should uphold the lower courts’ finding that New Jersey’s partial repeal of its sports betting ban did not go far enough to be legal under PASPA.

The leagues have argued that the New Jersey law essentially licenses casinos and horse racing tracks to conduct sports wagering. That puts the state in violation of PASPA, the SG argues.

New Jersey argues that PASPA unconstitutionally commandeers it to keep its own laws on the books when it comes to not allowing sports betting. But the SG argues PASPA’s “preemption of state laws authorizing sports-gambling schemes does not violate the Tenth Amendment.”

Like the leagues’ response earlier this month, it argues that PASPA falls within the bounds of the federal government’s “supremacy” over state law.

More from the brief:

Throughout this litigation, respondents and the government have argued that the 2014 Act impermissibly “license[s]” sports gambling by allowing it only at state-licensed facilities. Gov’t Cert. Amicus Br. 17; Gov’t C.A. Br. 10-13. The Act plainly does so: it repeals New Jersey’s general prohibitions on sports gambling only “to the extent they apply” at casinos and racetracks. 2014 Act § 1.

Under New Jersey law, the operators of casinos and racetracks must hold state gambling licenses. N.J. Stat. Ann. §§ 5:5-50 (West 2010), 5:12-96 (West Supp. 2011). The State has thus “license[d]” those facilities to conduct sports-gambling schemes along with their other state-licensed gambling operations.

You can read the whole brief here.

PASPA is ‘severable’

The interesting part of the SG’s take on the case is that it opines that SCOTUS does not have to rule that PASPA stands in whole or not at all. New Jersey has been arguing that this is what the court must rule on.

In fact, the SG tells the court exactly how it could “excise” some of the language of the statute (on pages 31 and 32 of the brief) — just two words — if it fears that it is unconstitutional as written. That recommendation would leave PASPA intact.

At least one amicus brief argued that other parts of PASPA were severable, as well.

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.