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While there was nothing earth-shattering in the reply briefs from the state of New Jersey and the NJ Thoroughbred Horsemen’s Assocation, it’s still the last filings to analyze before we hear what the SCOTUS justices think about the case.
New Jersey’s argument remains the same: the federal sports betting ban — PASPA — unconstitutionally commandeers the state into keeping its sports betting prohibition in place. The NCAA and the major pro sports leagues — the NBA, NFL, NHL and MLB — on the other side of the case have argued that is not the case.
The state, via attorney Ted Olson, is still arguing that PASPA should be struck down in its entirety:
PASPA’s prohibition on state “authoriz[ation] by law” impermissibly commandeers state regulatory authority by dictating the content of state law—States may not legalize sports wagering. Because this constraint on state legalization is central to the statutory scheme, the entire statute should fall, because Congress would not have otherwise enacted PASPA.
Without this central provision, PASPA would allow States to legalize sports wagering but prohibit them from regulating it, opening the floodgates to a multi-billion dollar expansion of uncontrolled and underground sports wagering. The Congress that enacted PASPA cannot have wanted that irrational result; to the contrary, the text of PASPA’s exceptions makes clear that Congress wanted sports wagering, wherever it might be permitted, to be regulated by States.
New Jersey continues to reject the idea that PASPA requires the state to “do nothing” in order to comply with PASPA. The state reiterates that it has to enforce its own sports betting prohibition despite the fact that the legislature enacted a law — via referendum — to partially repeal that ban.
“If Congress wants to regulate sports wagering, it may and must do so itself; Congress cannot compel States to regulate ‘as its agents,’ ” Olson argues.
The Leagues and the United States attempt to confine the anti-commandeering principle to federal laws that affirmatively command States by telling them “what they must do,” rather than “what they must not do.” … This, the United States asserts, is “the fundamental distinction between commandeering and preemption.”
That formulation, which seeks to limit New York and Printz to their particular facts, badly misapprehends “the allocation of power contained in the Commerce Clause.”
Olson then uses this particularly colorful example to illustrate his point:
The “prohibition/command dichotomy” also immediately collapses in application. Just as a prohibition against exhaling is a requirement to hold your breath, and a prohibition against sleeping is a command to stay awake, a prohibition against repealing a law is an unconstitutional requirement “to . . . maintain” that law.
The United States explicitly concedes that PASPA “would violate the Tenth Amendment if it commanded the States to . . . maintain prohibitions on sports gambling,” but somehow pretends away the injunction that indisputably requires New Jersey to do exactly that.
NJ also argues that the intent of PASPA is not to allow entirely unregulated wagering, which is something that the leagues, New Jersey and even the federal courts to date have agreed is possible.
The so-called “nuclear option,” in which New Jersey fully repeals its sports betting prohibition is politically unlikely put still a possible — and legal — outcome.
NJ appears to appeal to SCOTUS’ common sense in interpreting PASPA:
Because PASPA was enacted to stop the spread of sports wagering, it cannot reasonably be construed to offer States an option of fully repealing all of their prohibitions on the activity and opening the field to a vast, uncontrolled universe of sports gambling. …
It is thus unsurprising that the legislative history nowhere suggests that PASPA gives States an “option” to repeal all of their prohibitions on sports wagering. Indeed, until New Jersey claimed that PASPA impermissibly commandeered, the Leagues had forthrightly described it as “bann[ing] sports betting in states that had not authorized such schemes in the past.”
New Jersey pushes back at the idea that PASPA can be fixed, by severing a small part of its language to make it constitutional. This is an idea espoused by the US Solicitor General, which will participate in oral arguments:
The federal prohibition on state legalization of sports wagering is the centerpiece of PASPA, and once it is struck down as unconstitutional, the rest of the statute cannot function as Congress intended. The challenged provision therefore is not severable.
Interestingly, New Jersey also brings up the possibility of federal regulation, something the NBA talked about loudly at two different events this week.
To be sure, Congress could displace those prohibitions with a regulatory—or deregulatory—regime of its own.
Now, we wait. Oral arguments take place Dec. 4. Then, we’ll get a sense of what the nine justices are thinking and which arguments they find compelling via questions they ask attorneys.
After that, there’s more waiting. A decision is expected some time in the first half of 2018.