[toc]Multiple news outlets are reporting that Attorney General Jeff Sessions — the top official at the Department of Justice — is poised to end the DOJ’s policy of non-intervention in the marijuana law enforcement context.
Confirmation came when Sessions issued a memo on Thursday afternoon.
As such, the importance of the US Supreme Court’s decision in Christie vs. NCAA grows, as the ruling in the New Jersey sports betting case could impact a number of areas beyond sports gambling.
The Justice Department’s policy shift could also nudge left-leaning SCOTUS justices towards a narrow ruling in favor of New Jersey.
DOJ and law enforcement
Federal law labels marijuana as an illegal controlled substance. Starting in 2013, however, the Department of Justice formally announced that its prosecutors would not intervene in legalization and decriminalization state legislative action that started in Colorado and Washington state.
The move by AG Sessions would lift the non-intervention edict from the administration of President Barack Obama and allow federal prosecutors to exercise discretion as to whether to pursue criminal cases in their districts.
The partial federal sports betting ban in the Professional and Amateur Sports Protection Act (PASPA) deputizes the Attorney General (and sports leagues) to pursue injunction-seeking actions against states and private parties who are allegedly in violation of PASPA.
In the 26 years since PASPA was enacted, the DOJ has never initiated a PASPA case. The current Supreme Court case was started by the NCAA, NBA, NFL, NHL and Major League Baseball, with the Justice Department filing a brief in support of the leagues as an “amicus curiae.”
‘Federalism’ and sports betting
When state policymaking is potentially in conflict with federal law, the concept of “federalism” is often discussed. Federalism, at its core, is about states’ rights in the shadow of Congress.
Federalism is what is being litigated in the SCOTUS sports betting case.
Can Congress permissibly pass a law — like PASPA — that prevents New Jersey from legalizing and regulating sports gambling? Or does New Jersey, regardless of what Congress may desire, have the sovereign power to enact (and repeal) its own laws on sports wagering?
The same questions were asked in the marijuana context for years until Obama’s Justice Department formally moved away from enforcing federal marijuana law in 2013.
SCOTUS and federalism
Issues about states’ rights are often thought of as something embraced by conservative federal judges.
But states’ rights — as evidenced by current debates over marijuana, immigration and other hot-button issues — is a legal argument that is relevant to the more liberal side too. (Interestingly, NJ Gov. Chris Christie is in favor of sports wagering but not of marijuana legalization at the state level, a seemingly hypocritical stance when it comes to states’ rights.)
That is how today’s DOJ news overlaps with the pending New Jersey sports gambling case.
During last month’s oral arguments, Chief Justice John Roberts, Justice Anthony Kennedy, Justice Samuel Alito, Justice Neil Gorsuch and slightly-left-of-center Justice Stephen Breyer all seemed skeptical of the sports leagues’ argument in favor of federal power over sports betting.
In contrast, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elana Kagan were perceived to be more receptive to the idea put forth by the sports leagues that Congress should be able to ‘preempt’ state laws in conflict with PASPA.
That’s the legalistic catch-22 for Justices Ginsburg, Sotomayor and Kagan.
If one or more of them write a decision in the New Jersey case that broadly upholds federal power in an area that also has deep roots in state policymaking — like sports betting — the current Justice Department could cite such a decision in support of President Donald Trump’s administration’s stance on marijuana, sanctuary cities, gun laws, voter fraud and potentially other issues.
Practical considerations at the Supreme Court
Among the outcomes discussed during last month’s hearing, there are generally two ways New Jersey could win the case.
- Scenario #1 – PASPA is declared unconstitutional, leaving New Jersey (and other states) to regulate sports betting as they deem appropriate.
- Scenario #2 – PASPA is deemed constitutional, but New Jersey’s partial repeal of some of its sports wagering laws is ruled to be in compliance with PASPA’s directive that states not “authorize” sports betting.
Today’s news may make the second scenario — a narrow statutory win that benefits New Jersey only and limits the precedential value of the decision to the strict confines of sports betting — more attractive to all the Supreme Court justices, especially those in the more liberal wing.
A decision in the New Jersey sports betting case is expected no later than June.