Despite bipartisan calls, Congress has yet to hold hearings on sports betting.
The soon-to-be-released US Supreme Court decision could change that.
“Members of Congress need to be prepared should action at the Supreme Court open the door for sports betting in their home state or warrant federal legislation,” wrote Congresswoman Dina Titus (D-Nev.) in a letter to colleagues in December.
The Supreme Court’s decision in the New Jersey sports betting case will determine the future of the Professional and Amateur Sports Protection Act (PASPA), the 1992 federal law that exempts Nevada and a few other states from a blanket ban on legalized sports wagering.
The current case is on Congress’ radar screen, just like another high-profile gambling case 31 years ago.
The 1987 Supreme Court case — California et al. v. Cabazon Band of Mission Indians et al. — provides a useful case study in how a SCOTUS decision can spur Congress to action.
What led to the 1987 SCOTUS case?
It all started with a police raid.
In 1983, local law enforcement sought to shut down the Cabazon Card Room in Indio, Calif. Poker and other card games were offered. So was bingo.
Shortly thereafter, the Cabazon Band of Mission Indians filed a federal lawsuit seeking a declaratory judgment that “the county had no authority to apply its ordinances inside the reservations and an injunction against their enforcement.”
The Cabazon Band was joined in the lawsuit by the Morongo Band of Mission Indians. The state of California intervened on the side of the local officials who authorized the shutdown raid.
The trial court ruled in favor of the tribes, holding that “neither the State nor the county had any authority to enforce its gambling laws within the reservations.”
The US Court of Appeals for the Ninth Circuit upheld the ruling and California appealed to the Supreme Court. The Supreme Court took the case, holding oral arguments on Dec. 9, 1986.
The Supreme Court’s 1987 ruling
The Cabazon and Morongo Bands won again at the Supreme Court.
“We conclude that the State’s interest in preventing the infiltration of the tribal bingo enterprises by organized crime does not justify state regulation of the tribal bingo enterprises in light of the compelling federal and tribal interests supporting them,” wrote Justice Byron White in the majority decision handed down on Feb. 25, 1987. “State regulation would impermissibly infringe on tribal government.
“[T]his conclusion applies equally to the county’s attempted regulation of the Cabazon card club.”
In justifying its decision, the Supreme Court pointed to the fact that California already permitted many forms gambling in the state, including bingo and a lottery.
The ruling opened the door for tribal gaming nationwide, just like the current New Jersey case could do in the context of sports wagering.
How did Congress react?
Congress moved swiftly after the Supreme Court’s Cabazon decision and enacted the Indian Gaming Regulatory Act (IGRA) the very next year.
The IGRA provided a federal framework for tribal gaming, a blueprint that remains in place today and is overseen by the National Indian Gaming Commission.
“The Congress finds that…existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands,” stated the IGRA. “The purpose of this [law] is to provide a statutory basis for the operation of gaming by Indian tribes.”
The judicial-legislative two-step with the Cabazon Supreme Court decision being quickly followed by Congressional enactment of the IGRA is the same type of cause-and-effect that could happen in the sports betting context.
A ‘telling’ exchange
Of all the sub-issues lurking in the Supreme Court’s sports betting case, the prospect of an unregulated environment where “anything goes” is among the most likely topics to garner the attention of Congress.
A revealing exchange between Chief Justice John Roberts and Deputy Solicitor General Jeffrey Wall during oral arguments provided a preview. The Office of the Solicitor General is the part of the Department of Justice that handles Supreme Court cases for the president. In relevant part:
Roberts: “[W]hat if the repeal is across the board, no exceptions?”
Wall: “If New Jersey just repeals its prohibitions, we have said we don’t have a problem with that.”
Roberts: “Well, is that serious? You have no problem if there’s no prohibition at all and anybody can engage in any kind of gambling they want, a 12-year-old can come into the casino — you’re not serious about that.”
Wall: “I’m very serious about it, Mr. Chief Justice.”
At a later stage of the oral argument, Wall speculated on what it would take to get the attention of Congress.
“[I]f states start lifting their prohibitions in whole, I think Congress may well want to revisit that,” said Wall.
Capitol Hill outlook for 2018 and beyond
Like the 1987 Cabazon Supreme Court case, the pending New Jersey case could propel Congress to action.
If the Supreme Court strikes down PASPA entirely as a violation of the Tenth Amendment, then Congress may look to fill the gap with a new law that does not run afoul of the Constitution.
Alternatively, if New Jersey earns a narrow victory that upholds its “partial repeal” but otherwise leaves PASPA in place, federal lawmakers may look to the Roberts-Wall exchange during oral argument as a preview of what would happen if other states follow New Jersey’s lead and move to repeal their laws in whole or in part and leave a regulatory void.
Finally, if the five sports leagues prevail in the SCOTUS case, keeping PASPA as the status quo may seem undesirable too, with about 20 states who would prefer to determine for themselves whether sports gambling is to be permitted as a matter of state law.
The Congressional holding pattern on sports betting is unlikely to last.
And the Supreme Court’s decision — irrespective of what the ruling is — will probably nudge federal lawmakers to act.