Sports Gambling: The Anti-Commandeering Argument Against PASPA

Background Information

In 1992, Congress passed PASPA amid concerns that the legalization of sports gambling at the State level would spread. This legislation prohibited most States from licensing sports gambling. Professional and Amateur Sports Protection Act, 28 U.S.C. §§ 3704 (1993). In 2012, the New Jersey State legislature enacted New Jersey’s Sports Wagering Law, permitting State authorities to license “sports gambling in casinos and racetracks and casinos to operate ‘sports pools.’” NCAA v. Governor of N.J., 730 F.3d 208, 217 (3d. Cir. 2013). Immediately, this Act was challenged by the United States as a violation of PASPA. The District Court of New Jersey, and the Third Circuit found in favor of the United States, determining that the State’s authorization of sports gambling was pre-empted by federal law. The Third Circuit stated that although New Jersey could not authorize sports gambling, its’ legislature was not commandeered because it was free to repeal it’s existing gambling laws. Id. at 232.  In light of the Court’s decision, the New Jersey legislature responded by passing a partial repeal of it’s sports gambling laws. NCAA v. Governor of N.J., 832 F.3d 389, 394 (3d. Cir. 2016) (“… to the extent they apply or may be construed to apply at a casino or gambling house operating in this State…”). This alteration did not change the fate of New Jersey’s legislation, as the District Court and Third Circuit Court determined the repeal operated effectively as an authorization, and therefore was pre-empted by PASPA. Id. at 401 (“… we view our discussion in Christie I regarding the relationship between ‘repeal’ and an ‘authorization’ to have been too facile. Today, we choose to excise that discussion from our prior opinion as unnecessary dicta.”) In June of 2017, the Supreme Court granted certiorari and the matter is currently pending.

Anti-Commandeering Argument

The Professional and Amateur Sports Protection Act (PASPA) is federal legislation that ensures State legislatures retain their sports gambling prohibitions. This manipulation of State resources to enforce federal law is a violation of the Tenth Amendment. The Supreme Court has assessed these violations using its anti-commandeering doctrine.

An important limitation of the federal government is that it may not dictate how the State chooses to govern its constituents. New York v. United States, 505 U.S. 144, 162 (1992) (“… the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”). The importance of this limitation is present in all of the Supreme Court’s decisions regarding the anti-commandeering doctrine. In New York v. United States, the Court struck down federal legislation that presented States with two governing options. Both options required New York to decide how it governed its citizens. In contrast, the Court upheld the Surface Mining and Reclamation Act, as the legislation offered States the opportunity to either adopt legislation according to federal policy, or abandon the area and allow the federal government to take on the full regulatory burden. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981). In the current matter, PASPA is entirely reliant on State legislation to effectuate its purpose, and its only impact is that it restricts States from repealing their existing sports gambling legislation. Brief for Petitioner at 1, Christie v. NCAA, (No. 16-476) (argued Dec. 4, 2017) (“The Leagues and the United States admit they are advancing an ‘unusual’ form of preemption… where Congress can proscribe state lawmaking… and cause state-law enactments to ‘revert…’ to [their] pre-amendment status…’”).

It is also beyond the scope of Congressional power to command States to bear the financial burden of their legislative decisions. A strong inhibitor of the federal government is their own budget constraints. To pass legislation that increases spending without an accompanying increase in federal taxation, an unpopular venture, unduly enhances federal power. Congress did not provide an accompanying regulatory scheme when it enacted PASPA, and therefore is dependent upon New Jersey’s enforcement and financial resources.

Furthermore, Congress may not commandeer, through the use of coercion, to ensure a State adopts legislation favored by federal policy. Within the anti-commandeering doctrine, the Court has yet to provide us with a clear test for coercion. However, with regard to the spending power, the Supreme Court has articulated that it is necessary to determine whether the State truly has a realistic alternative option, mere “theoretical voluntariness” does not suffice. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 679 (2012) (Scalia, J., dissenting) (“Therefore, if States really have no choice other than to accept the package, the offer is coercive, and the conditions cannot be sustained under the spending power.”). Previous legislation that has provided states with multiple options, has either provided federal regulation if a State declined to implement legislation, or requested that the State only consider federal standards. See Hodel, 452 U.S. at 288 (“If a state does not wish to submit a proposed permanent program that complies with the Act… the full regulatory burden will be borne by the Federal Government.”); FERC v. Mississippi, 456 U.S. 742, 765 (1982) (“In short, because the two challenged Titles simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals, they do not threaten the States’ separate and independent existence’…”). PASPA presents a level of coercion unseen by this Court. It requires States to either prohibit sports gambling or repeal all of its gambling legislation without assurance of federal regulation in the field. Brief for Petitioner at 1, Christie v. NCAA, (No. 16-476) (argued Dec. 4, 2017) (“… New Jersey’s only possible options are to leave its prohibitions on sports wagering at casinos and racetracks in place or ‘fully repeal them (including, presumably, restrictions on children and gambling in public buildings) …”).

A State’s ability to govern independent of federal control is critical to ensure that local politicians are only held accountable for their actions. The Court has repeatedly stated that federal commandeering diminishes the accountability of State officials. In New Jersey, the citizenry has been unable to repeal State legislation that they have deemed is a waste of state resources. Unfortunately, New Jersey’s State representatives will continue to take the blame for state legislation that is unable to be altered.

Malik Williams is a J.D. candidate, 2019, at NYU School of Law.