Repealing Sports Betting Ban Would Be a Win for States Rights

Governor Chris Christie might have one last opportunity to salvage his reputation before he leaves office next year: Christie vs. NCAA, arguably the biggest states rights case that the Supreme Court will hear. If Christie wins, the federal ban on sports betting will be lifted, a massive win for Atlantic City and sports fans around the country.

Congress passed the Professional and Amateur Sports Protection Act, or PASPA, with the stated goal of protecting the integrity of sports. PASPA made it illegal for a government entity to “sponsor, operate, advertise, promote, license, or authorize by law . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme” on competitive sports. Critics argued that its real goal was to create a monopoly for states that had existing sports betting laws. The law grandfathered in Nevada’s sports betting industry, as well as sports lotteries in Oregon, Delaware, and Montana. States like New Jersey had one year to initiate their own programs, but one year is often too short for states to write new laws.

Nevertheless, New Jersey tried again in 2012, but courts ruled in favor of PASPA. Governor Christie tried a different approach; instead of authorizing sports betting, New Jersey just decriminalized sports betting in its borders. Lower courts still saw that as a violation of PASPA, but the Supreme Court has taken up the case.

Controlling the States or Interstate Commerce?

The arguments are sophisticated, but the heart of the matter is whether a federal law that prevents repeal or modification of a state law “commandeers” the regulatory power of the states. The federal government is not allowed to meddle with the purely internal affairs of a state. The Constitution only grants Congress a certain set of powers, the broadest one being the regulation of interstate commerce. The question the Supreme Court must answer is whether prohibiting states from decriminalizing sports betting is a regulation of interstate commerce. If not, then the PASPA would be unconstitutional.

New Jersey is relying on a 1992 Supreme Court case, whereby the federal government attempted to direct states how to best dispose of their radioactive waste. However, there are many more Supreme Court cases where the federal government had the authority to direct the behavior of the citizens directly. The federal criminalization of marijuana is the most (in) famous example.

Congress is prohibited from telling the states how to act. New Jersey seeks a judgment that is unconstitutional for Congress to tell the states what not to do. New Jersey wants the Court to go further, and rule that Congress cannot tell the states what they can’t do inside their own borders.

If Congress cannot tell a state where to put their radioactive waste, then Congress should not be able to tell a state where they cannot store their waste. If Congress did have that power, then the federal government could restrict the state’s behavior until the federal government gets what it wants. For example, suppose there are five waste dumps in a state, but Congress wants the state to only use Dump #1. Congress could just tell the state that it can’t use Dumps #2-5. Congress didn’t explicitly tell the state where had to store its waste, but the effect is the same since Congress removed all other options.

New Jersey would argue that the same is true for sports betting and potentially other state’s rights issues. If Congress can not only prohibit New Jersey from legalizing sports betting, but prohibiting New Jersey from decriminalizing sports betting, states’ rights would be extremely restricted. States would not be able to legalize marijuana. States would not be able to restrict abortion. The list of issues impacted would be inevitably long.

On the other hand, if Congress were prohibited from prohibiting certain state actions, the federal government would lose a lot of power. This would almost certain shut the door on whether states could restrict state resources if federal immigration enforcement wants state assistance. Previous federal efforts to prohibit state discrimination against LGBT would permanently become a relic of the past.

The Country Needs More States Rights

The biggest argument against PASPA is that it directly limits the states. A federal ability to dictate what the states cannot do severally limits the local autonomy of the states. If the Court is sincere in its belief that states should be “laboratories of democracy,” where different states can try different policies so that others can learn from the experiments, the Court should strike down PASPA. If some states believe that sports betting are a moral hazard, they can ban sports betting if they wish. If other states believe that the economic benefits of sports betting outweigh other concerns, they should be allowed to try.

Moreover, giving more issues to states to decide would help pacify some of the political tension today. Currently, most states lean heavily in favor of one political party over the other. With the federal government switching between two extremes every eight years, people are becoming angrier whenever the other party wins. With the body politic as divided as it is today, the Court can protect the Republic from further strife by devolving more power down to the states.