Momentum Building for New Jersey Sports Betting Case

New Jersey sports betting supreme court

Single game sports betting has been illegal in every state except Nevada for so long that it is difficult to imagine that all changing in the not-too-distant future. Even so, a repeal of the federal prohibition of sports betting remains a distinct possibility as momentum builds for New Jersey’s upcoming Supreme Court case.

What was once a longshot bid to legalize sports betting in New Jersey is now a case that will be heard before the Supreme Court of the United States. The outcome of this case is far from certain, but the fact that the Supreme Court has even agreed to take the case despite so many predictions that SCOTUS would express no interest in doing so shows that this effort has, at the very least, a legal leg to stand on.

That’s not all. New Jersey is gaining allies in its effort to prove PASPA unconstitutional. Two groups have each filed brief amicus curiae in support of New Jersey. A brief amicus curiae is a filing by a person or group “who is not a part of the litigation, but who believes the court’s decision may affect its interest.”

Amicus briefs can be used to present legal arguments as well as technical knowledge or other information the court may find useful. The effectiveness of any single amicus curiae is debatable, but growing support for New Jersey should be heartening for PASPA opponents. The more allies New Jersey has in its corner, the more prepared it will be to present an effective case in front of the Supreme Court.

The two briefs we will be discussing today lean heavily on the anti-commandeering doctrine to make their arguments. Additionally, the second brief we will discuss touches on some of the unintended consequences of the federal prohibition of sports betting.

First Brief: Protect States’ Rights

The Cato Institute, Pacific Legal Foundation, Competitive Enterprise Institute and the Wisconsin Institute for Law and Liberty have submitted a brief amicus curiae to the Supreme Court in support of New Jersey’s efforts at the end of August.

The 31-page brief is a bit of a heavy read, but the basic summary is that the federal government is Constitutionally prohibited from dictating to states which laws they may pass or repeal.

In making its argument, the brief cites a 1992 Supreme Court case (New York v. United States) in which the Court found that the federal government’s attempt to force states to take an action violated the Tenth Amendment protecting states’ rights.

Drawing from the 1992 decision, the brief concludes:

“The Constitution forbids Congress from commandeering the states whether by compelling them to enact a new policy or to continue enforcing an existing one long after it has proven ineffective, unpopular, or both.”

The brief also contends that although the states originally adopted PASPA voluntarily, this has no bearing on the case today:

“Today, New Jersey officials and voters have no say in the state’s own gambling laws. Federal law commands that those laws remain what they were 25 years ago, and state officials must continue to enforce them, because any reform would ‘authorize’ sports betting. That separates this case from Congress’ constitutional power to directly regulate individuals and to preempt conflicting state laws. Congress may give states a choice of regulating to federal standards or ceding the issue to federal control. But Congress cannot deny states that choice and simply dictate what their own laws shall be.”

The Cato Institute has also published a handy summary of the brief on its blog.

It is worth noting that the Cato Institute and Pacific Legal Foundation filed a similar brief in 2014 as New Jersey was in the process of petitioning the Supreme Court to hear its sports betting case that year.

While that brief based its argument on states’ rights like the most recent brief does, it also argued that “discrimination in favor of Nevada and other exempted States violate the fundamental principle of equal sovereignty.” That second argument is noticeably absent from the 2017 brief.

Both arguments were ultimately rendered moot after the Supreme Court declined to take up the case. Now that the Supreme Court has agreed to take up the case in 2017, we’ll get to see some of these arguments play out in front of the highest court in the United States.

Second Brief: Sports Betting Prohibition is a Failure; Protect States’ Rights

Within days of the first brief, the American Gaming Association (AGA) filed its own brief in support of New Jersey. The AGA’s brief begins by explaining why the AGA is an interested party in the case and then goes on to lend support to the anti-commandeering argument underpinning New Jersey’s case.

In the brief, the American Gaming Association explains that one of its primary roles is to combat illegal gambling and to promote next generation regulatory regimes on behalf of its members. To that end, the AGA has come out against PASPA, which it considers a complete failure.

The AGA brief argues that PASPA has failed to put an end to sports betting and that Americans continue to bet on sports despite the ban. Rather than continuing with a failed federal prohibition, states should be permitted to regulate (or ban) sports betting as they see fit.

The brief includes the following statistics (which we should fairly note are AGA estimates) in support of its contention that the federal ban is a total failure:

  • Americans illegal bet over $150 billion per year on US sports each year
  • Americans bet an estimated $15 billion on the most recent Super Bowl and NCAA men’s basketball tournament alone
  • 97% of those bets on the Super Bowl and NCAA tournament were placed illegally

The AGA’s brief then moves to a legal argument in favor of New Jersey, complete with case law and numerous references to the Constitution. Two paragraphs in particular offer the most concise summary of the AGA’s argument in whole:

“PASPA has thus had the perverse effect of pushing an enormous market underground by way of federal decree while stamping out state and local efforts to adapt their own laws pursuant to their own citizens’ wishes. States like New Jersey are compelled, at the federal government’s direction, to keep their antiquated sports-betting laws and regulations effectively frozen in place at a federal standard. That result is irreconcilable with the constitutional system of dual sovereignty and dangerous in its own right.

“Regulation of sports betting needs to be accomplished in a sensible manner that promotes, rather than thwarts, the strictures and principles of federalism. Because PASPA fails to do so, the AGA submits this brief.”

This is the Furthest New Jersey Has Progressed to Date

New Jersey has been fighting to legalize sports betting since 2011. That year, New Jersey citizens voted in favor of legalizing sports betting in a referendum. Governor Chris Christie signed a bill legalizing sports betting in 2012, but the sports leagues and NCAA sued to stop the bill from becoming law.

A federal court and the Third Circuit appeals court ruled against New Jersey. New Jersey petitioned the Supreme Court to hear the case, but the Supreme Court declined to hear the case.

Now that the Supreme Court has finally agreed to take up New Jersey’s sports betting case, this marks the furthest point the state has made in its effort to legalize sports betting within state lines. Should the Supreme Court rule in favor of New Jersey, it will have wide-ranging impacts across the nation as it will open the doors for other states to follow suit.

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