Legal Docket: The balance of power between Washington and the states

NICK EICHER, HOST: From member-supported WORLD Radio, this is The World and Everything in It for Monday, December 18th. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. 

Well, Supreme Court oral arguments are on hiatus until January 8th. We’ll get you caught up on all of the oral arguments we’ve not yet covered between now and then.

EICHER: Today, though, we begin with a different kind of court, Madison Square Garden, New York City, to be precise.

AUDIO: Bradley on the left, a pass to Bradley. Jump shot, left side. Good! Bill Bradley connects on his first field-goal attempt. 40-23 the score

Bill Bradley, scholar athlete at Princeton, pro-basketball player, New York Knicks… And United States senator in the 1980s and ’90s.

AUDIO: The senator from New Jersey. / Mr. President, um, I will be brief…

Senator Bradley put his two careers together in 1992, sponsoring the Professional and Amateur Sports Protection Act (PASPA), also known as the Bradley Act. It was a federal ban on sports betting at the state level—with a carve-out for Nevada and three other states.

AUDIO: I would prefer that sports betting be banned in all states in the United States, but, ah, I think 46 states is better than none.

Bradley in Senate debate in 1992 returned to his former career to make a point about how PASPA would protect the integrity of college and professional sports.

AUDIO: I remember one game, in Madison Square Garden, toward the end of the game, and one of my teammates happened to throw the ball up — we were ahead by six or eight points, I forget which — at the other end of the court and it went in the basket! And the next week, the press speculated, ‘well was this an attempt to beat the line on the game?’ It is this kind of speculation that will be fed if we put the imprimatur of the state on sports betting.

REICHARD: PASPA won overwhelming approval and it’s been law for 25 years. It may not see its 26th birthday, though not if the state Bill Bradley represented, New Jersey, has anything to say about it.

New Jersey has a case now before the U.S. Supreme Court that could spell the end of PASPA, and open the floodgates to sports betting all across the country.

EICHER: Here’s the background. In 2011, New Jersey voted by 64% to allow sports betting. Its legislature soon followed up and added laws to govern it.

That brought a lawsuit from college sports—the NCAA—as well as pro sports—basketball, the NBA, football, the NFL, hockey, the NHL, and major-league baseball. They all teamed up and sued New Jersey Governor Chris Christie (and assorted officials) for violating PASPA.

The leagues say what Bill Bradley said back in the 1990s, that sports gambling compromises the integrity of the game.

REICHARD: The legal argument is one of states’ rights, or federalism, versus the notion of pre-emption, that the federal government has the power to set national policy. It’s in the Constitution: the Supremacy Clause.

That side says PASPA makes no unconstitutional obligations on states.

In fact, New Jersey fully complied with the federal law for years by doing absolutely nothing. So this, they say, can’t be federal overreach into state business.

Governor Christie and the others say that’s just semantics.

The result is the same: his state is kept from regulating an activity its very own elected representatives want to run in their own way.  The federal government is usurping state power in contravention of the 10th amendment, which says: “Powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States …”

At the Supreme Court, here’s New Jersey’s lawyer, former Solicitor General Ted Olson, striking a practical note.

OLSEN: What I’m saying is, and all of the evidence supports this, that betting on sports is taking place all over the United States. Five percent of it is legal in Nevada.  The rest of it is illegal. New Jersey…

… New Jersey decided get in on the action.

Then Olson sneaked in a history lesson of what the Framers of the Constitution had in mind to keep power from accumulating in one place:

OLSEN: Anyone familiar, as this Court is, with the history of the Constitutional Convention knows that there was specifically on the agenda an opportunity for Congress to nullify state laws. That was defeated.

Justice Ruth Bader Ginsburg had another doctrine in mind.

GINSBURG: Mr. Olson, isn’t that what the government does whenever it preempts state laws?  

Pre-empt, meaning to supercede or replace, which is what Ronald Reagan’s administration did in deregulating the airlines.

The authority for that “preemption” was the Supremacy Clause.  That says when federal and state law conflicts, the Constitution has priority. It can “pre-empt” the state law.

But Olson distinguished what New Jersey did from the airline scenario. There, the federal government instituted a scheme to govern the deregulation. Not so with the federal ban on sports gambling. Even though the feds could have regulated the activity, it opted instead just to tell states what they can and cannot do. Olson argued that’s federal overreach.

Justice Elena Kagan cast about for some standard:  

KAGAN: … you’re suggesting that the federal government, in order to preempt state activity, has to itself enact some kind of comprehensive regulatory scheme; and the question is, you know, how — what would we be looking for if that — if that were our test? When do we know that they’ve enacted a sufficiently comprehensive regulatory scheme in order to allow preemption of state rules?

Olson countered, we’re not even there yet. Once the feds decide to regulate a field, and take responsibility for making it happen, pre-emption is fine. But it didn’t do that here- it just commandeered state power and resources in violation of the 10th Amendment. That anti-commandeering doctrine says the federal government cannot require the states to either adopt or enforce its laws.

That’s the same argument used by so-called sanctuary cities: the feds can’t make a law and then commandeer state resources to carry it out for them.

Olson seemed to gain favor with Justice Anthony Kennedy.

KENNEDY: … so the citizens of the State of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have. That seems commandeering ….this blurs political accountability.  The citizen doesn’t know is this coming from the federal government, is this coming from the state government. That’s precisely what federalism is designed to prevent.

… “Federalism,” there’s that term again. It actually means to empower not the feds, but the states. In federal systems like ours, states do have enormous power.

Arguing on behalf of the NCAA and the sports leagues against New Jersey’s sports betting scheme was another former Solicitor General, Paul Clement. He pushed back on the idea that PASPA “commandeers” anything.  

CLEMENT: … I’ll start with the proposition that we know there’s absolutely nothing wrong with congressional legislation that operates on states as market actors.   

Justice Stephen Breyer set a verbal trap for Clement – again, for the sports leagues against New Jersey’s gambling. Listen:

BREYER: Give me a one sentence answer.  In the Airline Deregulation

Act, the Congress wanted a world, i.e., the United States, where market forces set prices. In all the acts you’re talking about put together, Congress wanted the United States, fill in the blank.

CLEMENT: Congress wanted there to be no state-sponsored or -operated gambling taking place by either individuals or by the state.

BREYER:  Right. Now, you had to use the word “state-sponsored” to date that and as soon as you had to describe it, you had to use the word “state-sponsored” there. “State-sponsored” means legislation, and, therefore, there is no interstate policy other than the interstate policy of telling the states what to do.

CLEMENT:  Can I amend my answer?

BREYER:  Yes. (Laughter.)

CLEMENT:  Congress — Congress in all of these statutes did not want there to be sports gambling schemes operating in interstate commerce.

One interesting side note is that Justice Sonia Sotomayor acknowledged what many people complain about: too many laws and regs that nobody can follow. The implication is every citizen becomes an unknowing criminal, at the prosecutor’s discretion. But her point is that just because there’s a law on the books, doesn’t mean it must be enforced.

Listen.

SOTOMAYOR: Mr. Olson, if every governor enforced every law on the book, the state would be more than bankrupt.  It would have no way of surviving.

OLSON:  I understand that.

SOTOMAYOR:  There are countless laws, and even laws that are in force, that are not enforced totally.

OLSON:  I understand -­

SOTOMAYOR:  States make choices all the time.

OLSON: Yes, and the states make those choices, then.

Indeed, states do make choices. But the question is whether the federal government has the right to control state lawmaking.   

A ruling for New Jersey will shake up the sports betting world, and beyond. The implications are huge- federal control of states spilling over from just gambling to everything else- fireworks, pharmaceuticals, self-driving cars, and so on.

Prediction? With liberal-leaning Justice Breyer joining the conservative-leaning four plus Justice Kennedy, looks like a 6 to 3 win for Governor Chris Christie, who leaves office next month.

And that’s this week’s Legal Docket.  

(AP Photo/John Locher) People make bets in the sports book at the South Point hotel and casino in Las Vegas.

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