SCOTUSblog by Stacy Papadopoulos 8/15/2017
In 1992, Congress enacted the Professional and Amateur Sports Protection Act, which prohibits all but a few states from legalizing and regulating sports betting. A quarter of a century later, sports fans, state policymakers, the law-enforcement community and even some professional sports leagues agree that PASPA is misguided and failing. During its next term, the Supreme Court will decide whether PASPA is also unconstitutional.
There is no dispute that Congress could, as a matter of federal law, prohibit or regulate interstate sports betting, and in the process pre-empt any state law on the subject. But PASPA does not do that. Instead, PASPA forces states to continue prohibiting sports betting as a matter of state law – and, presumably, to enforce those prohibitions using state resources. State governments are required to maintain their sports-betting laws as they existed in 1992, but have no power to amend, strengthen or repeal those laws. The effect of PASPA has been to freeze in place state law as it existed in the early 1990s and to interfere with states’ police powers and authority to regulate local matters of economic development and public morality.
For over a century, however, the Supreme Court has made clear that Congress may not require states to require or prohibit certain acts, even when the federal government could require or prohibit those acts in the first instance. Under this “anti-commandeering doctrine,” the court has repeatedly struck down laws that coopt the states’ law-enforcement apparatus and treat states as mere outposts of the federal government. Thus, in New York v. United States, the Supreme Court held that Congress could not force states either to take title to low-level radioactive waste generated within their borders or to adopt federal standards regulating such waste. Similarly, in Printz v. United States, the court determined that Congress could not compel state law-enforcement officials to perform background checks for would-be purchasers of firearms. Simply put, Congress may not command states to “promulgate and enforce laws and regulations,” control or influence the manner in which states “regulate private parties,” or “require the States … to regulate their own citizens.” This is because, as the Supreme Court has recognized, a state’s ability to decide what its own law is (or is not) is a “quintessential attribute of sovereignty” and “precisely what gives the State its sovereign nature.”
PASPA violates these core principles of American federalism by compelling almost every state to continue prohibiting sports betting, regardless of what is in the best interest of the state and its citizens. The harm of such federal overreach is more than purely structural. Preserving a state’s autonomy to enact, enforce, modify and repeal its own laws as it sees fit protects individual rights and promotes democratic accountability. PASPA’s effect on New Jersey’s long-running effort to legalize and regulate sports betting is a prime example of what happens when the people who are required to enforce a law are prohibited from changing that law to reflect new circumstances or evolving public opinion.
More:
http://www.scotusblog.com/2017/08/symposium-lift-harmful-failing-federal-ban-sports-betting/
