Even people who care nothing about sports betting should take notice of the Supreme Court’s decision Monday to strike down a federal law that sought to prohibit states from authorizing sports gambling within their borders. As Justice Alito writes for a seven-member majority in Murphy v. NCAA, the anti-commandeering doctrine at the center of the holding “may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”
With the passage of the Professional and Amateur Sports Protection Act (PASPA), Congress prohibited those states that did not already permit sports gambling from authorizing such conduct. Some years later, New Jersey passed legislation to authorize and regulate sports gambling in an attempt to revitalize its flagging gaming industry. The NCAA and the major sports leagues sued, and New Jersey responded that PASPA violated the anti-commandeering principle inherent in American federalism.
That principle prohibits the federal government from conscripting state legislatures and executive officials in the administration of federal policy. The federal courts, however, found that PASPA was not an impermissible infringement on the sovereignty of the states — they drew a distinction between forcing states to act (by requiring legislatures to put gaming prohibitions in place, say) and forbidding them from acting (as Congress did by passing PASPA and forbidding states from adopting certain laws). While the former was clearly beyond the pale, the latter was found to be sufficiently protective of state sovereignty.
Undaunted, New Jersey responded by repealing its laws prohibiting casinos from taking bets on sports — if it couldn’t “authorize” sports gambling through positive legislation regulating such conduct, surely it could stop prohibiting it. Yet the federal courts found this conduct prohibited by PASPA as well, and the case ultimately made its way to the Supreme Court.
In a year of potential blockbuster cases involving political gerrymandering, technological surveillance, and the limits of religious expression, Murphy v. NCAA did not receive much attention. Despite the fact that it was argued by two of the nation’s preeminent litigators — former Solicitors General Ted Olson for New Jersey and Paul Clement for the leagues — a relatively obscure federal statute and a federalism principle that most lawyers had hoped to forget after the bar exam did not seem to make for legal fireworks.
But the implications of this decision likely will be far-reaching.
The most obvious application will be in the area of marijuana legalization. (Full disclosure, a number of law professors who study marijuana law reform, including myself, were amici in this case.) It is now clear that the federal government cannot prohibit states from implementing marijuana law reform. Just as it cannot force the states to enforce the federal marijuana prohibition, it cannot require them to keep their own prohibitions in place, or force states that have regulated and taxed marijuana to undo such laws.
Of course, the federal government continues to prohibit marijuana and may enforce its own laws even in states with vastly different drug policies, but it is now even more clear that the federal government cannot force this policy on the states.
And the implications will not stop there. Take, for example, immigration. Justice Alito’s opinion cites the court’s 2012 opinion in Arizona v. United States, which found Arizona’s restrictive immigration laws to be preempted by federal immigration policy. Where Congress has created a regulatory regime of its own, as it has with immigration, it can choose to preempt inconsistent state laws on that subject. But that is very different from what happened with regard to sports gambling. There, rather than passing its own sports gaming regulations, Congress required the states to regulate and required them to regulate in a particular way.
The Murphy ruling makes clear that Congress cannot shift the regulatory burden to the states on difficult matters. If there is heat to be taken for the fact that there is no legalized sports gambling outside of Nevada, Congress must make clear exactly whose decision that was.
Of course, the federal government is not powerless here. (It rarely is.) It may regulate in any area authorized by Article I of the Constitution, and if it does so, it may either prohibit the states from regulating in that area or not. Or, it may provide inducements to the states to adopt a particular policy, as it has with health care policy. The Murphy court also endorsed a collaborative approach, one in which the federal government creates a baseline rule and required the states must either adopt that rule or another of their own choosing.
The court thus has given Congress a roadmap for dealing with policies it dislikes in the states. It can do the hard work of setting federal policy, or it can leave things to the states to work out on their own. What it cannot do is mandate how the states do the difficult work of regulation.
