WASHINGTON (CN) – Forecasting a new era of sanctioned sports gambling, the justices of the U.S. Supreme Court were critical Monday of federal intrusion of Congress into state lawmaking.
“The subject matter of this law is the state,” Justice Stephen Breyer said, referring to the Professional and Amateur Sports Protection Act. “That’s what this is about, telling states what to do, and therefore, it falls within commandeering.”
When Congress passed a ban on sports gambling in 1992, four states that already had forms of legal sports gambling at the time were given grandfather protections.
Other states that wanted the same protection had one year to pass similar laws, but New Jersey lawmakers failed in 1993 to bring their referendum legalizing sports betting to the floor of the state assembly.
The better part of the last decade has seen a number a legal maneuvers by the Garden State to get around PASPA. Its latest attempt in 2014 was a statewide repeal of all gambling prohibitions.
The Third Circuit ruled against the scheme last year, however, prompting intervention by the Supreme Court.
New Jersey Gov. Chris Christie, who won admission to the high court bar for the occasion, said at oral arguments this morning that the case extends well beyond the Garden State’s borders. Eighteen states joined together to file a friend of the court brief supporting New Jersey at the Supreme Court.
“This is the fear of every governor, that we’ll be at the mercy of the federal government and that they’ll make us pay for it,” Christie told reporters at the hearing after the argument.
Gibson Dunn & Crutcher attorney Theodore Olson presented the state’s arguments this morning to the bench, saying that Congress is forcing New Jersey to adopt a law 64 percent of its voters specifically asked be repealed, Olson said.
“New Jersey is being told it may not regulate in the way it chooses,” Olson said.
Olson also said that the intrusion by Congress into state lawmaking makes voters uncertain who to blame for laws they dislike.
“We’re telling states that you may not participate in regulating commerce that is taking place in your state,” Olson said of Congress. “We don’t want to take any responsibility. We want to put the burden and expense and accountability all on the states to do so.”
Justice Sonia Sotomayor appeared to ruffle the attorney with her point that New Jersey could just decide not to enforce the gambling laws on its books.
Though Olson said such an arrangement would be “very, very strange,” Sotomayor countered that states regularly relax enforcement of their own laws.
“Mr. Olson, if every government enforced every law on the book, then the state would be more than bankrupt,” Sotomayor said. “It would have no way of surviving.”
With various states joining forces with New Jersey, the United States has sided with the sports leagues defending PASPA.
Deputy Solicitor General Jeffrey Wall said the state’s error was in repealing the law so that only casinos and racetracks could take bets on sporting events.
Chief Justice John Roberts questioned whether the law truly gave New Jersey an alternative course of action.
“Well, but when you put the state in a position that that’s the only thing they can do, that’s not a real choice,” Roberts said.
Arguing on behalf of the leagues, Kirkland and Ellis attorney Paul Clement said PASPA is a federalist-minded law because it gives states a measure of control over their gambling rules.
But Justice Elena Kagan struggled to see the distinction.
“So what’s the difference between saying you must pass a certain piece of legislation and saying you must maintain a piece of legislation on the books?” Kagan asked.