WASHINGTON (CN) – Keeping racetracks in suspense about the future of New Jersey sports betting, the U.S. Supreme Court on Tuesday invited the acting U.S. solicitor general to weigh in.
If the justices grant a writ of certiorari, the case could decide the legality of PAPSA, short for the Professional and Amateur Sports Protection Act, a federal law passed by Congress in 1992 as a way to prohibit state-sanctioned sports gambling.
The law exempted several states on the condition that they enact a sports-gambling scheme by the end of 1993, but New Jersey missed that deadline.
Legislative attempts to rectify that have proved unsuccessful – first with the Sports Wagering Law in 2012 and then a repeal of all of the state’s prohibitions on gambling in 2014.
In an unsuccessful appeal, attorney Theodore Olson tried to persuade the Third Circuit that the 2014 law did not sanction sports betting but rather removed certain prohibitions against it. “Lifting a prohibition is not an authorization,” Olson said during the February 2016 hearing, adding that PASPA “either requires states to regulate sports betting or to leave them alone.”
Leading the fight against sports gambling has been the National Collegiate Athletic Association and all four major professional sports associations. They say sports gambling constitutes a commercial activity that impacts interstate commerce.
When the Third Circuit ruled in favor of the sports leagues, 10-2 this past August, the majority saw New Jersey’s 2014 law as an attempt to get around PASPA. U.S. Circuit Judge Majorie Rendell wrote for the court that New Jersey’s law “provides the authorization for conduct that is otherwise clearly and completely legally prohibited.”
In one of two dissenting opinions, U.S. Circuit Judge Julio Fuentes — who also dissented in a previous ruling by the Third Circuit on PASPA— noted that New Jersey voters in 2011 passed a referendum to allow sports betting. Fuentes said that in passing the 2014 law, New Jersey “did what it thought it was permitted to do.”
In the wake of that en banc ruling, a growing contingent of supporters — including West Virginia, Arizona, Louisiana, Mississippi and Wisconsin — have urged the Supreme Court to legalize sports betting.
In their amicus brief supporting certiorari of New Jersey’s PASPA case, the fives states argued that PASPA “blurs the line” between accountability by federal regulators and state governments. “Congress has obscured its own responsibility by forcing state governments to carry out federal policy rather than doing so itself,” the 33-page filing states.
The states painted a bleak picture of “unprecedented” federal overreach in their brief. “If permitted to stand, the Third Circuit’s decision threatens the constitutional balance of power between states and the federal government,” the brief states.
Another factor that could weigh in sports gamblers’ favor is incoming President Donald Trump, a former casino mogul who once lobbied hard for sports gambling in New Jersey.
Trump, who will be sworn into office next week, could sign legislation nullifying PASPA or appoint an attorney general who refused to enforce the statute, thereby obviating the Supreme Court.
Sports gambling has been relatively popular in New Jersey. Some say the basis for the 2014 law was a referendum New Jersey voters approved three years earlier, permitting sports gambling by a margin of 3-2. Previous attempts at referendums to approve sports betting in the state go back at least until 1993.
Attempts elsewhere to legalize sports betting have cropped up. Just last week five New York legislators introduced a bill to amend that state’s laws to allow professional and college sports gambling at horse racetracks, casinos, and off-track betting locations.
That bill follows on the coattails of New Jersey and would likely face the same legal hurdles. Legal experts note that the potential for a circuit split could also force the Supreme Court to hear a case on sports betting later on.
The Supreme Court has only eight justices after the Republican-controlled Senate refused to hold a confirmation hearing on the judge nominated to succeed the late Antonin Scalia. Trump is expected to name his appointee within weeks of his inauguration.
After conferencing Friday on the petition for certiorari, the justices called for the U.S. solicitor general to weigh in Tuesday morning.
It is unclear how the court will act given its current or potential roster.