On Monday, the U.S. Supreme Court will take up Christie v. NCAA, a case ostensibly about whether New Jersey may legalize sports betting. In fact, the decision could have far broader ramifications for the relationship between the states and the federal government.
Nevada’s gaming interests are obviously watching this case closely, given that it has the potential to open up myriad markets to legal wagering on athletic contests. But a ruling in favor of New Jersey could also breathe life into the 10th Amendment, which has been comatose for decades.
At issue is the 1992 Professional and Amateur Sports Protection Act, which outlaws betting on professional or amateur athletic events. The law contains an exemption for Nevada, with its full-blown race and sports books, and three other states — Oregon, Delaware and Montana — that offer more limited sports wagering.
In 2012, New Jersey Gov. Chris Christie signed legislation establishing a regulatory structure to allow sports betting in his state. The move — in defiance of the federal law — was an effort to create another potential revenue stream for New Jersey’s struggling casinos and racetracks. When professional sports leagues and the NCAA successfully sued to block the proposal, New Jersey lawmakers in 2014 passed a different version of the law intended to skirt the injunction. The leagues sued again.
While there are a number of interesting aspects to the case — the evolving attitudes toward sports betting, pro leagues softening their adamant opposition to legal wagering, the economic or social consequences of ending the ban — the issue turns primarily on whether Washington may “commandeer” states to achieve its desired policy goals.
For almost a century, progressives and their judicial allies have carefully strangled the 10th Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” — in an effort to abet a massive expansion of the federal government and the regulatory state. But the amendment is now enjoying a sort of renaissance on the left as members of the Trump “resistance” rediscover the virtues of the Bill of Rights while they try to insulate blue states from federal policy on issues such as sanctuary cities and legalized marijuana.
How that dynamic plays with the court’s liberal wing — traditionally a proponent of protecting and expanding federal power — remains to be seen. But the federal appeals court that upheld the sports betting ban in 2016 clearly struggled with the issue. The ruling was a poorly reasoned mess when it came to squaring the prohibition with the 10th Amendment. A dissenting judge wrote, “The bedrock principle of federalism that Congress may not compel the states to require or prohibit certain activities cannot be evaded by the false assertion that the [law] affords the states some undefined options when it comes to sports wagering.”
The Supreme Court’s decision, expected sometime next year, will have long-term implications for Nevada’s dominant industry. But it could also help put the brakes on a federal government that seemingly respects few constitutional restraints on its authority.