For the better part of a century, progressives and their allies on the federal bench have willfully sought to incapacitate the 10th Amendment in an effort to vastly expand and empower the administrative state. But after decades of neglect and abuse, the provision is finally showing encouraging signs of recovery.
On Monday, the U.S. Supreme Court tossed out the federal ban on sports betting. In a 6-3 ruling — three of the court’s liberals dissented — the justices held that Congress exceeded its authority by passing the statute, which amounted to an unconstitutional “commandeering” of state power.
The ruling was not unexpected — queries from the justices during oral arguments in December foreshadowed the result. As many as 20 states are now reportedly ready to join Nevada in offering legalized sports wagering. Nevada interests are particularly well-poised to take advantage of the many new potential markets.
Meanwhile, expect Congress to eventually take up the issue of imposing a national regulatory structure on the industry. Professional sports leagues are hinting they’ll demand a cut of the handle as a sort of “royalty” for “allowing” consenting adults to potentially profit off their games. Whether that comes to pass remains to be seen, but any such arrangement would almost certainly cause the house — already operating on a thin margin — to further tighten odds to make up for the lost revenue.
But it’s important to note that this case encompassed more than sports betting. The 10th Amendment succinctly states, “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.” The provision was intended to impose certain constitutional limits on federal authority, but it had been essentially ignored since the New Deal, leading the national government to swell to the point that no aspect of American life is too mundane to escape the regulatory state’s scrutiny.
Perhaps that trend may finally be slowing.
Writing for the majority, Justice Samuel Alito noted, “The legislative powers granted to Congress are sizable, but they are not unlimited. … The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.” Justice Alito also recognized that the 10th Amendment serves as “one of the Constitution’s structural protections of liberty” and that a “healthy balance of power between the states and the federal government (reduces) the risk of tyranny and abuse from either front.”
Monday was a good day for Nevada gamers and states looking to legalize sports betting. But it was a better day for the 10th Amendment, the Bill of Rights and the U.S. Constitution.