Supporters of legalized sports betting got a boost this week when the U.S. Supreme Court announced it will consider New Jersey’s appeal to a federal ban on such wagering.
The issue obviously has major ramifications for Nevada and its dominant industry. But the outcome has implications that extend far beyond gambling. The case offers the justices a prime opportunity to reaffirm the importance of the 10th Amendment, which reads, “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.”
At issue is the 1992 Professional and Amateur Sports Protection Act, which outlaws betting on professional or amateur athletes. The law carved out an exception for Nevada and a handful of other states that already sanctioned some form of legal sports betting.
Openly defying the law, New Jersey in 2011 moved forward with a proposal to revitalize the state’s moribund casinos and racetracks by allowing patrons to bet on individual sporting events. The plan met fierce opposition from the NCAA and pro sports leagues, leading to a court challenge.
Last year, the 3rd U.S. Circuit Court of Appeals, ruling en banc, found that the 25-year-old statute passed constitutional muster and upheld the prohibition. The decision, however, was a mish-mash of confused rationalizations minimizing state autonomy under the Bill of Rights — which is perhaps why the high court opted to step in.
In dissent, 3rd Circuit Judge Thomas J. Vanaskie, an Obama appointee, noted that, “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 [law] affords the states some undefined options when it comes to sports wagering.”
The case highlights an interesting and evolving dynamic.
As a check on federal power, the high court’s conservative or libertarian-oriented justices — particularly Clarence Thomas — have previously been sympathetic to arguments that the national government mustn’t “commandeer” states to achieve its desired ends. But the liberal justices, with their faith in big government, have long been more prone to accept the expansion of Washington’s hegemony. Since the election of Donald Trump, however, progressives have discovered a newfound allegiance to federalism on a host of issues, including sanctuary cities and legalized marijuana.
When the justices hear the New Jersey case this fall or in early 2018, they won’t be interested in debates over the economic benefits or moral pitfalls of sports betting. At issue will be whether it is consistent with the 10th Amendment for Congress to usurp the powers of the states by preventing them from legislating, within constitutional parameters, as they see fit on an issue that the Constitution doesn’t expressly reserve as the federal government’s domain.
A victory for sports betting proponents would also be a win for those who oppose the ever-expanding power of the Washington behemoth.