What were the odds? They turned out to be 6:3 in favor of allowing states to determine if they want legalized online gambling in their state, and the revenue that flows from it. Writing for the six-person majority in Murphy v NCAA/ NJTHA v NCAA, Justice Samuel Alito called the federal Professional and Amateur Sports Protection Act passed in 1992 “a direct affront to state sovereignty”:
The U.S. Supreme Court acted Monday to bust Nevada’s monopoly on legal sports betting, allowing more states to get in on the action and reap the tax benefits.
The court, in a 6-3 ruling, struck down a federal law that required states to ban gambling on the outcome of sporting events. The Professional and Amateur Sports Protection Act was highly unusual: It did not ban sports gambling nationwide as a matter of federal law, but it said the states were not allowed to permit it. (Nevada was grandfathered in when the law was passed in 1992.) …
New Jersey and then-Gov. Chris Christie challenged the federal ban, arguing that it violated the Tenth Amendment, which the Supreme Court has said prohibits federal laws that compel states to carry out federal dictates. The gambling law, Christie said, commandeered the states by forcing them to prohibit sports wagering.
Alito and the majority ruled that PASPA violated the “anticommandeering” principle, which recognizes that Congress has no role in dictating to state legislatures what laws to pass or not to pass. The four conservative justices all voted to overturn PASPA and were joined by centrist Anthony Kennedy and liberal Elana Kagan. Alito writes that while this may sound like an arcane issue, it goes to the heart of constitutional limitations on the federal government and the sovereignty of states to govern themselves:
The Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty. See, e.g., Art. I, §10. Some grants of power to the Federal Government have been held to impose implicit restrictions on the States. …
And the Constitution indirectly restricts the States by granting certain legislative powers to Congress, see Art. I, §8, while providing in the Supremacy Clause that federal law is the “supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” Art. VI, cl. 2. This means that when federal and state law conflict, federal law prevails and state law is preempted.
The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.
Alito provides a rare, although not unprecedented, defense of the Tenth Amendment. The wonder here may be that both Kagan and Breyer signed onto it. After establishing the principle, Alito explains that PASPA stepped all over it:
The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.
Neither respondents nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter. …
This distinction is empty. It was a matter of happenstance that the laws challenged in New York and Printz commanded “affirmative” action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.
Here is an illustration. PASPA includes an exemption for States that permitted sports betting at the time of enactment, §3704, but suppose Congress did not adopt such an exemption. Suppose Congress ordered States with legalized sports betting to take the affirmative step of criminalizing that activity and ordered the remaining States to retain their laws prohibiting sports betting. There is no good reason why the former would intrude more deeply on state sovereignty than the latter.
This decision nearly went 7-2 rather than 6-3, except for the decision to strike down the whole law. Stephen Breyer concurred on nearly all of the majority argument, but took exception to the majority decision on severability. The majority ruled that Congress would not have passed PASPA shorn of its core elements found unconstitutional in this instance, striking down the whole measure instead.
Why would Congress enact both these provisions? The obvious answer is that Congress wanted to “keep sports gambling from spreading.” S. Rep. No. 102–248, pp. 4–6 (1991). It feared that widespread sports gambling would “threate[n] to change the nature of sporting events from wholesome entertainment for all ages to devices for gambling.” Id., at 4. And it may have preferred that state authorities enforce state law forbidding sports gambling than require federal authorities to bring civil suits to enforce federal law forbidding about the same thing. Alternatively, Congress might have seen subsection (2) as a backup, called into play if subsection (1)’s requirements, directed to the States, turned out to be unconstitutional— which, of course, is just what has happened. Neither of these objectives is unreasonable.
So read, the two subsections both forbid sports gambling but §3702(2) applies federal policy directly to individuals while the challenged part of §3702(1) forces the States to prohibit sports gambling schemes (thereby shifting the burden of enforcing federal regulatory policy from the Federal Government to state governments). Section 3702(2), addressed to individuals, standing alone seeks to achieve Congress’ objective of halting the spread of sports gambling schemes by “regulat[ing] interstate commerce directly.” New York v. United States, 505 U. S. 144, 166 (1992). But the challenged part of subsection (1) seeks the same end indirectly by “regulat[ing] state governments’ regulation of interstate commerce.” Ibid. And it does so by addressing the States (not individuals) directly and telling state legislatures what laws they must (or cannot) enact. Under our precedent, the first provision (directly and unconditionally telling States what laws they must enact) is unconstitutional, but the second (directly telling individuals what they cannot do) is not.
Clarence Thomas also took issue with the court’s approach to severability, although he grudgingly agreed with its conclusion. Thomas worried that the court has made too much of a habit of transgressing on legislative jurisdiction:
Because PASPA is at least partially unconstitutional, our precedents instruct us to determine “which portions of the . . . statute we must sever and excise.” United States v. Booker, 543 U. S. 220, 258 (2005) (emphasis deleted). The Court must make this severability determination by asking a counterfactual question: “‘Would Congress still have passed’ the valid sections ‘had it known’ about the constitutional invalidity of the other portions of the statute?” Id., at 246 (quoting Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plurality opinion)). I join the Court’s opinion because it gives the best answer it can to this question, and no party has asked us to apply a different test. But in a future case, we should take another look at our severability precedents.
Those precedents appear to be in tension with traditional limits on judicial authority. Early American courts did not have a severability doctrine. … As Chief Justice Marshall famously explained, “[i]t is emphatically the province and duty of the judicial department to say what the law is” because “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If a plaintiff relies on a statute but a defendant argues that the statute conflicts with the Constitution, then courts must resolve that dispute and, if they agree with the defendant, follow the higher law of the Constitution. See id., at 177–178; The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Thus, when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them. See Walsh 755–766. “[T]here was no ‘next step’ in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder.” Id., at 777.
Despite this historical practice, the Court’s modern cases treat the severability doctrine as a “remedy” for constitutional violations and ask which provisions of the statute must be “excised.” See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006); Booker, supra, at 245; Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 686 (1987). This language cannot be taken literally. Invalidating a statute is not a “remedy,” like an injunction, a declaration, or damages. See Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 82–88 (2014) (Harrison). Remedies “operate with respect to specific parties,” not “on legal rules in the abstract.”
At any rate, PASPA has been entirely struck down. New Jersey already passed a law allowing online sports gambling, and more states seem likely to follow suit. Will Congress take up another effort to pass another version of PASPA that will fit within the parameters laid out in Murphy v NCAA? It doesn’t seem likely in this more libertarian age, and it’s not at all clear whether the portions that Breyer, Ginsburg, and Sotomayor wanted left in place would have had much impact on the effort anyway. The lure of gambling schemes in the form of lotteries has long bewitched states, and sports gambling tax revenue would make for another way to capture income that’s currently being lost under the table now.
And yet ….
GOP Sen. Orrin Hatch (Utah) said on Monday that he will introduce new sports gambling legislation after the Supreme Court struck down a federal law that banned sports betting in almost every state.
“At stake here is the very integrity of sports. That’s why I plan to introduce legislation in the coming weeks to help protect honesty and principle in the athletic arena,” Hatch said in a statement. …
He added on Monday that “problems posed by sports betting are much the same as they were 25 years ago,” when PASPA was originally passed.
“But the rapid rise of the Internet means that sports betting across state lines is now just a click away. We cannot allow this practice to proliferate amid uneven enforcement and a patchwork race to the regulatory bottom,” Hatch said.
Worth noting: Hatch retires at the end of the year, and this is not likely to get a floor vote soon. Will Mitt Romney pick up this mantle? Don’t bet on it.