Former US Solicitor General Ted Olson will argue on behalf of New Jersey before the Supreme Court on Monday.
Oral arguments in New Jersey’s sports betting case before the U.S. Supreme Court begin on Monday. The case (“Christie v. NCAA”) pits lawyers for the State of New Jersey and the New Jersey Thoroughbred Horsemen’s Association (NJTHA) against lawyers of the major American sports leagues.
The Supreme Court case will determine the constitutionality of a federal ban on sports betting called the “Professional and Amateur Sports Protection Act 1992”, usually called PASPA. Since it went into effect in 1993, PASPA has banned sports betting in 46 US states, while allowing sportsbooks in Nevada and sports lotteries in 3 other states: Delaware, Montana, and Oregon.
For the past 5 years, the State of New Jersey has challenged PASPA by trying to legalize sportsbooks in the Garden State, hoping to help Monmouth Park and Atlantic City casinos. The NFL, NBA, MLB, NHL, and NCAA sued New Jersey on two occasions, arguing that an end to the federal sports ban would undermine the integrity of their sports in the minds of the American public.
20 US states signed an amicus brief written by the attorney general of West Virginia, stating their support for New Jersey’s case. Those states argue that the PASPA law commandeers their officials to uphold unconstitutional federal laws, while trampling over states rights to craft their own gaming laws.
New Jersey’s Arguments v. PAPSA
Legal analysts say Ted Olson, the lawyer for New Jersey, and Ron Riccio, the lawyer for the NJTHA, plan to argue state’s rights as opposed to the sports betting law. Arcane concepts like the Anti-commandeering Doctrine, the Equal Sovereignty doctrine, and the Non-delegation doctrine are going to be cited and defended by lawyers on both sides before the 9 Supreme Court justices. The justices will take months to reach a decision.
The U.S. Supreme Court has an 80% overturn rate, leading many to believe the SCOTUS eventually will side with New Jersey over the sports leagues. The vast majority of cases referred to the Supreme Court never receive a hearing, so those that pique the interest of the court tend to be momentous. While New Jersey has lost 5 decisions in its 5-year battle against the sports leagues, all it needs is one victory to overturn PASPA. Below are the main legal concepts to be argued on Monday.
The Anti-Commandeering Doctrine
Ted Olson wrote that the PASPA law breaks the Anti-commandeering Doctrine which governs the relationship between the state and federal governments. By forcing states to uphold the federal ban on sports betting, PASPA makes every state a “puppet of a ventriloquist Congress” — essentially an arm of the federal government.
Olson noted that the Commerce Clause of the US Constitution is at stake in the case. The Commerce Clause does not “confer upon Congress the ability to require the States to govern according to Congress’ instructions.”
If the federal government has the right to require states to govern according to the U.S. Congress’s instructions on sports gambling, then it has the right to instruct the states on a hundred similar laws: voting rights, abortion, and gun control are some of the issues which come to mind with civil libertarians.
U.S. Solicitor General Noel Francisco wrote a brief for the US Supreme Court, calling for the SCOTUS to reject New Jersey’s appeal. In the brief, Francisco stated, “New Jersey believes that the state’s economic interest would be best served by authorizing sports gambling at its casinos and racetracks. Whatever the merits of that policy, Congress has placed it off limits in an exercise of its authority to preempt state law in matters covered by the Commerce Clause.”
Usually, the Supreme Court listens to the Solicitor General’s opinion, so it is notable that it chose to hear the case. That implies a significant number of the justices do not agree with Noel Francisco’s opinion on the Commerce Clause.
The Equal Sovereignty Doctrine
Ted Olson and Rib Riccio also plan to argue PASPA undermines “equal footing”. The Equal Sovereignty Doctrine, also known as equal footing, states that all US states are considered equals. The concept goes right back to James Madison’s drafting of the constitution, when he proposed that new members of the United States should be considered equals to the original 13 states.
By giving preference to 4 states on the gambling issue, Ted Olsen is going to argue that the federal government is not giving equal footing to all 50 states.
The Non-Delegation Doctrine
Another point of argument is a clause in the PASPA law violates the Non-delegation Doctrine of the Constitution. The clause allows the sports leagues to get injunctions against states which try to grant sportsbooks legal rights. It effectively subcontracts the job of the U.S. attorney general to private enterprises.
In nearly 25 years, the U.S. Justice Department has never filed an injunction against a state to enforce PASPA. Instead, that job was given to the sports leagues, which was done against the New Jersey attorney general in 2013 and Monmouth Park and the NJ attorney general in 2014. Ted Olsen says the clause has given the NFL and its fellow leagues too much power. Olsen writes, “In this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.”
How Sportsbooks Help Atlantic City
Those who think New Jersey will win the case see sportsbooks as a big boost for Atlantic City. Chris Christie said months ago that Atlantic City and Monmouth Park sportsbooks would be open by summer of 2018, if PASPA is overturned. That would be in time for the next NFL season, which is peak time for American sports bettors.
Of course, New Jersey’s win would be a victory for 45 other states. Mississippi, Connecticut, and Pennsylvania passed laws to let them launch sportsbooks quickly, while New York and Michigan have discussed doing the same. Experts say Atlantic City would have an early advantage, though, due to infrastructure.
Ray Lesniak, the longtime New Jersey state senator and proponent of expanded gambling, recently explained how sports betting would help the Boardwalk in specific. Lesniak said, “Atlantic City’s biggest problem is that most visitors spend only 10 hours there, unlike Vegas where they spend a couple of days. In Vegas, people go for long weeks during the Super Bowl and March Madness. If it’s approved, it will give them a boost.”
Atlantic City Would Have an “Advantageous Position”
Michael Pollock of Spectrum Gaming echoed Lesniak’s sentiments, saying, “If it’s approved, it puts Atlantic City in an advantageous position. They already have the infrastructure in place to support it.”
Lloyd D. Levenson of the Cooper Levenson law firm, which focuses on casino gambling regulations, said that overturning of the PASPA would initiate new regulations in many states. Tribal gaming sportsbooks would be especially problematic, due to sovereignty issues involving tribal reservations and the way gaming compacts are written. Whether tribal casinos or commercial casinos are involved, though, new laws would take time to enact.
Levenson said, “It’s not like they are going to rule on a Monday and we are going to have sports gaming on a Tuesday. There would have to be changes to the current law, and regulations have to be mapped out. It could take up to 60 days.”
