NCAA — on Monday. Handicapping the outcome of a US Supreme Court case based only on the oral arguments is, at best, an inexact science. That result, of course, would wipe the Professional and Amateur Sports Protection Act off the books — and PASPA is the one hurdle stopping states outside of Nevada from authorizing and regulating full scale sports betting. But the tone of a Supreme Court oral argument can give some clues as to where the Court might be heading, and it was evident to many at the Dec.
By way of background, the unique feature of PASPA could be what leads to its undoing, as it is a most unusual law. PASPA does not in and of itself prohibit sports betting. It instead prohibits a state from, among other things, licensing or authorizing sports betting by law.
Ordinarily, and as was discussed quite a bit by the Supreme Court, when Congress seeks to regulate conduct, it regulates the conduct of individuals — for example, by making things federal crimes. In other words, if a state is buying or selling a product in commerce, the state is subject to the same federal laws that individuals would be subject to. Finally, there are a whole host of federal programs that seek to induce states to act in certain ways.
But those programs give states a choice — typically, if a state acts in a way Congress wants, the state is entitled to funding. A state could decline funding for a program and instead act in a different manner.
When Congress offers the states funding for education programs, that funding typically requires the state to implement a specific policy. Again, the state could decline and not receive the funding. PASPA is very different from any of these approaches. It clearly regulates the conduct of states in their role as states in that PASPA says that a legislature may not license or authorize sports betting by law. Moreover, in that context, the state is not participating in the market — it is not buying or selling anything, it is regulating.
Both of these topics were examined during the argument. Preemption is the concept that a state cannot pass laws contrary to those passed by Congress. There are two types of preemption: what is known as express preemption and field preemption.
In express preemption, Congress explicitly says that a law it is passing is specifically meant to preempt state laws on the same topic. Hard to read tea leaves but initial impression: a good day for the future of sports betting in New Jersey and perhaps, other states behind them. Looks like a win Senator! I am predicting All men voting, "yes, we want sports betting" — and all women voting "no way!
Most of the hour-long discussion between counsel for NJ, the leagues, the US solicitor general and the nine justices focused on whether PASPA forces states to act on behalf of the federal government. Ted Olson , the lawyer for New Jersey, hammered away at PASPA being an unconstitutional law that commandeers or conscripts states to policesports betting for them. PASPA, he argued, does not ban sports wagering at a federal level, it just tells states what to do.
Again and again, he hammered away at the intent of PASPA, from its very language, prohibits sports wagering only as a function of state law. This is an argument it appeared that many of the justices found compelling, as they questioned Clement along these lines. Near the end, Breyer tried to sum up everything succinctly in questioning deputy solicitor general John Wall :. Have I got that right? The court did not talk about equal sovereignty during oral arguments.
That was the idea that PASPA treats states differently, in that Nevada sports betting and limited forms of wagering in other states are not allowed in others. The fact that attorneys were not questioned on this matter makes it unlikely that the case is resolved on equal sovereignty grounds. That led to this interesting back and forth. Of course, New Jersey has lost at every stop along the way in both district court and the Third Circuit Court of Appeals.
A majority of the court would have to side with New Jersey after it has failed to convinced judges at lower levels. A New Jersey loss would result in the status quo, in which offering single-game wagering remains illegal in 49 our of 50 US states, despite the fact that most Americans can easily place wagers at a variety of offshore sportsbooks, to the tune of hundreds of billions of dollars.
As a result, sports betting may soon become legal in New Jersey and a host of other states preparing to legalize sports betting. He focuses on the sports betting industry and legislation. He's an avid sports bettor himself, mainly on NFL and college basketball contests. He lives in New Jersey with his family. Gambling problem? About Contact. This site contains commercial content. December 4, Share on Facebook Share on Twitter. Share 6 Tweet Share. Given its proximity to New Jersey, it's not surprising that some of the customers head south on game days.
The sports leagues remain opposed, at least in principle, to easing or erasing the federal law's rules. National Basketball Association commissioner Adam Silver has endorsed sports betting , and Major League Baseball has invested in fantasy leagues. While the federal government stands behind the law, the most vocal opposition is coming from an eclectic mix of Christian and Muslim religious groups and others promoting public health and economic justice.
But the number of groups that are backing New Jersey in its quest far outnumbers the other side. Frank Pallone, D-N. To get there, proponents have to convince the justices that the federal law runs afoul of the 10th Amendment, which reserves for the states all powers not delegated to the federal government. To date, federal courts have upheld the law -- even after New Jersey repealed its own prohibition on sports betting in hopes of circumventing a previous negative ruling.
The federal government, it says, cannot force the state to do something against its will. The law prohibits sports betting operations by states and third parties but does not require them to take any affirmative action whatsoever. More: Supreme Court faces blockbuster term -- and Trump. More: Gambling advisory group: End federal ban on sports betting. The navigation could not be loaded.
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