By Brett Smiley
The State of New Jersey now has supporters across the United States — from Arizona to Rhode Island — fiercely backing the New Jersey’s case in the Supreme Court of the United States (SCOTUS) seeking to overturn the federal government’s ban on sports betting outside Nevada. Together they submitted the amicus (Latin for “a friend of the court”) brief this week.
West Virginia and 19 more states Back New Jersey’s Effort to Lift the Federal Ban on Sports Betting
The support of 20 states represents a tremendous increase from just five in West Virginia’s amicus brief (joined by Arizona, Louisiana, Mississippi, Wisconsin) submitted in November 2016, urging SCOTUS to accept New Jersey’s writ of certiorari seeking a review of the Third Circuit’s ruling against New Jersey.
Governors, attorney generals and other officials from the following states are now on board with New Jersey in an argument rooted mainly in federalism, the Tenth Amendment, state sovereignty and political accountability: Arizona, Florida, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Rhode Island, Tennessee, Texas and Utah.
Yes, Utah, which doesn’t even run a state lottery. That underscores the States’ chief concern: more broadly this case — and the 1992 federal law at issue, PASPA (Professional and Amateur Sports Protection Act) — is about federalism, sovereignty and the power of each state to govern its people as the citizens wish. On that point, the amicus brief reads (emphasis added):
While not all of amici States have actively considered or attempted to pass sports wagering laws, nothing in the Third Circuit’s reasoning suggests that its approach would be limited in future cases. Instead, the Third Circuit’s reasoning renders uncertain the extent to which any state electorate may control a State’s broad police powers free from federal interference. If allowed to stand, the Third Circuit’s reading of PASPA could place at the mercy of the federal government state attempts to experiment with their respective—and often uniquely local— approaches to, inter alia, hunting and fishing licenses, lotteries, concealed-carry permits, speed limits, food and drug regulations, and even the days on which alcohol might be sold. The slope is indeed slippery and, given the threat to liberty that drove the Framers to enact the Tenth Amendment, the Third Circuit’s interpretation of PASPA cannot stand.
The States add that they “submit this brief in support of Petitioners because PASPA impermissibly skews the federal-state balance. Amici States take no position on the wisdom of sports wagering, nor would all amici likely legalize sports betting even if permitted.”
More interesting and compelling sections from the brief:
The States channel Shakespeare and Greek playwright Sophocles to make a point about political accountability.
They argue that by allowing the federal government to dictate state policy, state officials get blamed and punished by citizens for policy that doesn’t reflect the people’s will or preferences. As in the case of New Jersey, the people voted in favor of sports betting. The States write here:
History has recognized the human inclination to “shoot the messenger.” Sophocles wrote in Antigone that “[n]o one likes the bringer of bad news.” Sophocles, Antigone … Shakespeare wrote in Antony and Cleopatra that “[t]he nature of bad news infects the teller.” William Shakespeare, Antony and Cleopatra (c. 1606), reprinted in The Unabridged William Shakespeare 1135 (William George Clark & William Aldis Wright eds. 1989). English law historically punished as traitors those who would take out their frustration on the town criers who reported the King’s news.
The States also reference the Declaration of Independence:
The principle that the people have the right to determine and alter the character of their government finds it most famous expression in the second paragraph of the Declaration of Independence, which proclaims that governments “deriv[e] their just Powers from the Consent of the Governed.” The Declaration of Independence para. 2 (U.S. 1776). And this principle even transcended the Federalist/AntiFederalist divide. James Madison repeatedly cited the people’s “supreme” or “ultimate” authority in his contributions to the Federalist Papers and explained that all governmental power derived from and was responsible to its citizens.
The States echo New Jersey’s “anti-commandeering” argument (discussed here) and the technicalities of the Constitution, which, they argue, doesn’t allow laws like PASPA where the federal government doesn’t provide a regulatory framework for a law. The States continue:
[T]he New Jersey Legislature, which had historically prohibited sports wagering, sought out ways in 2010 to financially bolster its struggling casinos and racetracks. Public hearings ensued, which convinced state lawmakers that sports wagering might provide a necessary boost to New Jersey’s gaming establishments. For that reason, the New Jersey Legislature provided its citizenry, via a 2011 constitutional referendum, the chance to decide whether the economic benefits of sports gaming outweighed the perceived drawbacks. Sixty-four percent of those who voted decided that the benefits of sports gaming carried the day.
“.. New Jersey took action comfortably within the rights and powers reserved to it under the Tenth Amendment. The Third Circuit’s construction of PASPA, which (as discussed above) is unmoored from the principles underlying federal preemption, denied New Jersey its right to do so. And in so doing, the Third Circuit handcuffed New Jersey’s citizenry by freezing in time prohibitions that no longer make sense to it.
Meanwhile, 15 states, including some signatories to this brief, have legislation pending that would allow for sports betting, or at least laying the groundwork for it, or have publicly advocated for it or attempted to pass measures to the same effect. But as evidenced by Utah, the States see that there is much more at stake here.
Respondents — the NCAA, NFL and other major professional sports leagues — have until October 16 to file their brief on the merits.