The State of New Jersey on Wednesday and its co-petitioner in the Supreme Court Sports Betting Case (Christie v NCAA), the New Jersey Thoroughbred Horsemen’s Association (NJTHA), filed reply briefs in which they vigorously countered the arguments that respondents set forth in their briefs on the merits in October.
In a nutshell, New Jersey and the NJTHA (collectively βPetitionersβ) artfully attacked the NCAA, NFL and other major professional sports leagues’ arguments (the βLeaguesβ) that the 1992 federal law known as PASPA (Professional and Amatuer Sports Protection Act), which effectively bans sports betting outside Nevada, is both constitutional and necessary to protect the leagues.
New Jersey Hits Back Against the Leagues In Supreme Court Sports Betting Case (Christie v NCAA) In Last Chance to Frame Arguments Before Oral Arguments
In 2014, New Jersey passed a law (sponsored by state Senator Raymond Lesniak) that repealed gambling laws to the extent they apply to Atlantic City casinos or racetracks in the state. Petitioners used the reply briefs to go back to their main arguments that PASPA usurps statesβ rights in violation of the Tenth Amendment. They reiterate that the law is fundamentally flawed because it Β βcommandeersβ New Jersey to enforce a federal policy.
Keep in mind here that because the Solicitor General (the βSG,β who acts as the attorney for the United States in Supreme Court cases) filed a brief in support of PASPA, Petitioners also responded to SGβs arguments as well as the Leaguesβ. Below, we take a look at New Jersey and the NJTHAβs briefs and highlight some key points and entertaining bits in greater detail.
Brief for New Jersey by Ted Olson, Counsel of Record
Ted Olson is a smart guy, to put it mildly, and heβs battled with the NFL before when he represented the National Football League Players Association in the 2011 lockout litigation.
Olsen hammers home New Jerseyβs position that PASPA commandeers the state and violates principles of federalism (citations omitted):
And the Leagues acknowledge that as a result of the lower courtsβ injunction, the state-law prohibitions that New Jerseyβs Legislature has chosen to repeal must βnow remain in force.β That should be the end of the case, because the Commerce Clause does not βconfer upon Congress the ability to require the States to govern according to Congressβ instructions.β But that is precisely what PASPA does. It dictates the contents of New Jerseyβs laws by conscripting New Jerseyβs Executiveβas if he were a βpuppet of a ventriloquist Congress,β to keep βin forceβ statutory prohibitions on sports wagering that the Stateβs Legislature has repealed.
New Jersey writes that PASPA lacks a regulatory framework regarding sports betting, arguing that such absence renders PASPA invalid under the Constitution (emphasis added):
However broad congressional power may be under the Commerce Clause, it is subject to the Tenth Amendment, which establishes that federal laws that commandeer state regulatory authority are not valid exercises of that power. The Leaguesβ categorical argument that federal laws phrased as Commerce Clause prohibitions never commandeer is refuted by this Courtβs anti-commandeering cases and the rationales underlying them. Indeed, PASPAβs prohibition on State regulatory activityβlicensing and authorization by lawβcannot preempt because no comprehensive federal regulatory scheme governs sports wagering. PASPA simply directs States to exercise their police power to enact, maintain, and enforce federal prohibitions on private activity. Congress is not allowed to do that.
One constant point of disagreement is PASPAβs mode of operation. The Leagues say that PASPA requires states to βdo nothing,” and therefore that itβs not an affirmative command,Β and so itβs kosher. But New Jersey says that thereβs no difference between an affirmative law telling a state to do nothing and one that prohibits it from doing something; here, prohibiting the state from (partially) repealing its own laws regarding sports betting.
The βprohibition/command dichotomyβ also immediately collapses in application. Just as a prohibition against exhaling is a requirement to hold your breath, and a prohibition against sleeping is a command to stay awake, a prohibition against repealing a law is an unconstitutional requirement βto maintainβ that law.
In the Leaguesβ brief in October, they spent a large amount of space discussing the βseverabilityβ of one of PASPAβs clause (meaning the clause could survive and PASPA could stand). The counter point:
NJ's "no severability" argument in a nutshell – pic.twitter.com/g6C8GlPxsI
— Ryan M. Rodenberg (@SportsLawProf) November 16, 2017
The Leagues argued that the clause could stand alone and basically allow PASPA to function in the same way without it. But New Jersey used a wardrobe analogy to explain why that interpretation doesnβt work:
Further, Congress would not have enacted Section 3702(2) without Section 3702(1)βs ban on state licensing and authorization by law. The two sections are textually linked: Section 3702(1) prohibits sports wagering from being βauthorize[d] by law,β and Section 3702(2) refers back to that βlaw.β And the United States acknowledges that Section 3702(2)βs purpose is to βnullifyβ state laws prohibited by Section 3702(1). U.S. Br. 15.
If Section 3702(2) is a βbeltβ to Section 3702(1)βs βsuspenders,β Leagues Br. 56, then the trousers are Congressβs unconstitutional βfederal policyβ of prohibiting States from legalizing sports wagering under their own laws.
If youβre visual person, please refer to actor John Lithgowβs outfit here to interpret:
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Brief For NJTHA by Ronald J. Riccio, Counsel of Record
The NJTHA brief drives home Tenth Amendment and federalism arguments as well, arguing that the Leagues go to great lengths to portray PASPA as constitutional (note: For some reason the brief is no longer available on the Supreme Courtβs website for some reason, so passages appearing below come from a version of the brief accessed on Wednesday around 4:00 pm. ET, which I printed out).
After referencing Zoolander in the opening brief, Riccio goes to the holy bible (in a footnote) to make a point here about an affirmative command versus a prohibition dispute:
Riccio also uses a colorful analogy to demonstrate why PASPA does not constitute the kind of βpreemptionβ that the Constitution allows via legislation regulating private conduct. The argument is basically that the Leagues are conflating commercial conduct of citizens with conduct of the State.
The passage begins, βA private party does not conduct business ‘in the statesβ stead,’ or as the Stateβs ‘agent,’ simply because there are a limited number of locations where its business is permitted. An extreme example demonstrates the point”:
In new SCOTUS Reply Brief, NJTHA cites NCAA v. Tarkanian case and adds a new hypothetical. pic.twitter.com/A84wbo1XFd
— Ryan M. Rodenberg (@SportsLawProf) November 15, 2017
Riccio then drops a Peopleβs Elbow:
[The Leagues] and the United States wish they could rewrite PASPA so that it worked like an ordinary federal state statute with a preemptive effect, and said something like, βAny provision in state law to the contrary notwithstanding, it shall be unlawful for any person to operate a sports-gambling scheme.β That wished-for statute is not what Congress enacted in PASPA. Even now, after five years of litigation up and down the federal judiciary, no one has identified a single other statute that works the peculiar way PASPA does.β
Up Next: Oral Arguments
Oral arguments will take place on Monday, December 4. SportsHandle will be there to bring a blow-by-blow (once I recover my cell phone from the locker). Β
Notably the Solicitor General will be participating in those arguments with 10 minutes allotted for the SG. Next week we will have expert analysis on the impact of the SGβs participation, how it might affect League attorney Paul Clementβs points, and the logistics in general.
Stay tuned!
Also check out from SportsHandle:
New Jersey Senator Ray Lesniak Sees Finish Line, Irony And Shame in Supreme Court Betting Case
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