On Monday the United States Supreme Court ruled that gambling on Sports in the United States is not prohibited. Well, that’s not exactly true.  What the court said was that a law prohibiting state legislators from enacting legal frameworks for placing bets on sports was itself unconstitutional.  The result is that as of now, any state can join Nevada and offer legal sports betting.

The Professional and Amateur Sports Protection Act (PASPA) passed in 1992 was an attempt to make sports gambling largely illegal.  As the opinion states:

PASPA does not make sports gambling itself a federal crime. Instead, it allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations.

The law carved out a few exceptions, for Nevada, for some lotteries, and for New Jersey, as a state that had casino operations for over ten years prior to its passage.  Under the law, New Jersey could have permitted such wagering if they passed a law allowing and regulating sports-betting within a year of PASPA’s passage.  They did not.  Until 2012.  That’s when then-governor Chris Christie signed a new law permitting sports gambling.  This case rises from that attempt by New Jersey to allow gambling and attempts to frustrate that via the federal PASPA law by the NCAA and others.

In a 6 to 5 decision, the Supreme Court ruled that the PAPSA law violated what’s called the anticommandeering principle that is forbidden by the Tenth Amendment.  Ruling in favor of the Garden State, which spent seven years and nine million dollars fighting the law. The Court ruled that Congress is not allowed simply to commandeer state governments and that they did so here.  Congress may pass laws that supersede state laws, but they cannot control what state legislators themselves do about their laws.  That is what the Court ruled the federal government did with PAPSA, holding the law was an impermissible commandeering of the New Jersey legislative process.

Justices Alito, Roberts, Kennedy, Thomas, Kagan, and Gorsuch joined in ruling for New Jersey.  Justice Breyer concurred in part and dissented in part, while Justice Ginsburg dissented, joined by Sotomayor.  Their dissent challenged one aspect of the majority decision, the decision to strike the entire law down, rather than rule that some provisions which do not commandeer, stay valid.

Justice Thomas wrote separately to discuss this issue of severability.  Severability concerns how the Court treats the rest of a statute when at least some of it has been declared unconstitutional.  Thomas would have the whole law stricken down, as was consistent with legal principles long followed in the country.  The modern trend, however, is for judges to become draftsmen, and construct laws from the remains of the legal rulings.  Thomas said:

Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make “a nebulous inquiry into hypothetical congressional intent.”

Justice Ginsburg’s dissent was a screed for severability and against the decision not to carve out of PASPA what the court might find constitutionally offensive, and leave the rest, stating:

I therefore dissent from the Court’s determination to destroy PASPA rather than salvage the statute.

Absent some new federal prohibitions; states are now able to permit these bets.  In 2014, writing for the New York Times, NBA Commissioner Adam Silver estimated the U.S. underground sports betting economy at 400 Billion dollars.  For some perspective, that’s about four times the size of the U.S. car market.  How much of that underground market will raise its head above board remains to be seen.  Las Vegas sportsbooks are sure to feel a major loss though, as are all those who earn their livings making book where it’s now illegal and where that will change.


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Scott D. Cosenza, Esq.

Scott D. Cosenza, Esq. is Legal Affairs Editor of Liberty Nation. Scott writes extensively on legal issues and is the Policy Director for One Generation Away.

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