In 1992, Congress passed a statute authored by then-Sen. Bill Bradley of New Jersey, who was a former Princeton University and New York Knicks basketball superstar, prohibiting the states from authorizing sports betting.
At that time, gambling in Atlantic City was flourishing, and notwithstanding one of its own senators' efforts to keep gambling away from competitive sports, the state of New Jersey wanted to duplicate Las Vegas' success with sports betting.
When Bradley's legislation grandfathered the state of Nevada, legislators in New Jersey came up with an idea to get around the federal legislation that would permit Atlantic City casinos to compete with those in Las Vegas by repealing all laws about sports betting, thereby escaping the federal prohibition on "authorizing" sports betting. It would be up to the casinos to set up their own betting parlors for college and professional sports, and in so doing, they could increase their own bottom lines and thus the state's tax revenues.
When major professional sports leagues and the NCAA challenged this, a federal district court in Newark read the 'thou shalt not authorize' language to mean 'thou shalt not permit under any circumstances.' That ruling was upheld by a federal appeals court in Philadelphia, and New Jersey appealed its case to the U.S. Supreme Court, which ruled in its favor earlier this week.
Get ready to call your bookie.
The Supreme Court decision reinforces the anti-commandeering jurisprudence of the 10th Amendment, which was dormant from the New Deal era to the mid-1990s. Recall that the states formed the federal government, not the other way around. When they did so, they delegated certain areas of governmental authority to the feds, and as new states were added to the Union, they did the same.
The 10th Amendment is the constitutional recognition of the truism that the legislative powers that the states did not delegate to Congress they retained for themselves.
The anti-commandeering jurisprudence prohibits Congress from telling the states how to govern or legislate or spend their tax dollars in any governmental areas not delegated to the Congress. This congressional practice was condemned in a case called Printz v. United States, in which Congress had ordered state law enforcement officials to establish certain gun registration protocols consistent with congressional standards and made state legislatures pay for the enforcement of the protocols.
The Supreme Court, through the late Justice Antonin Scalia, characterized this federal legislation as "commandeering" — taking the discretion away from — state officials and legislatures. The Supreme Court's sports gambling decision this week followed the rationale of the Printz case and characterized the federal legislation that prohibited the states from permitting sports gambling as commandeering their legislative processes.
The reason that federal commandeering of state legislative processes is unconstitutional — Justice Samuel Alito's sports betting opinion likened commandeering to having a federal agent on the floor of each state legislature give a thumbs-up or -down to proposed legislation — is that it flies in the face of the Guarantee Clause of the Constitution.
That clause guarantees a representative form of government in each state. A representative form of government requires that the representatives in the government be free to vote their consciences and not be prohibited or restrained from doing so because of a federal command.
Did Bill Bradley make a mistake?
I am a longtime fan and friend of Sen. Bradley's, notwithstanding our general ideological differences over the constitutional role of government in our lives. Bradley is smart, fair and open-minded, and I miss him in the public forum. Yet he ought to have known that the legislation he authored was unconstitutional, and he ought to have known that Congress could have outlawed sports betting had it chosen to do so.
Had Congress made sports betting criminal — which it has not yet done — the sports gambling case this week would have been moot. Congress undoubtedly has the power under the Commerce Clause to prohibit any item from interstate commerce that it wishes, and it could have done so to communications that further sports betting. But of course, federal laws cost the feds money to enforce, and Congress did not want to foot that bill — hence Bradley's scheme of transferring the cost of preventing sports betting to the states.
If Congress had outlawed sports betting, such a law would not have implicated the anti-commandeering jurisprudence because it would have been a restraint on individual personal behavior and not a restraint on the discretion of state law enforcement or elected state representatives.
What are the unintended consequences of this ruling?
All of this bodes well for the independence of the states in the areas where they are free to govern. There, they can be laboratories of democracy, dependent upon the public sentiment of their voters and the freely exercised consciences of their state representatives.
In an odd couplet, however, it also helps the sanctuary city movement, insofar as that movement purports to require that state and local law enforcement agencies not actively enforce federal immigration laws or policies because compelling them to do so would violate anti-commandeering jurisprudence. The commandeering would consist of removing the discretion of state and local law enforcement as to the disposition of law enforcement resources and the discretion of state legislatures as to how state tax revenue is spent.
And all of this underscores the wisdom of the Framers, who created a federal union that, even after the Civil War, is still subject to the sovereignty of the states. The beauty of the Union is that no two states are alike and we can all get ourselves to states where the laws are more to our liking. Ronald Reagan once whimsically captured these constitutional values when he argued that only in America can you vote with your feet.