On May 14, 2018, the Supreme Court’s 6–3 decision in Murphey v. National Collegiate Athletic Assn. struck down the Professional and Amateur Sports Protection Act (PASPA). Passed in 1992, PASPA prohibited all states except four from sponsoring, operating, advertising, or authorizing sports wagering but did not make sports gambling a federal crime. The NCAA and three other professional sports leagues brought an action in federal court against New Jersey Governor Chris Christie and other state officials seeking to enjoin a law the state passed in 2012 that legalized gambling schemes in Atlantic City and horseracing tracks. Governor Christie argued that PASPA was unconstitutional because it violated the anti-commandeering doctrine. This doctrine prevents Congress from telling the states which policies and laws to implement.
The Court agreed with New Jersey’s argument. Justice Alito, writing for the majority, reasoned that the act “commandeered” the states’ lawmaking authority by telling them how to regulate their own citizens which violated principles of dual sovereignty. The Court stated that Congress can regulate sports gambling directly, but if it does not do so, the states are free to act on their own. The Court concluded that PASPA puts the state legislatures under Congress’ direct control, as if federal officers were placed in the state legislature “armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”
This decision reaffirms the Court’s decisions in New York v. United States and Printz v. United States and defines commandeering to include not when Congress affirmatively commands enacting laws, but also when Congress orders non-affirmative acts. Since PASPA was struck down, many states are expected to pass gambling laws over the next few years.
Brittany Levine is with Austin Law Firm in Raleigh, North Carolina.