The Issue Is Liberty, Not Gambling
Reasonable people can disagree whether sports gambling should be legal. But everyone who favors individual liberty should agree with the Supreme Court’s 7-2 decision on Monday in Murphy v. NCAA that the Constitution prevents Congress from giving orders to state legislatures.
Cultural mores regarding gambling have changed over the past century, and one of the last remaining taboos is against gambling on sports contests due to the opportunity for corrupting the competition. As more states legalized gambling, Congress in 1992 passed the Professional and Amateur Sports Protection Act (Paspa) that made it illegal for states to authorize, promote or operate sports gambling.
Fast forward two decades. In 2014 New Jersey legalized sports gambling to help Atlantic City casinos and raise revenue. The state plausibly argued that Paspa violated the Constitution’s well-established anti-commandeering principle by regulating the conduct of state legislatures rather than of private individuals. In New York v. U.S. and Printz v. U.S., the Court has held that “the Constitution does not empower Congress to subject state government” to “administer or enforce a federal regulatory program.”
The Justice Department and NCAA, which challenged New Jersey’s law, claimed that there is a difference between conscripting and restraining states. But this is a distinction without a difference, as Justice Samuel Alito explained in the majority’s unequivocal opinion restating the anti-commandeering rule. This doctrine ensures the Constitution’s ordered liberty and promotes political accountability.
“If a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred,” Justice Alito wrote for the majority. Congress may ban or restrict individuals from engaging in sports gambling, but “if it elects not to do so, each State is free to act on its own.”
The Court’s full-throated defense of federalism should be welcome on both the political right and left. The pundit-moralists who claim the Court has legalized sports gambling are ignorant of the law; that policy choice will be made by elected legislators or voters in referenda. It’s amazing how many journalists want judges to be their overlords.
The Court also determined that Paspa’s prohibition on sports gambling advertising can’t be severed from the law. But as Justice Clarence Thomas noted in his pithy concurrence, the Court’s severability analysis requires courts to make “a nebulous inquiry into hypothetical congressional intent.” Although “no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so,” Justice Thomas wrote. Indeed.