Brief says federal ban usurps states’ rights
Five states and the American Gaming Association are joining in New Jersey’s challenge to the 1992 Professional and Amateur Sports Protection Act (PASPA), the federal law banning sports betting in most of the United States. Attorneys general of West Virginia, Arizona, Louisiana, Mississippi and Wisconsin filed an amicus brief in New Jersey’s appeal of its sports-betting case to the U.S Supreme Court.
The case represents New Jersey’s latest attempt to implement a sports betting law, after the courts threw out previous attempts in the face of PASPA challenges from the National Football League, the NAACP and, originally, other sports leagues. The latest bill would repeal the state’s ban on sports betting to create a state-regulated sports book, without federal government oversight.
The New Jersey Third Circuit Court of Appeals cited PASPA in a lopsided decision last summer striking down the sports-betting law passed by the New Jersey legislature and signed by Governor Chris Christie. In appealing the case to the U.S. Supreme Court, New Jersey contends that PASPA violates states’ rights to implement and repeal their own laws.
The amicus brief filed last week by the five additional states centers on the Third Circuit’s decision:
In upholding the Professional and Amateur Sports Protection Act (“PASPA”) … the Third Circuit radically expanded the doctrine of federal preemption by holding that Congress may forbid the States from repealing their existing laws without affirmatively setting forth a federal regulatory or deregulatory scheme.
In addition, the Third Circuit disregarded this Court’s anti-commandeering jurisprudence by requiring state legislators to maintain, and state executive officials to enforce, laws that would otherwise have been repealed.
The states contend they are not so much concerned about the ability to offer sports betting, saying they “take no position on the wisdom of the state and federal sports wagering laws in this case.” Instead, they are worried about the precedent of the court rulings on PASPA to date:
The concern of Amici States—the States of West Virginia, Arizona, Louisiana, Mississippi, and Wisconsin—is not what Congress regulates but how it does so. Even where it has Article I authority to act, Congress may not force the States to act as the vehicle for implementing federal policy and thereby shift to the States political accountability for its actions. Such coercion is unconstitutional commandeering.
The amicus brief came on the heels of another brief filed by Florida State professor and betting law expert Ryan Rodenberg, who argued that PASPA grants unconstitutional powers to professional sports leagues.
The participation of additional states to New Jersey’s sports-betting appeal does not guarantee its success, or even if the appeal will be heard by the high court. West Virginia and Wisconsin joined the last appeal, which the justices declined to hear.
The AGA’s amicus brief made similar arguments, highlighting what has been its own position for the past two years as the organization lobbies for repeal of PASPA.
“The failed federal ban on sports betting is driving an illegal, underground market of at least $150 billion annually,” says the AGA’s brief, which details how the failed federal ban on sports betting is funding dangerous criminal enterprises and threatening the integrity of sports.
“As President-elect Donald Trump has acknowledged, illegal sports betting is a thriving industry,” said AGA president and CEO Geoff Freeman. “The 24-year-old federal ban—which is breathing life into a $150 billion illegal sports betting market—threatens the integrity of games, presents fundamental questions about states’ sovereignty to define their own laws and combat crime within their borders, and prevents fans from engaging with the sports they enjoy in a safe, legal way. The United States Supreme Court should consider New Jersey’s important claims and allow all states to address the serious problems associated with illegal sports betting.”
Freeman said in a separate statement that the Trump presidency will mark the dawning of a new era in Congress. “The gaming industry is well positioned to thrive in this new environment because of the important steps we have taken over the last several years to unify around issues of common cause, work collaboratively with government officials and highlight our enormous local economic and social contributions to develop Congressional champions,” Freeman said.
Since President George H.W. Bush signed PASPA into law in 1992, trillions of dollars have been bet on sports illegally. Annually, sports fans wager about $150 billion illegally, including $4.1 billion on Super Bowl 50 earlier this year. AGA estimates fans across the country will bet $90 billion on NFL and college football games this season. However, $88 billion—or 98 percent—of all bets will be made illegally thanks to the federal government ban.
Despite the AGA’s best efforts, repealing PAPSA will be no easy task, according to former Washington insider and Republican “super-lobbyist” Jack Abramoff. “I would imagine it’s going to be very difficult for them to do it, Abramoff said in an interview with CDC Gaming Reports. “It’s going to require a tectonic shift to get movement on something like sports betting.
“Being on offense and being on defense are two different things in politics and lobbying,” he explained. “Going on offense is very hard, even if it’s for something that’s not controversial. There are a hundred ways to stop something; there is one way to get it through. Reviving something once it’s gone is almost impossible.”
