Draft bill has powerful foes
The draft bill written by retiring U.S. Senator Orrin Hatch that would impose federal regulations on sports betting is likely to fail on the same constitutional grounds that led the U.S. Supreme Court to strike down the 1992 Professional and Amateur Sports Protection Act last May, according to constitutional law experts.
Mark Edelman, a professor at New York’s Baruch College, told the USBets website last week that the commandeering issues cited by the court in striking down PASPA—the principle that the federal government cannot require states to allow or prohibit certain activities—also applies to the Hatch bill. The draft by Hatch, one of the co-sponsors of the original PASPA law banning sports betting, would require states to gain approval of the Office of the U.S. Attorney General to implement any sports betting law.
“The new proposed bill could give rise to the very same commandeering issues,” Edelman told USBets. “In essence, the Supreme Court decision to strike down PASPA was not one based on public policy toward gambling, but rather one that found the law unconstitutional because the federal statute required states to maintain their anti-gambling laws on the books.
“The new proposed law, at least as explained, is nearly identical — with the exception for scenarios in which the federal government specifically likes the new (state) law. Indeed, the gravamen of the new proposed law is very much the same in terms of the federal government usurping the states’ independent authority.”
Fort Lauderdale, Florida-based gaming law attorney Daniel Wallach disagrees.
“By setting forth federal standards for the state regulation of sports betting, the draft bill from Senator Hatch avoids the commandeering problem,” Wallach told the news site. “For example, states must adhere to federal standards when implementing food stamp programs.”
Wallach cited the 2000 case Reno v. Condon, where a court concluded, “That a state wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.”
“The USAG veto power over state sports betting legislation in the Hatch bill is not an unfettered right,” Wallach said. “The AG must approve the application unless the AG determines that the proposed state sports wagering program does not meet the standards set forth in section 103.
“In other words, it is simply a mandate that state sports betting laws comply with federal standards. It is not a commandeering defect. Remember, (the Supreme Court) said that feds are free to regulate, but if they don’t, they can’t stop states from doing so. But, here, feds would regulate. The USAG approval process in the federal sports betting bill resembles the approval process in the federal Food Stamp Act, where the Secretary of Agriculture sets forth uniform national standards and no state plan can be approved unless it meets those standards.”
Edelman, however, insisted that the Hatch law violates the 10th Amendment of the U.S. Constitution.
“The 10th Amendment is complex, and there’s limited case law,” Edelman said, referring to the specific amendment that upended PASPA. “Requiring a federal official to approve a state plan before implemented might still be seen as commandeering.”
The draft bill from Hatch is not likely to get far. Senator Chuck Grassley, chairman of the Senate Judiciary Committee, spoke out against PASPA in 1992, and could bury the bill in his committee.
The bill has other foes in Congress. “This draft bill raises serious questions about the treatment of states like Nevada that already successfully regulate sports betting,” Rep. Dina Titus, D-Las Vegas, told CDC Gaming Reports. “The Supreme Court’s decision overturning PASPA was not an invitation for the federal government to repress states that have led the way. I’ll continue to fight for Nevada’s best interests in these discussions.”
The American Gaming Association, which supported New Jersey’s years-long court battle to legalize sports betting, also opposes the federal government stepping into the mix.
“Since the Supreme Court’s ruling in May, the American Gaming Association has consistently maintained that federal legislation regarding sports betting is not necessary,” said Chris Cylke, AGA’s vice president of government relations, in an interview with CDC Gaming Reports. “That underlying position remains unchanged. At the same time, we remain committed to maintaining an open and constructive dialogue with policymakers considering sports betting legislation at any level of government.”
