‘Standing’ Up for State Rights in Sports Betting

In Gov. Murphy, et al. v. Nat’l Collegiate Athletic Ass’n, et al., the Supreme Court resolved one sports betting-related federalism issue and teed up another. In deciding the constitutionality of the Professional and Amateur Sports Protection Act (“PASPA”), the Supreme Court considered PASPA vis-à-vis the anti-commandeering doctrine embedded in the Tenth Amendment. The Supreme Court’s majority opinion, written by Justice Alito, concluded: “The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anti-commandeering rule.” Justice Alito also foreshadowed the next federalism issue that will likely arise in the sports betting context: “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” Numerous states have accepted the Supreme Court’s invitation since its ruling was released on May 14, 2018. As of April 30, 2020, over a fifteen states have moved to enact sports betting laws, with dozens more considering legislation.

Federal Interference with State and Tribal Sports Betting Regulations Will Not Work: Where the Sports Wagering Integrity Act of 2018 Went Wrong and How Federal Legislation Might Be Effective

On Monday, May 14, 2018, the Supreme Court of the United States struck a fatal blow to the federal Professional and Amateur Sports Protection Act (PASPA) when it determined PASPA violated the Tenth Amendment of the United States Constitution. Prior to the PASPA repeal, Nevada had been the only state in the United States (US) authorized to offer a full complement of legal sports betting options. Because, Nevada’s race books and sports pools have had the ability to offer wagers on sports since 1947, those legal sports betting operations were “grandfathered” into PASPA when it was passed by Congress in 1992. Having anticipated repeal as a possible outcome, four states passed laws making sports betting legal in case the Supreme Court ruled in New Jersey’s favor, and one state pre-emptively legalized sports betting through a ballot measure. With barriers removed by the PASPA repeal, state gambling regulators were able to grant licenses and adopt regulations. State legislatures were also able legalize sports wagering during their upcoming legislative sessions. And they did!

Editor's Note: The Sports Gambling (anti) Federalist Papers

The foundation for this special issue was laid when the U.S. Supreme Court announced on May 14, 2018, that the Professional and Amateur Sports Protection Act (“PASPA”) violated the anti-commandeering principle contained within the Tenth Amendment. The decision in Murphy v. National Collegiate Athletic Association opened the door for states around the country to begin legalizing sports wagering for the first time in more than 25 years. The response to this newfound opportunity has been met with enthusiasm, with more than 15 states passing legislation to legalize sports gambling of various types within their borders in just over two years. The excitement over sports betting has not gone unnoticed by Congress, which, in September 2018, held a hearing titled “Post-PASPA: An Examination of Sports Betting in America.” The hearing sparked debate over what role the federal government should have in a new world where sports betting could be regulated across the country, as opposed to being confined largely to Nevada.

“It Is a Constitution We Are Expounding”

The thirty-odd years from the New Deal turnaround to the late 1960s represented a high-water mark for McCulloch v. Maryland. For the first time, the Supreme Court fully applied McCulloch to the Commerce Clause and the Reconstruction Amendments, and removed the concept of reserved state powers as a barrier to implied powers under these constitutional provisions. The post–New Deal Court recognized Congress’s authority to regulate virtually all aspects of the national economy and to legislate race relations and other issues of civil rights. Prior to 1941, the Court had limited McCulloch’s applicability to the Commerce Clause and the Fourteenth Amendment by subjecting the legislative powers of Congress to implied limitations arising out of the Tenth Amendment doctrine of reserved state powers. With the Tenth Amendment constraint removed, McCulloch for the first time was being applied to something like its full potential.

“The Baneful Influence of this Narrow Construction”

McCulloch v. Maryland and its principles came under attack during the Jacksonian era, and the Supreme Court under John Marshall’s successor, Roger Taney, ignored McCulloch into oblivion and reversed its thrust. The Taney Court prioritized states’ rights over federal power, to protect the constitutional position of slavery. McCulloch and Gibbons v. Ogden had refrained from committing the Court to implied commerce powers, and Gibbons also invited the Taney Court to ignore McCulloch. To the Jacksonian justices of the Taney Court, preservation of slave-state sovereignty—not the power of Congress to act for the benefit of the whole people—was the bedrock principle of the Constitution. Reserved state powers under the Tenth Amendment were sufficient to block implied federal powers. Moreover, states could regulate matters expressly delegated to the United States when conducive to exercising their reserved powers.

The Spirit of the Constitution

McCulloch v. Maryland is widely regarded as the greatest constitutional decision ever issued by the United States Supreme Court. Written in 1819 by Chief Justice John Marshall, the ruling upheld Congress’s constitutional power to create the Second Bank of the United States, recognizing the “implied powers” of Congress and the supremacy of federal over state laws. Modern constitutional scholars believe that McCulloch established the constitutional foundation for the historic expansion of federal authority in the wake of the New Deal. But The Spirit of the Constitution argues that the nationalizing potential of McCulloch has not been fully realized. Rather than establishing broad federal legislative power, McCulloch was virtually ignored for its first fifty years. Even Marshall shrank from the full nationalist reach of his own decision. When the late-nineteenth-century Supreme Court finally recognized McCulloch as a “great case,” the Court cited it more frequently when exercising judicial review to limit the powers of Congress rather than to expand them, striking down federal laws in the name of states’ rights and reserved state powers under the Tenth Amendment. Only briefly in the mid-twentieth century did the Court nearly embrace the full extent of McCulloch’s vision of implied powers, as it upheld broad federal laws regulating the economy and promoting racial equality. McCulloch’s 200-year odyssey, from 1819 to the present day, helps us understand how the “spirit” of the Constitution, and its structure of federalism, have been reinterpreted again and again throughout the eras of U.S. constitutional history.

Tenth Amendment

This paper argues that the Tenth Amendment was a beneficial compromise between the Federalists and the Anti-Federalists, and as a result the Amendment is not a truism, but instead integral to securing state sovereignty and protecting the integrity of federalism. The paper begins by describing the historical context for the inclusion of the Amendment and the framers’ reasoning for its inclusion. The paper continues on to evaluate the Amendment from its conception until present day. The paper refutes the Amendment as a truism, displaying how the Supreme Court has significantly developed the relevance and use of the Amendment through two major time periods: the interwar period and the years following the Supreme Court case Schechter Corp. v. United States. A variety of Supreme Court cases, peer reviewed articles, and recently published news articles are employed to illustrate the Amendment’s development and relevance to federalism in the United States.