Supreme Court could make sports-betting ban an underdog
Dec. 4, 2017: New Jersey Gov. Chris Christie, attorney Theodore Olson and state Sen. Raymond Lesniak speak outside the U.S. Supreme Court after arguments over New Jersey's attempt to legalize sports betting.
WASHINGTON -- A majority of Supreme Court justices appeared to agree with New Jersey Gov. Chris Christie on Monday that prohibiting sports betting in most states is unconstitutional.
With the outgoing governor seated in the front row, several of the court's conservative justices said a 1992 federal law impermissibly directed states to keep their bans on the books. They were joined by Justice Stephen Breyer, one of the court's four liberals.
"It falls within commandeering," Breyer told Paul Clement, the lawyer representing the NCAA and professional sports leagues who have sought to block New Jersey from legalizing sports betting.
New Jersey repealed part of its ban on sports betting in 2014 in a way that would allow the state to regulate it. U.S. Deputy Solicitor General Jeffrey Wall argued that only a more sweeping repeal that allowed all forms of sports gambling would have been permissible.
That argument didn't sit well with Chief Justice John Roberts, who said the federal government was preferring no regulation at all to state regulation.
"You have no problem if there's no prohibition at all, and anybody can engage in any kind of gambling they want?" he said. "A 12-year-old can come into the casino?"
Some of the court's more liberal justices, however, seemed to support the 25-year-old federal law. Justice Elena Kagan said Congress merely was preempting state law when it passed the Professional and Amateur Sports Protection Act, something it does regularly.
Congress passed PASPA almost unanimously to preserve what lawmakers at the time felt was the integrity of the games. Sponsored by then-Sen. Bill Bradley, a New Jersey Democrat who once played small forward for the New York Knicks, the law preceded the advent and growth of Internet gambling.
Because Nevada had legalized sports betting in 1949, it was grandfathered in. Delaware, Montana and Oregon were allowed to keep previously authorized sports lotteries. Other states were given a year's leeway to get in on the action, but New Jersey failed to take advantage of the offer.
Christie, who appeared confident outside court after the hour-long argument, said the option should be open. "If the people of those states decide they want to do what Nevada is already being permitted to do, they should be permitted to do it,” he said.
And state Sen. Raymond Lesniak, the sponsor of New Jersey's law, predicted the court would rule handily in the state’s favor. “It’s not quite slam dunk, but it’s like Tiger Woods and a five-foot putt,” he said.
Rather than stop sports betting, the law helped push more of it underground. Today, illegal sports betting in the United States is a $150 billion annual business. By contrast, less than $5 billion is gambled legally in Nevada.
"All over New Jersey, there's illegal gambling going on," said Theodore Olson, the veteran Supreme Court litigator representing the Garden State. "It can't regulate that activity."
The state's main argument is that the law runs afoul of the 10th Amendment, which reserves for the states all powers not delegated to the federal government. The argument is one that lower federal courts refused to embrace, but a majority of justices routinely defend that concept of federalism dating back more than 200 years.
New Jersey is backed by at least 18 states and the National Governors Association. They warn that upholding the federal law could limit states' independence in the future on such issues as gun control, drug regulation, physician-assisted suicide and even self-driving cars.
But the sports leagues say to comply with PASPA, New Jersey and other states don't have to take any action. The law prohibits sports betting operations by states and third parties but does not require them to take any affirmative action whatsoever.
In the decades since the legislation was passed, opposition among the sports leagues has wavered. The National Hockey League has located a team in Las Vegas, and the NFL's Oakland Raiders are due to follow. National Basketball Association commissioner Adam Silver has endorsed sports betting, and Major League Baseball has invested in fantasy leagues.
The high court is expected to rule by next June at the latest.