Updated: October 16, 2022
Last week the Supreme Court struck down provisions of the Professional and Amateur Sports Protection Act (PAPSA) that prohibit state authorization and licensing of sports gambling schemes. SCOTUS held that this statute violates the Constitution’s anticommandeering rule. The New York Times sums up the import of the decision as follows:
The decision seems certain to result in profound changes to the nation’s relationship with sports wagering. Bettors will no longer be forced into the black market to use offshore wagering operations or illicit bookies. Placing bets will be done on mobile devices, fueled and endorsed by the lawmakers and sports officials who opposed it for so long. A trip to Las Vegas to wager on March Madness or the Super Bowl could soon seem quaint.
I don’t necessarily disagree with the Times take, but what most of the media has missed or ignored is the lofty principles of federalism discussed in the opinion.
At issue in the case was whether states and localities can legalize sports gambling if they so choose. The Court properly described this prohibition as follows: “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” Congress cannot force to states to enact a regulatory scheme or refrain from enacting a regulatory scheme. No such power has been given to the federal government.
Here’s some of my favorite passages from the opinion:
The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. When the original States declared their independence, they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority “to do all . . . Acts and Things which Independent States may of right do.” ¶32. The Constitution limited but did not abolish the sovereign powers of the States, which retained “a residuary and inviolable sovereignty.”
The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.
Of course, under current Court precedent if Congress wanted to enact a comprehensive scheme regulating interstate sports betting, it probably could under broad power the Court has conferred to it under the Commerce Clause. But Congress has not done so and thus cannot claim that a federal scheme preempts a state scheme.
Nonetheless, its nice to read an opinion that rings with the lofty principles of federalism!
William J. Watkins, Jr. is a research fellow at the Independent Institute and the author of the award-winning Independent book, .