New Jersey argues sports betting ban is unconstitutional

In the nearly decade-long battle over legal sports betting in the state, New Jersey filed briefs with the U.S. Supreme Court earlier this week stating that the federal ban on the practice is not legal because it exceeds the authority of Congress and is, therefore, “manifestly unconstitutional.”

August 30 was the deadline for lawyers on both sides to file briefs with the Court who must decide whether a federal statute prohibiting states from modifying or repealing state laws that deal with private conduct, such as sports betting, over reach when that federal law overrides a state’s own regulatory powers. The court’s decision will have far-reaching constitutional consequences and deals with the hot-button topic of States Rights.

The federal law in question is the Professional and Amateur Sports Protection Act (PASPA) of 1992 which forbids states not already grandfathered in such as Nevada, from allowing single game sports wagering. Of the four states that acted in time, Delaware, Montana, Nevada and Oregon – only Nevada allows single game betting.

After a series of losses in lower courts, New Jersey tried a new tactic by simply repealing sports betting regulations. However, the Third Circuit Court of Appeals has ruled twice that because the law only allowed racetracks and casinos to offer sports betting, the repeal didn’t go far enough. Experts do not believe that New Jersey wants sports betting enough to repeal all laws regulating it, which the lower court seems to demand.

In previous cases, the Supreme Court has held that the federal government cannot force state or local governments to act against their will, in what has become known as the “anti-commandeering principle”.

New Jersey Gov. Chris Christie, in his brief to the court, argued that state legislatures are not subject to federal direction.

Further arguments from the state said: “To meet Congress’s objective of forestalling further legalization of sports wagering, PASPA directs States to maintain in effect their state-law prohibitions on the activity,” lawyers for the state wrote in the brief. “Our constitutional structure does not permit Congress to regulate interstate commerce in that manner. Under our Constitution, if Congress wishes for sports wagering to be illegal, it must make the activity unlawful itself. It cannot compel states to do so.”

The Courier-Post newspaper quotes an expert in sports law who believe the state has a chance to prevail before the high court. Fort Lauderdale, Florida attorney Daniel Wallach said: “Congress can’t prohibit states from decriminalizing activity within their borders, which is the whole crux of this case,” said Wallach. “More likely than not, New Jersey winds up with some sort of sports betting when this case is done, whether it’s New Jersey alone or all the states.”

In 2011 the voters of New Jersey let their legislators know they were in favor of sports betting when they passed a non-binding referendum to allow it. In 2012, Gov. Christie signed a sports betting bill into law allowing the practice at casinos and race tracks in the state. All four major sports leagues and the NCAA sued the state the same year. They said that sports gambling would compromise the integrity of professional and amateur games.