Today, the state of New Jersey won an important case in the United States Supreme Court (Murphy vs. NCAA, et.al.). Under the Tenth Amendment, the Constitution does not give a particular power to the federal government or take away that power from a state unless specified. Certain powers are reserved to the states, or to the people. This is the bedrock of a principle known as federalism- the sharing of powers between the states and the federal government. Supreme Court jurisdiction has long held that the federal government is prohibited from “commandeering” the states to enforce federal laws or policies. This is known as the “anti-commandeering” principle.
The flip side of the argument is that the principle of federal preemption- that is, federal laws supercede state laws- should dictate the outcome. Here, the federal government enacted a law prohibiting states from engaging in sports betting unless they already had state provisions that allowed it (Nevada, for example) and, in the case of New Jersey, one year to enact sports betting. Then-Governor Christine Whitman held that decision hostage in a state budget battle and the window of opportunity closed which foreclosed the option to New Jersey.
The majority opinion rejected the preemption argument stating that it applied to private actors, not the actions of state legislatures, or the people collectively through referendum. Alito described the law as a direct command to state legislatures which is exactly what the anti-commandeering principle prohibits. He described it as a “direct affront to state sovereignty.” Although the decision was 7-2, there was disagreement as to whether the entire law should fall. Here, Justice Breyer separated from the majority and suggested that the offending provision should be invalidated, but other portions of the law upheld. Thomas wrote a concurring opinion, but questioned the entire idea of “severability-” the point of contention for Breyer. Ginsburg (joined by Sotomayor) dissented (which Breyer joined in part) arguing mainly the severability issue, but also touching on the Commerce Clause.
The effects of this decision resonate beyond sports betting in New Jersey. First, New Jersey does not get any competitive advantage (other than timing) since the decision affects about 25 states. New Jersey, anticipating a favorable decision, has already started introducing laws that would allow sports books at their existing casinos and racetracks. It will not be too long before neighboring states do the same.
Second, this decision may affect things beyond sports betting. The first major area is marijuana legalization efforts in various states. Drug laws are generally the sharing of enforcement between state and federal law enforcement authorities. It became a federal issue when Congress passed the Food and Drug Acts of 1906. It passed Constitutional muster under the Commerce Clause. However, previous to this law, the enactment and enforcement of drug laws was largely left to the states. While a case can be made that the manufacture and sale of marijuana in one state has an effect on interstate commerce- which the federal government has a constitutional right to regulate- this clearly applies to those cases where the “legal” marijuana is transported across state lines. If a person goes to Colorado, where marijuana is legal, and then transports that marijuana to a neighboring state which has not legalized it, they clearly they are involved in interstate commerce.
However, for the bulk of our history, the enforcement of drug laws- especially marijuana and cocaine- was primarily the purview of the states. Harder drugs like heroin were, in fact, controlled by the federal government in the 1800’s. No state, in their right mind, has ever proposed the legalization of cocaine or any of its derivatives. Prior to 1906, in fact, some states were more lenient in their treatment of marijuana than others. And, of course, our Founders never anticipated the scourge of drug abuse when they wrote the Constitution. Instead, if it was even considered at all, one can surmise that it was an issue they would leave to the states under their policing powers.
Third, the other area mentioned where this decision could have an effect is in so-called “sanctuary city” legislation. Already, states and cities that have decided not to cooperate with federal authorities in the enforcement of immigration laws have cited the 10th Amendment. The argument is if the federal government cannot tell states it can’t legalize sports betting, how can they tell states they must cooperate in enforcement of immigration laws?
The answer is simple. First, the government is not telling states they must cooperate with federal authorities in the enforcement of immigration laws. They are using the appropriations process to withhold funds from states that fail to cooperate with federal authorities. Unlike the case of sports betting which involved the stick, immigration enforcement cooperation involves removal of the carrot(s). States are free to live with or without those federal law enforcement funds. If they opt to be without, so be it. Hence, the level of coercion is considerably less. In fact, it is an affirmation of the principle of federalism- foregoing federal funds to further what they consider to be an important policy decision within their borders.
Furthermore, unlike drug laws which traditionally fell under the policing power of states, immigration and naturalization law is found in Article I, Section 8- the enumerated powers of Congress. Hence, circumventing federal immigration law and policy might not hold up under scrutiny in this case.
Before one reads too much analysis, one should be reminded that this case has potential ramifications beyond mere sports betting in New Jersey and elsewhere. But one should also be reminded of the enumerated and appropriation powers of Congress before one thinks that the decision will stray too far off the beaten path.