Three Cheers for Federalism

Justice Alito’s fantastic opinion striking down the federal ban on sports betting shows federalism can be good for liberals.

Washington Capitals fans celebrate a goal in the second period during the Coors Light NHL Stadium Series game against the Toronto Maple Leafs at United States Naval Academy on March 3, 2018 in Annapolis, Maryland.
Though the ruling dealt exclusively with sports betting, it also affirms a principle that’s highly favorable to progressive causes. Mitchell Leff/Getty Images

On Monday, the U.S. Supreme Court struck down a federal law that effectively prohibited sports betting in most states. Its decision is most obviously a victory for every state except Nevada, whose monopoly on legal sports gambling will soon be busted by competitors rushing to enter the market. But it’s also a triumph for federalism as it imposes reasonable limits on the federal government’s ability to strong-arm states into enforcing laws they’d rather repeal. Notably, though the ruling dealt exclusively with sports betting, it also affirms a principle that’s highly favorable to progressive causes—including marijuana legalization, sanctuary cities, and physician-assisted suicide.

Monday’s decision in Murphy v. NCAA revolves around the federal government’s ability to limit sports gambling by playing favorites among states. In 1992, Congress passed the Professional and Amateur Sports Protection Act, or PASPA, in an effort to set federal limits on sports betting. The law operated in a notably strange way: Instead of directly regulating the practice, PASPA forbade states from repealing their existing bans on sports betting, essentially freezing those laws in place. At the time, four states (Oregon, Delaware, Montana, and Nevada) already allowed individuals to gamble on the outcome of certain sporting events, and PASPA expressly allowed these four states to keep their laws. Oregon, Delaware, and Montana permitted only limited sports lotteries; the real action happened in Las Vegas. Today, Nevada maintains a robust sports betting regime that brought the state nearly $250 million in revenue in 2017 alone.

Yet that figure represents just a fraction of all sports betting in the U.S.—most of it is just conducted illegally. State legislatures are understandably eager to get their hands on some of that cash. New Jersey, for example, has been trying to legalize sports gambling, but the courts have blocked their efforts, citing PASPA. So the state took its case to the Supreme Court, arguing that PASPA infringed upon its sovereign powers under the Constitution. At the heart of New Jersey’s argument is the “anti-commandeering doctrine,” which bars the federal government from compelling state officials to implement federal policy. The Supreme Court has explained that this doctrine, derived from the 10th Amendment, prevents Congress from achieving its policy goals by coercing state lawmakers—an action that New Jersey argued is precisely what Congress had done to 46 states through PASPA.

In a lucid opinion for the court, Justice Samuel Alito agreed that PASPA ran afoul of the anti-commandeering doctrine. The NCAA, as well as the U.S. Department of Justice, had insisted that PASPA did not commandeer New Jersey legislators. (To protect “the integrity of sports contests” and “the welfare of student-athletes,” the NCAA opposes sports betting.) They argued that because the law did not force them to do something, but instead barred them from doing something—that is, legalize sports betting. “This distinction is empty,” Alito wrote. PASPA still “unequivocally dictates what a state legislature may and may not do.” Through the statute, Congress tried to “issue direct orders to state legislatures.” And that effort is unconstitutional whether Congress’ orders oblige states to pass a law or not pass a law.

The court then had to decide what to do the remainder of the law. PASPA has two main prongs: The first bars states from legalizing sports betting, which Alito dispensed with; the second bars individuals from operating sports betting schemes “pursuant to” state law. The idea was to create two lines of attack against sports gambling; if a state legislature permitted the practice, both the state and the gambling operators could be sued.

But this second prong doesn’t outlaw all sports gambling under federal law. Instead, it outlaws sports gambling that is authorized under state law. With PASPA’s first prong voided, this second prong would still put states in a bind: They would be free to legalize sports betting—but whatever activities they permitted would be automatically prohibited under federal law. “We do not think,” Alito wrote, “that Congress ever contemplated that such a weird result would come to pass.” Thus, he found that both prongs of PASPA must fall.

This part of the ruling splintered the court’s liberal bloc. Justice Elena Kagan agreed that the whole statute had to be struck down. Justice Stephen Breyer agreed that PASPA’s first prong was unconstitutional, but would’ve upheld its second prong. Justices Ruth Bader Ginsburg and Sonia Sotomayor took no position on the constitutionality of PASPA’s regulation of states, but wrote in dissent that they would’ve upheld its regulation of private actors. The upshot is that seven justices, including Kagan and Breyer, found that PASPA unconstitutionally interfered with states’ rights, and no justices explicitly held otherwise.

Federalism decisions often divide the court along ideological lines, so if Alito and Kagan agree that a statute violates the 10th Amendment, it must be a truly stupid law. That is exactly what PASPA is—a botched attempt to inflict an unusually dumb legal regime on the nation. PASPA is doubly paternalistic: It tells 46 states what they cannot do (for their own good, of course), then tells those states’ residents what they, too, cannot do. Whatever the merits of the anti-commandeering doctrine in theory, PASPA plainly marks an effort to short-circuit our constitutional design by federal fiat. It hijacks the state legislative process in order to curtail individual liberty. The court was quite right to strike it down in full.

Moreover, Alito’s opinion in Murphy v. NCAA creates a precedent that could help liberals down the road by shielding state experimentation from federal intrusion. For instance, under Murphy, Congress could not pass law forbidding any more states from legalizing marijuana. Nor could it bar states from passing “death with dignity” laws that allow doctors to help terminally ill patients end their lives. And perhaps most pertinently, Murphy confirms that Attorney General Jeff Sessions may not punish sanctuary cities for refusing to enforce federal immigration law. (A federal judge already ruled that Sessions’ effort to do so “violates the Tenth Amendment’s prohibitions against commandeering.”)

The Supreme Court first deployed the anti-commandeering doctrine to strike down regulations on radioactive waste and handguns. These rulings are generally considered conservative—but with the federal government in the hands of Donald Trump and a Republican Congress, progressives are discovering that the principle can cut in their direction, too. So long as the courts apply it consistently, the anti-commandeering rule should safeguard states’ rights to push their own laws to the left. Murphy v. NCAA will soon usher in a multibillion-dollar sports betting market in dozens of states. But its most immediate impact will be to remind Trump and Sessions that they can’t always boss blue states around.