Legislative Tracker: Daily Fantasy Sports
Trump admin asks Supreme Court to review immigrant abortion case. New Jersey tried to pass a new law in that simply repealed key provisions of its prohibitions on sports wagering to the extent they applied at racetracks and casinos. Again, the courts ruled against the state, prompting Christie to take the case to the Supreme Court.
New Jersey sees the case as a states' right issue and argue that the law is unconstitutional because it violates the so called "anti commandeering" principle of the 10th Amendment that bars Congress from ordering states to participate in a federal regulatory scheme. Justice Anthony Kennedy seemed to agree Olson's main point Monday.
Kennedy said that the federal law "leaves in place a state law that the state does not want, so the citizens of the State of New Jersey are bound to obey a law that the state doesn't want, but that the federal government compels the state to have. Justice Stephen Breyer noted that there is no "clear federal policy" addressing sports betting.
Justice Samuel Alito suggested that "Congress could have prohibited sports gambling itself," instead of forcing the state to do so, but it chose not to.
Olson argued that when Congress dictates the content of state law, "it undermines the responsiveness of state governments to their electorates, blurs the lines of accountability between the citizens and their state and federal governments, and disrupts the balance between those governments that protects individual liberty.
West Virginia and 17 other states, and the governors of three more, are siding with New Jersey in the case. They say in court briefs that if the high court sides with the sporting leagues, "Congress could compel the entire machinery of state government -- legislatures, executives and courts -- to maintain and enforce repealed state laws at the behest of the federal government.
Lawyers for the leagues respond, however, that the federal law does not run afoul of the Constitution because it doesn't force the states to take any action or become a part of any federal regulatory scheme. It simply prohibits sports betting in the states. They argue that a state law legalizing sports betting is preempted by existing federal law.
But it may -- and routinely does -- prohibit States from adopting laws that conflict with federal policy. Mikos, a professor of law at Vanderbilt University Law School, has signed a friend-of-the-court brief in support of New Jersey and says the case could have far-reaching implications if the justices agree with New Jersey. You can't do anything," Justice Kagan said.
Arguing the other side of the case on behalf of the major sports leagues was former Solicitor General Paul Clement, backed up by the Trump administration and its deputy solicitor general, Jeffrey Wall. Clement got his first volley of hostile fire from Justice Anthony Kennedy. Is this coming from the state government? That's precisely what [our constitutional system of] federalism is designed to prevent. Justice Stephen Breyer added, "All we have here are a group of provisions telling states what they cannot do, at the same time the federal government does not have a clear federal policy.
Clement insisted that the federal law does outline a clear policy against sports gambling: It says "there's something that is essentially a cancer Justice Neil Gorsuch had a different take on the federal law, suggesting that Congress was trying to do it on the "cheap" so it didn't have to expend any funds.
Deputy Solicitor General Wall, in his turn at the lectern, told the justices that New Jersey's claim that there is no comprehensive regime is just "made up. Chief Justice Roberts asked if the state could repeal the ban on sports betting across the board. Wall replied that the problem that Congress was confronting here was state-sponsored and sanctioned gambling schemes, not a bet with your buddies or an office pool, or a stray year-old.
Still, when all was said and done, it looked very much as though five or more justices had serious doubts about the current law. And outside on the Supreme Court steps, an ebullient Christie knew it. The repercussions of a New Jersey victory in the sports betting case could extend well beyond gambling. Christie conceded that if New Jersey wins this battle, the next such challenge may come from states that have legalized the sale of marijuana.
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