Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrine

Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrineElbert Lin is the solicitor general of West Virginia. Thomas M. Johnson Jr. is the deputy solicitor general of West Virginia. The attorney general of West Virginia, Patrick Morrisey, led a certiorari-stage amicus brief in support of the petitioners. Christie v. National Collegiate Athletic Association has the markings of a sleeper blockbuster. The Supreme Court […]

The post Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrine appeared first on SCOTUSblog.

Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrine

Elbert Lin is the solicitor general of West Virginia. Thomas M. Johnson Jr. is the deputy solicitor general of West Virginia. The attorney general of West Virginia, Patrick Morrisey, led a certiorari-stage amicus brief in support of the petitioners.

Christie v. National Collegiate Athletic Association has the markings of a sleeper blockbuster. The Supreme Court granted certiorari despite the absence of any circuit split and over the opposition of the United States, which had been asked by the court for its views. The parties and their counsel give the case an Ali-Frazier feel. New Jersey Governor Chris Christie versus the National Collegiate Athletic Association and all four major professional sports leagues (the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball). Former U.S. Solicitor General Ted Olson versus his successor (and his principal deputy) Paul Clement. For Supreme Court junkies, you don’t get much closer to the Thrilla in Manilla. And though our briefs take no position on the policy of legalizing betting on professional and collegiate sporting events, there is no denying that the court’s decision could have significant real-world effects on that industry.

The reason we, as representatives of our state, are watching the case? It could be the first Supreme Court decision since Printz v. United States in 1997 – and only the third in the court’s history — to strike down an act of Congress for violating the 10th Amendment under the anti-commandeering doctrine. In the decision under review, the en banc U.S. Court of Appeals for the 3rd Circuit held that the Professional and Amateur Sports Protection Act of 1992 bars states that have existing state-law prohibitions on sports betting from changing those laws to allow some betting. The Supreme Court could, and should, hold that the 10th Amendment doesn’t permit Congress to exercise that kind of direct control over state law and legislatures. That is a holding that should be welcomed by most states, whether red or blue, and whether they support sports gambling or not.

Under the anti-commandeering doctrine, the Supreme Court has previously struck down attempts by Congress to conscript states and state officials into implementing federal policy. In 1992, the court in New York v. United States held a part of the Low-Level Radioactive Waste Policy Act unconstitutional, because it presented states with two unlawful commands: take ownership of certain radioactive waste or regulate according to the instructions of Congress. Then in Printz, the court invalidated portions of the Brady Handgun Violence Prevention Act, because they obligated state law-enforcement officers to perform background checks as part of a federal regulatory scheme.

As interpreted by the 3rd Circuit, PASPA is similarly unconstitutional. Congress can no more mandate that states not repeal or modify certain existing gambling laws than it can dictate to states how they must regulate radioactive waste or obligate state law-enforcement officers to conduct background checks. If Congress wants to ban or restrict sports betting, it must do so itself as a matter of federal law. Or it must lawfully induce the states to do so by, for example, creating financial incentives under the spending clause or implementing a regime that threatens federal pre-emption in the absence of state action (so-called “cooperative federalism”). But it cannot simply commandeer state law to carry out federal policy the way that PASPA does.

In fact, PASPA strikes at the core of what the anti-commandeering doctrine is meant to protect against. The doctrine safeguards the system of dual sovereignty enshrined generally in the Constitution and specifically in the 10th Amendment. In drafting the Constitution, the framers deliberately rejected a system of government in which Congress would employ state governments as agencies of the federal government. That was the model under the Articles of Confederation, and it was not a success. So the framers settled on a system of dual sovereignty, in which the federal and state governments would govern independently, and each would be separately and directly responsible to its citizens. The framers saw this separation of the state and federal governments as critical to the preservation of liberty, because each government would act as a check on the other.

The anti-commandeering doctrine protects the distinct lines of accountability between each government and its citizens. By prohibiting Congress from conscripting states into federal service, the anti-commandeering doctrine ensures that each government remains directly responsible and responsive to its people. If the citizens of a state don’t agree with a certain state policy, they should be able to try to elect state officials who share their view. And if they are objecting to something that is really a federal policy, federal officials should suffer the consequences. But when Congress forces states to implement federal policy, the lines of accountability become far less clear, and state officials may bear the brunt of public disapproval for what is in reality a federal policy.

PASPA interferes with this accountability in at least two ways. First, because PASPA effectuates a ban on sports betting by freezing in place existing state-law prohibitions, it creates confusion over which government is truly responsible for the ban. The actual bans are technically a matter of state, not federal, law. Indeed, there is no federal law that prohibits sports wagering. So from one perspective, it is the state that prohibits sports wagering. But would the state government change the laws if it were permitted to do so? If so, PASPA obscures the fact that the federal government is in reality responsible for the ban. The anti-commandeering doctrine is meant to prevent precisely this kind of confusion.

Second, regardless of whether state or federal officials should be held responsible for the ban, PASPA’s prohibition on the repeal of state law deprives a state’s citizens of a core power they should have over their state government. Central to the ideals set forth in the Declaration of Independence and the Constitution – in particular the 10th Amendment – is the principle that the people ultimately retain sovereign power in the American republic. That power has always been understood to include both the authority to delegate to the state legislature the right to regulate certain private conduct by enacting new laws and the right of the people to reclaim their liberty to engage in that conduct by repealing existing laws. PASPA intrudes upon this core power by freezing in place laws that New Jersey and other states currently have on their books – thus depriving the people and their legislatures of their sovereign right to repeal laws that have become onerous, unpopular or detrimental to liberty.

The sports leagues and the federal government have argued – and likely will argue – that PASPA is little more than a run-of-the-mill express pre-emption clause. Not so. Pre-emption is premised on the existence of an affirmative federal regime. The supremacy clause makes that federal regime supreme over state law, and empowers Congress to enact express prohibitions on contrary state law. But there is no affirmative federal regime here. PASPA is not an express pre-emption clause enacted in support of a larger federal ban on sports wagering. It is a freestanding law that hijacks existing state laws to carry out a federal policy. That is not pre-emption; it is unlawful commandeering.

This case is about far more than sports wagering. The principle that the Supreme Court articulates in this case could have wide-ranging implications for the relationship between the federal and state governments. If the court decides that Congress has the power to co-opt state legislatures and prevent them from repealing their own laws, Congress could prevent state experimentation in a host of other important policy areas. For example, without enacting any federal regulatory scheme to take the place of state law, Congress could simply prevent the states from repealing or amending their existing prohibitions on the sale or use of pharmaceuticals, medical devices, fireworks, credit cards, lending arrangements or other products or services typically regulated under state law. The Constitution’s structure of dual sovereignty does not allow that result. By granting certiorari in this case, the Supreme Court may well have recognized that, under PASPA, Congress has pushed its authority too far.

The post Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrine appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it)

Symposium: It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it)Steven D. Schwinn is a professor of law at John Marshall Law School in Chicago. Students of the Constitution can be excused for scratching their heads at the anti-commandeering doctrine. That’s because this rule, which says that the federal government can’t require states or state officials to adopt or enforce federal law, has no basis […]

The post Symposium: It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it) appeared first on SCOTUSblog.

Symposium: It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it)

Steven D. Schwinn is a professor of law at John Marshall Law School in Chicago.

Students of the Constitution can be excused for scratching their heads at the anti-commandeering doctrine. That’s because this rule, which says that the federal government can’t require states or state officials to adopt or enforce federal law, has no basis in the text or history of the document. It has only weak support in precedent. And it’s unworkable.

Still, the doctrine is rearing its ugly head once again, this time in a pair of consolidated cases involving federal regulation of sports gambling. In particular, Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. NCAA raise the question whether the federal Professional and Amateur Sports Protection Act, which prohibits state-sanctioned sports gambling, runs afoul of the anti-commandeering doctrine when it prevents New Jersey from revoking portions of its prohibition on sports gambling. In other words, the cases ask whether the anti-commandeering doctrine prohibits the federal government not only from requiring states and state officials to adopt or apply federal law, but also from preventing states from repealing their own laws.

New Jersey’s move to allow sports gambling in the state is nothing if not clever. The state tried to revoke its statutory ban on sports gambling in a bald attempt to permit sports gambling under certain, selective circumstances, despite PASPA. The state originally argued that its move squared with an earlier ruling against it by the U.S. Court of Appeals for the 3rd Circuit; it now argues that PASPA cannot prevent it from revoking its law without violating the anti-commandeering doctrine. But New Jersey’s convoluted effort to shoehorn this case into the anti-commandeering doctrine only illustrates the doctrine’s unworkability.

As a result, this case is the perfect vehicle for the Supreme Court to jettison the anti-commandeering doctrine altogether. But don’t count on it: Key federalism rulings in recent years tell us that this court is nowhere close to abandoning this judicially-created federalism protection. So if the court is unwilling to jettison the doctrine, the justices should at least limit it, and flatly reject New Jersey’s disingenuous attempt to sidestep federal law in the name of anti-commandeering.

Our anti-anti-commandeering Constitution

The anti-commandeering doctrine says that the federal government cannot require states or state officials to adopt or enforce federal law. The Supreme Court created the doctrine out of the 10th Amendment and related federalism principles in two cases, New York v. United States in 1992, and Printz v. United States in 1997. But outside the court’s rulings in those cases, the doctrine has no basis in constitutional law.

First, the doctrine has no basis in the text and structure of the Constitution. If anything, the text and structure point in the other direction. For example, the supremacy clause makes the Constitution and federal laws supreme over state constitutions and state laws; it also binds state judges to the Constitution and federal law. The oath clause requires state legislators and state executive officers to swear an oath to support the federal Constitution, but doesn’t reciprocally require federal officers to swear an oath to support the states.

Other parts of the text specifically commandeer the states in various ways that cut to the heart of their independent sovereignty. For example, the Constitution requires state legislatures to provide for the election of federal representatives in Congress; it requires state executives to deliver fugitives from justice; it requires states to grant full faith and credit to the laws of other states; and it reserves to the states “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” The federal Constitution also imposes important restrictions on independent state sovereignty, most notably in Article I, Section 10; the privileges and immunities clause of Article IV; and, of course, the Reconstruction Amendments and other civil-rights amendments (all of which succeeded the 10th Amendment).

To be sure, the Constitution also provides certain specific protections for the states. But none of these says anything about commandeering. (And it’s not as if the framers didn’t know how to write anti-commandeering language, especially coming out of the Articles of Confederation, which authorized certain commandeering.) The 10th Amendment itself – the putative textual basis for the anti-commandeering doctrine – says only that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” This is only a formula for federalism, a “truism” that simply cannot bear the weight of the anti-commandeering principle, especially given the broader text and federal-supremacy structure of the document.

Second, the doctrine has no basis in the history of the Constitution. Again, if anything, the history points the other way. For example, Alexander Hamilton wrote in Federalist No. 27 that the new Constitution, “by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws.” He added that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of the laws.” James Madison supported Hamilton’s reading in Federalist No. 44. Madison asked why state officers should have to swear to support the federal Constitution, while federal officers do not have to swear to support state constitutions. His answer: Federal officials “will have no agency in carrying the State Constitutions into effect. The members and officers of the State Governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution.”

Moreover, the founders apparently assumed that the federal government could commandeer the states and their officers. In early debates, they envisioned that the federal government would commandeer state officers to collect federal taxes. And early Congresses required state judges to perform federal duties related to applications for citizenship and certifying the seaworthiness of vessels.

Anti-commandeering proponents argue that the Articles of Confederation explicitly permitted the national government to issue certain commands to the states, and that the Constitution, in a move away from that failed model, only authorizes Congress to regulate the people directly (and not the states). But just because the Constitution authorizes direct regulation of the people does not mean that it also claws back federal authority to regulate the states. Indeed, if the framers intended to remove that authority, they would have written such a provision right into the document (which they did not).

Third, the doctrine has no basis in precedent. The Supreme Court created the doctrine in New York from dicta and a misleading and incomplete quotation from two earlier cases that had nothing to do with commandeering. And the court famously declared that the doctrine was necessary to promote democratic accountability – to ensure that citizens knew which officials (state or federal) to hold to account for policies. But assumed citizen ignorance is no ground for such an important implied principle of constitutional law.

Finally, the doctrine is unworkable. For one thing, there is no sound distinction between commandeering, on the one hand, and valid federal regulation, on the other. (How is it different for state-sovereignty purposes when Congress requires a state to regulate nuclear waste in a particular way than when Congress requires a state to comply with the Fair Labor Standards Act?) For another thing, there is no sound distinction between commandeering and federal pre-emption. (How is it different, again for state-sovereignty purposes, when Congress requires a state to regulate waste in a particular way than when Congress pre-emptively sets its own federal floor for the regulation of nuclear waste, thus limiting states’ policy options?)

The New Jersey sports-gambling cases only illustrate the doctrine’s unworkability. New Jersey’s too-clever move poses the question whether preventing a state from revoking a statute amounts to commandeering. But under the anti-commandeering doctrine, there is no universal and principled way to answer. The best the Supreme Court can do is to navigate using its own anti-commandeering precedent, which doesn’t point to an inexorable result and which, in any event and as explained above, itself has no basis in the Constitution.

Abandoning anti-commandeering

The problems with the anti-commandeering doctrine recall the very similar problems that the Supreme Court faced with generally applicable federal legislation that also applied to the states. (Think the Fair Labor Standards Act and its application to state employment.) The line-drawing simply proved unworkable. Ultimately, the court in Garcia v. San Antonio Metropolitan Transit Authority abandoned its effort to police this kind of legislation in the name of state sovereignty and left it up to the political process.

The Supreme Court should do the same thing here: abandon the anti-commandeering principle, and leave it to the political process. But given the way this court has ruled in recent federalism cases (like Shelby County v. Holder and National Federation of Independent Business v. Sebelius), and (of course) given that abandonment is not formally part of the case, that outcome is unlikely. So instead, the court should resist New Jersey’s call to expand the doctrine into undefined (and undefinable) areas, only further damaging federalism, and restrict it to cases that are on all fours with New York and Printz.

The post Symposium: It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it) appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: In sports-betting case, the Supreme Court should bet on federalism

Symposium: In sports-betting case, the Supreme Court should bet on federalismJonathan Wood is an attorney at Pacific Legal Foundation, an adjunct fellow at the Property and Environment Research Center, and a blogger for libertarianenvironmentalism.com. He represents a coalition of libertarian-leaning groups as amici supporting New Jersey in Christie v. National Collegiate Athletic Association. Can Congress dictate to states what their own laws must be? The […]

The post Symposium: In sports-betting case, the Supreme Court should bet on federalism appeared first on SCOTUSblog.

Symposium: In sports-betting case, the Supreme Court should bet on federalism

Jonathan Wood is an attorney at Pacific Legal Foundation, an adjunct fellow at the Property and Environment Research Center, and a blogger for libertarianenvironmentalism.com. He represents a coalition of libertarian-leaning groups as amici supporting New Jersey in Christie v. National Collegiate Athletic Association.

Can Congress dictate to states what their own laws must be? The Supreme Court agreed to decide that question in Christie v. National Collegiate Athletic Association, the latest iteration of New Jersey’s years-long effort to legalize sports betting and have the federal Professional and Amateur Sports Protection Act declared unconstitutional. The Supreme Court’s decision will have wide-ranging implications for federalism, particularly cooperative federalism, and political accountability.

The present conflict began in 2011 when New Jersey voters approved a referendum, by a whopping 2-1 margin, favoring the legalization of sports betting. Thanks in part to PASPA, which forbids states from “authoriz[ing]” this type of gambling, it is illegal to bet on sports in almost every state. Only those states that allowed sports betting in 1992, basically just Nevada, may retain it.

The federally compelled state bans are widely and flagrantly violated. Illegal sports betting is likely a $100 billion dollar enterprise. Across the country, people openly gamble on the Super Bowl, the NCAA basketball tournament and many other sports events. President Barack Obama bragged about violating these laws during an appearance on “The Late Show with Stephen Colbert.” Even the commissioner of the National Basketball Association has called for PASPA’s repeal.

In response to the popular referendum, New Jersey initially tried to replace its state prohibitions with a licensing and permitting regime, which was challenged by the NCAA and four professional sports leagues. The U.S. Court of Appeals for the 3rd Circuit held that this reform violated PASPA, rejecting New Jersey’s argument that PASPA violates the equal-sovereignty doctrine by discriminating among the states (Nevada can have sports gambling but New Jersey can’t). The court also rejected New Jersey’s argument that PASPA unconstitutionally commandeers state law, interpreting “authorize … by law” to forbid states from affirmatively licensing or permitting gambling but not from repealing their own prohibitions. The Supreme Court declined to review that decision.

So New Jersey accepted the 3rd Circuit’s invitation and partially repealed its prohibitions on sports gambling at casinos and racetracks, without replacing them with any affirmative authorization or permit. Sports leagues challenged that too. This time, the en banc 3rd Circuit, abandoning the limits it had recognized earlier in order to avoid the commandeering problem, interpreted PASPA to forbid states from repealing their own prohibitions as well as from affirmatively authorizing gambling.

Nevertheless, the court of appeals once again rejected New Jersey’s commandeering arguments, construing commandeering to apply only when federal law compels states to adopt and enforce a new policy. “PASPA does not command states to take any affirmative actions,” the court held, but merely forbids states from amending policies they had previously, voluntarily adopted. The court suggested that PASPA may allow some repeals but refused to explain what those might be, leading the dissent to question whether, under the majority’s rationale, any “repeal of any kind will evade [PASPA’s] command.”

The Supreme Court granted certiorari to decide whether the 3rd Circuit’s narrow view of the commandeering doctrine is correct. Its past commandeering cases suggest that it will reject that view.

The Supreme Court has twice found federal laws to commandeer states unconstitutionally. In New York v. United States, the court considered a federal law that required states to either regulate radioactive-waste disposal according to standards set by Congress or accept ownership of the waste. States had no option to do nothing and cede the issue to the federal government, but were forced to adopt as state policy one of two options imposed by the feds. Although the Supreme Court had previously referred to commandeering as a constitutional limit on Congress’ power, this was the first time it had found that a federal law actually “commandeered the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Under New York, if Congress wants a policy enforced, it can encourage states to voluntarily participate (so-called cooperative federalism) or it can enforce the policy itself directly on individuals, but it cannot simply dictate policy to states.

Printz v. United States extended the protections of the commandeering doctrine to state officials. The Brady Act required local law-enforcement officers to perform background checks for prospective gun sales. The United States argued that New York should be limited to situations in which Congress requires states to affirmatively enact policies set by Congress, arguing that “the constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities.” But the Supreme Court rejected any limitation of the commandeering doctrine based on the “distinction between ‘making’ law and merely ‘enforcing’ it, between ‘policymaking’ and mere ‘implementation.’” Once again, the court emphatically concluded that the federal government “‘may not compel the States to enact or administer’” federal policy.

Commandeering is perhaps easiest to recognize in contrast to pre-emption cases. In the latter, Congress may give states an option of adopting some sort of state regulatory program or cede the issue to the feds. It has done so many times in the environmental arena: If states do not regulate up to federal standards, the federal government directly imposes those standards on individuals.

PASPA is a unique statute in two significant respects: It regulates states as states (and discriminates among them), and it gives states no option to cede the issue of sports betting to federal enforcement. PASPA does not contain a federal prohibition on sports betting (probably because that would have been a political nonstarter with Nevada). Instead, it forbids states from legalizing sports betting and individuals from placing bets pursuant to any state legalization effort.

The Supreme Court has previously identified two principal justifications for the commandeering ban: (1) Commandeering would frustrate the Constitution’s system of federalism; and (2) commandeering would frustrate political accountability. Both also cut against PASPA and the 3rd Circuit’s rule.

Limiting the commandeering doctrine to save PASPA would pose significant federalism problems. Most obviously, it would make cooperative federalism much more difficult, if not impossible. If Congress can compel states to continue enforcing policies forever as long as the initial adoption was voluntary, a state would have to think long and hard before participating in any cooperative federalism arrangement. If a state initially agreed to participate, the federal government could bind the state forever, no matter how expensive, unpopular or ineffective the policy proved. To do so, it would only need to enact a statute like PASPA forbidding the state from “authorizing” any activity prohibited by the policy.

PASPA also undermines traditional federalism principles by denying states the ability to experiment with novel solutions to vexing public policy problems. Consider the recent federalism revolution on the issue of marijuana. Because of the failed federal war on drugs, many states have experimented with more relaxed regulations or wholesale legalization of the drug. If PASPA is constitutional, Congress could stop this federalism experiment (or any other) in its tracks by forbidding any more states from “authorizing” anything that was previously forbidden.

This kind of commandeering would also frustrate political accountability. When the federal government dictates policy to states, accountability is diminished at both the state and federal level. The federal government is less accountable because it can adopt feel-good policies but shift the hard questions of how to implement and pay for them to states. And accountability at the state level will be undermined because voters will reasonably punish state politicians for these policies if they prove unpopular, even though the politicians are powerless to do anything about them. We have seen this play out in New Jersey, where the voters adopted a state referendum calling for state-law reform, apparently in the mistaken belief that the state had any say in what state law should be.

It’s easy to underestimate this political accountability concern. Won’t voters realize what’s going on and vote accordingly, especially when the issue has received as much attention as PASPA has? Although intuitively appealing, this is a too-cheery view of politics. Because people’s time and attention are limited, and the likelihood that a single vote will affect an election is incomprehensibly small, voters are rationally ignorant on political issues. Only 42 percent of Americans can name the three branches of government. Hitting more closely to home for SCOTUSblog fans, only 34 percent can name a single Supreme Court justice. Expecting voters to understand the ins and outs of a relatively obscure statute like PASPA is out of the question.

The Supreme Court’s decision to take up the question of PASPA’s constitutionality is a welcome sign. Letting the 3rd Circuit’s decision stand would risk Congress using a similar approach to undermine federalism and political accountability in other policy areas. By deciding the constitutional question now, the Supreme Court can set the necessary limits on commandeering while only PASPA is at stake. It would be harder for the court to take this step if PASPA’s approach, currently confined to a failed statutory regime, spread to other, more politically sensitive issues.

The post Symposium: In sports-betting case, the Supreme Court should bet on federalism appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: Congress’ bet against equal sovereignty

Symposium: Congress’ bet against equal sovereigntyZachary S. Price is an associate professor at UC Hastings College of the Law. Christie v. National Collegiate Athletic Association presents the question whether the federal Professional and Amateur Sports Protection Act impermissibly commandeers state legislatures by preventing them from “authoriz[ing]” certain sports gambling. Another question, however, lurks in the background of that one: Are […]

The post Symposium: Congress’ bet against equal sovereignty appeared first on SCOTUSblog.

Symposium: Congress’ bet against equal sovereignty

Zachary S. Price is an associate professor at UC Hastings College of the Law.

Christie v. National Collegiate Athletic Association presents the question whether the federal Professional and Amateur Sports Protection Act impermissibly commandeers state legislatures by preventing them from “authoriz[ing]” certain sports gambling.

Another question, however, lurks in the background of that one: Are PASPA’s restrictions invalid because they apply only to some states and not others? Whatever the correct answer to the commandeering question, the answer to this second question is no. Doubts about PASPA’s overall validity should play no role in the Supreme Court’s decision in this case, because PASPA’s selective application to a subset of states is perfectly constitutional.

A few years ago, the Supreme Court famously embraced a principle of state equal sovereignty in Shelby County v. Holder. In that case, the court invoked a supposed “fundamental principle of equal sovereignty among the states” to invalidate the coverage formula for Section 5 of the Voting Rights Act of 1965. That law required covered states to obtain federal approval before enacting laws relating to voting. Characterizing this measure as “strong medicine,” the Supreme Court deemed it suspect because it applied only to some states and not others. Shelby County went on to hold that Section 5’s discrimination among states was insufficiently justified by “current conditions,” even though the Supreme Court had upheld the provision at other times in the past.

Four years earlier, the Supreme Court had floated this “equal sovereignty” idea in Northwest Austin Municipal Utility District Number One v. Holder. I published an essay in the NYU Law Review Online arguing that NAMUDNO’s equal-sovereignty principal was bunk. It still is, Shelby County notwithstanding.

Of course, the Constitution does guarantee the states certain forms of equality. Most significantly, it assures every state two senators. Hence, my state of California (with a population of 39 million) enjoys the glorious sovereign equality of Senate representation identical to Wyoming’s (population 590,000). In addition, the Constitution expressly bars unequal “Duties, Imposts, and Excises” and “Preference[s]” for one state’s ports over another’s. The 10th and 11th Amendments guarantee all states the same set of residual sovereign powers and the same sovereign immunity.

Under basic principles of textual interpretation, however, enumerating these specific forms of equality implies that Congress is not otherwise required to legislate equally for all states. What’s more, longstanding pre-Shelby practice and precedent bear out this inference.

As I explained in my essay, although a line of Supreme Court decisions did ensure that every new state entered the union on “equal footing” with its predecessors, the court applied this doctrine to invalidate laws that restrained new states in ways that went beyond what Congress could do to any state (old or new) through ordinary legislation. Thus, for example, in Coyle v. Smith, the court invalidated a state-admission condition that prevented the state from relocating its capital. In contrast, in other cases the court upheld conditions that treated states unequally but were rooted in Congress’ ordinary legislative powers.

As PASPA itself illustrates, many ordinary laws in fact have such unequal effects. For its part, PASPA prohibits sports gambling nationwide and bars states from authorizing it, but it expressly exempts states that had allowed sports lotteries or gambling before the law passed. The statute also gave New Jersey (and only New Jersey) one year to legalize certain sports gambling and thus escape the law’s strictures.

Laws like PASPA – and there are others (my essay and an article by Leah Litman each provide examples) – illustrate the mischief a broad understanding of equal sovereignty could cause. Perhaps not surprisingly, however, given the principle’s incoherence, no one seems to know just what Shelby County means or how it applies to laws other than the VRA.

Some commentary, most notably this thoughtful partial defense of equal sovereignty by Thomas Colby, has suggested that laws like PASPA are indeed suspect. Though rejecting any implication that state equal sovereignty requires “equal treatment in all respects,” Colby argues that the principle recognized in Shelby County should foreclose laws that expressly limit some states’ regulatory authority relative to others’. From that point of view, PASPA is suspect because it allows some states to permit sports gambling while preventing others from doing so. (This more recent essay offers another analysis of PASPA along similar lines.)

For all the reasons addressed earlier, I find this view unpersuasive as a matter of first principles. Congress includes exceptions of various sorts in statutes all the time; the Constitution gives no sound reason to think exceptions for particular states are suspect.

More to the point here, though, it is not at all clear that Shelby County used the term “sovereignty” in such a broad sense. After all, the Supreme Court in that case invalidated a selective restriction on states’ authority to alter voting rules and procedures. As the court emphasized in its opinion, voting laws are a “particularly sensitive area[] of state and local policymaking.” Federal statutes targeting such laws do not simply restrict state regulatory authority. Instead, they restrict state sovereignty in the more specific sense of impairing the state’s capacity to constitute itself as a sovereign governing authority in the first place.

The VRA’s means, moreover, were particularly demeaning to state authority. “States,” Chief Justice John Roberts wrote for the majority, “must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction [under other provisions of the VRA].”

Shelby County, then, need not imply that every impediment to state regulatory authority impairs state equal sovereignty. The decision might cast doubt only on laws that more directly interfere with selected states’ authority to constitute their own governing structures.

Alternatively, as Leah Litman has argued, the case might be understood to affect only laws that pose a particular affront to states’ equal dignity, as the VRA did by imposing intrusive burdens on particular states based on manifest suspicion of those states’ good faith. Either way, Shelby County’s equal-sovereignty principle does not necessarily call into question laws like PASPA that simply apply different regulatory requirements within different states.

In any event, even if laws like PASPA were suspect on equal-sovereignty grounds, there would be no reason to think the resulting heightened scrutiny should be fatal in fact. The Supreme Court found insufficient justification for the VRA’s coverage formula in Shelby County, but PASPA’s exceptions were generally designed to preserve existing sports betting in states that allowed (or sought to allow) such gambling at the time the federal legislation was adopted. Just as grandfather clauses and other exceptions to protect various forms of private reliance may be justified, a carve-out for states that relied in particularly pronounced ways on prior federal law should be constitutional.

Shelby County’s equal-sovereignty principle deserves the fate of all misguided precedents: a narrow construction that contains the damage and paves the way to overruling. Even taking Shelby County as a given, however, the decision need not cast doubt on PASPA’s validity. As the justices consider the commandeering issue presented in Christie, they should put aside any concerns about PASPA’s unequal application to different states.

The post Symposium: Congress’ bet against equal sovereignty appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: Lift the harmful, failing federal ban on sports betting

Symposium: Lift the harmful, failing federal ban on sports bettingStacy Papadopoulos is general counsel and senior vice president of industry services at the American Gaming Association, which filed a cert-stage amicus brief in support of the challengers in Christie v. National Collegiate Athletic Association. In 1992, Congress enacted the Professional and Amateur Sports Protection Act, which prohibits all but a few states from legalizing […]

The post Symposium: Lift the harmful, failing federal ban on sports betting appeared first on SCOTUSblog.

Symposium: Lift the harmful, failing federal ban on sports betting

Stacy Papadopoulos is general counsel and senior vice president of industry services at the American Gaming Association, which filed a cert-stage amicus brief in support of the challengers in Christie v. National Collegiate Athletic Association.

In 1992, Congress enacted the Professional and Amateur Sports Protection Act, which prohibits all but a few states from legalizing and regulating sports betting. A quarter of a century later, sports fans, state policymakers, the law-enforcement community and even some professional sports leagues agree that PASPA is misguided and failing. During its next term, the Supreme Court will decide whether PASPA is also unconstitutional.

There is no dispute that Congress could, as a matter of federal law, prohibit or regulate interstate sports betting, and in the process pre-empt any state law on the subject. But PASPA does not do that. Instead, PASPA forces states to continue prohibiting sports betting as a matter of state law – and, presumably, to enforce those prohibitions using state resources. State governments are required to maintain their sports-betting laws as they existed in 1992, but have no power to amend, strengthen or repeal those laws. The effect of PASPA has been to freeze in place state law as it existed in the early 1990s and to interfere with states’ police powers and authority to regulate local matters of economic development and public morality.

For over a century, however, the Supreme Court has made clear that Congress may not require states to require or prohibit certain acts, even when the federal government could require or prohibit those acts in the first instance. Under this “anti-commandeering doctrine,” the court has repeatedly struck down laws that coopt the states’ law-enforcement apparatus and treat states as mere outposts of the federal government. Thus, in New York v. United States, the Supreme Court held that Congress could not force states either to take title to low-level radioactive waste generated within their borders or to adopt federal standards regulating such waste. Similarly, in Printz v. United States, the court determined that Congress could not compel state law-enforcement officials to perform background checks for would-be purchasers of firearms. Simply put, Congress may not command states to “promulgate and enforce laws and regulations,” control or influence the manner in which states “regulate private parties,” or “require the States … to regulate their own citizens.” This is because, as the Supreme Court has recognized, a state’s ability to decide what its own law is (or is not) is a “quintessential attribute of sovereignty” and “precisely what gives the State its sovereign nature.”

PASPA violates these core principles of American federalism by compelling almost every state to continue prohibiting sports betting, regardless of what is in the best interest of the state and its citizens. The harm of such federal overreach is more than purely structural. Preserving a state’s autonomy to enact, enforce, modify and repeal its own laws as it sees fit protects individual rights and promotes democratic accountability. PASPA’s effect on New Jersey’s long-running effort to legalize and regulate sports betting is a prime example of what happens when the people who are required to enforce a law are prohibited from changing that law to reflect new circumstances or evolving public opinion.

As a policy matter, PASPA is a failure. Passed with the salutary purpose of protecting problem gamblers and shielding the integrity of sports, PASPA has fueled a thriving black market that operates beyond the reach of law enforcement or regulatory oversight. My organization, the American Gaming Association, estimates that each year, Americans illegally wager more than $150 billion on U.S. sporting events. In other words, if the U.S. illegal sports-betting market were a company, it would have come in at No. 11 on the Fortune 500 – right behind AT&T and Ford, two spots ahead of Amazon, and with annual revenue roughly equal to the combined revenue of Microsoft, Facebook and Goldman Sachs. The prevalence of illegal sports betting is particularly concentrated around the nation’s most popular sporting events. Earlier this year, Americans bet an estimated $15 billion on the Super Bowl and the NCAA men’s basketball tournament; an estimated 97 percent of those bets were illegal.

This black market exists only because of PASPA. When given a choice between a black market and a legal, regulated market, consumers invariably choose the latter. In Nevada, the United Kingdom, and other places with legal sports betting, there simply is no demand for illegal betting. Because PASPA forces almost all sports betting underground, the statute has failed to protect consumers or local communities. In an unregulated market, bettors cannot rely on consumer-protection laws or even basic principles of contract enforcement. As a result, those citizens – particularly low-income and otherwise disadvantaged individuals – are susceptible to exploitation. Illegal sports revenue not only exacts personal costs on individuals, it also inflicts broader social damage: Illegal sports-betting revenue funds organized crime and other illicit activity, such as drug and human trafficking, money laundering and racketeering. PASPA prevents states from redirecting that revenue to lawful, productive means. A recent report by Oxford Economics estimates that repealing PASPA and creating a regulated market for sports betting would create up to $26.6 billion in annual economic impact, including up to $14.2-billion growth in gross domestic product, $5.3 billion in tax revenue and $7.5 billion in wages.

It also is unclear that PASPA even protects the integrity of professional and amateur sports. In countries with legalized sports betting, law-enforcement agencies, sports leagues and betting operations can use aggregate data to identify suspicious betting patterns. Just last year, a legal sports book alerted authorities to suspect betting patterns on doubles matches at the Australian Open. By contrast, in the United States, if point-shaving or match-fixing is uncovered, it is almost always by accident and as the result of an unrelated investigation. Given these facts, it is not surprising that a majority of sports fans and even the commissioner of the National Basketball Association now support a legal, regulated sports-betting market.

Sports fans, law-enforcement authorities and state governments demand change. In 2011, the voters of New Jersey – recognizing the failure of prohibition and seeking to capture the tremendous economic potential of a safe and regulated betting market – overwhelmingly passed a ballot initiative authorizing the state legislature to legalize sports betting. The state has taken this cause all the way to the Supreme Court. Should New Jersey succeed in its effort, more states are likely to follow. As of July 24, there are currently 23 bills in 13 other states that could potentially legalize sports betting. Once PASPA is overturned or repealed, federal and state government, law-enforcement agencies, the gaming industry and the sports leagues will be able to devise a 21st-century regulatory framework that protects bettors, generates revenue for local communities and protects the integrity of our national pastimes.

The post Symposium: Lift the harmful, failing federal ban on sports betting appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: Sports-betting ban clearly within Congress’ power over interstate commerce

Symposium: Sports-betting ban clearly within Congress’ power over interstate commerceMichael K. Fagan, an adjunct professor at Washington University Law, coordinates the Predatory Gambling Liability Project, a strategic litigation effort of the 501(c)(3) group, Stop Predatory Gambling. He served as a career federal prosecutor and as Special Attorney to U.S. Attorney General Janet Reno. As its recent term drew to a close, the U.S. Supreme […]

The post Symposium: Sports-betting ban clearly within Congress’ power over interstate commerce appeared first on SCOTUSblog.

Symposium: Sports-betting ban clearly within Congress’ power over interstate commerce

Michael K. Fagan, an adjunct professor at Washington University Law, coordinates the Predatory Gambling Liability Project, a strategic litigation effort of the 501(c)(3) group, Stop Predatory Gambling. He served as a career federal prosecutor and as Special Attorney to U.S. Attorney General Janet Reno.

As its recent term drew to a close, the U.S. Supreme Court surprised many observers by agreeing to hear New Jersey’s and the commercial gambling industry’s appeals in Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA. The cases have been consolidated and will be argued together, most likely in the late fall or early winter. The cert grants came despite the U.S. solicitor general’s opposition and despite the Supreme Court’s fairly recent denial of cert to the same parties in an earlier iteration of the cases.

The consolidated cases involve defiance of a federal statute, the Professional and Amateur Sports Protection Act, by New Jersey and its controlling partner, the commercial gambling industry. PASPA prohibits states and individuals from actively taking steps to facilitate or engage in state-sponsored commercial sports gambling, and it explicitly bans states from authorizing or licensing such activities. Enacted in 1992, PASPA excluded from its prohibition the handful of then-existing state-authorized commercial sports-gambling schemes. These pre-existing configurations were not seen as threats to interstate commerce and the national economy in the same harmful ways or to the same extent as widespread commercial sports gambling. PASPA also provided that if New Jersey were to authorize commercial sports gambling in its Atlantic City casinos within one year of PASPA’s effective date, the exemption from PASPA’s prohibition would extend to that action; however, New Jersey did not act in time and its potential exemption expired.

Nearly a generation later, however, with an eye toward raising state revenue via taxation and relying upon an intervening amendment to its state constitution, New Jersey twice passed laws attempting to allow commercial sports gambling to take place in the state – as long as the gambling did not involve college sporting events taking place in New Jersey or games played anywhere by teams from New Jersey colleges. Each time, the major professional sports leagues and the NCAA sought and received federal court injunctive relief (as PASPA enables affected sports leagues to do) to block New Jersey’s perceived disregard of PASPA. Two district-court judges, two different panels of the U.S. Court of Appeals for the 3rd Circuit, and the en banc appellate court rejected claims that PASPA violates the anti-commandeering doctrine by requiring a state to administer or enforce a federal regulatory program. (In each of the appellate rulings, dissents were filed.)

Defending its most recent enactment, New Jersey maintained that its statute merely repealed state laws against commercial sports gambling and was neither an authorization or licensing of such gambling, so that PASPA was not violated. The sports leagues and the federal courts’ majorities, however, observed that the language used in New Jersey’s statute plainly was intended and served to authorize commercial sports gambling only at limited, pre-existing licensed gambling venues and only for certain people. Substance prevailed over form. The practical authorizing effect of the state statute controlled, said the 3rd Circuit majorities, rather than any legislative effort to beguile by labeling the law as a mere repeal. Finding a plain conflict between the state law and PASPA’s prohibitions, the appellate majorities then determined that PASPA did not offend the anti-commandeering doctrine, because it did not require the state to do anything affirmatively. The courts concluded that PASPA barred the state from permitting commercial sports gambling.

One way some have framed the issue now before the Supreme Court is whether PASPA, seen as a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct, impermissibly commandeers the regulatory power of states in contravention of two 1990s-era cases, New York v. United States and Printz v. United States. PASPA, however, does not prohibit modification or repeal of state-law prohibitions on solely private conduct. Rather, it prohibits states (actually, any “governmental entity”) or persons “acting pursuant to the law or compact of a governmental entity” from engaging in certain conduct. That prohibited conduct is “to sponsor, operate, advertise, promote, license, or [as might a governmental entity, to] authorize by law or compact” any gambling scheme on any athletic game or individual performance in a game. PASPA’s prohibitions do not preclude conduct unless it is pursuant to some government’s authorizing or licensing law, which, by definition, makes the conduct something other than entirely private. PASPA’s prohibition on governmental conduct is also not a prohibition on “private” conduct, because governmental conduct is, by definition, public.

The 1990s-era cases cited above gave rise to the judge-made anti-commandeering doctrine, a doctrine rooted not in the words of the 10th Amendment or elsewhere in the Constitution (originalists, take note), but in a perceived structuring by that document of relationships between the federal and state governments. The contours of that structuring, of course, depend on which justices, activist or otherwise, are doing the perceiving. The doctrine presently says that Congress cannot compel the states to enact or enforce a federal regulatory program affirmatively or directly. It protects states from being “commandeered” against their will into spending their resources or their officials’ reputations on some federal regulatory effort.

Yet PASPA’s prohibitions plainly do not require the legislating state either to act affirmatively or to expend resources or reputation by regulating a federal program. Instead, PASPA obligates states (and other governmental entities) not to act in ways that may injure and corrupt channels of interstate commerce; that impair other states’ commercial and quality-of-life interests; that defy national protective policies inherent in the constitutionally assigned federal powers over interstate and foreign commerce and taxation; and that, in the aggregate, remove capital from productive uses to involve it in sterile transfers of wealth.

The commerce and supremacy clauses of the United States Constitution have long afforded the federal government ample power to prohibit a state from passing laws that shift from the legislating state to other states and to the national government the costs of a state-authorized vice occurring in the legislating state, when that vice both necessarily affects interstate commerce and does so by design. This is especially the case when the legislating state has not allowed or provided recompense for the harms associated with the vice.

New Jersey’s attempt to authorize commercial sports wagering necessarily affects interstate commerce, most plainly because the state’s statute bans bets on games involving New Jersey colleges. This, of course, attempts to protect New Jersey colleges from the integrity risks inherent in sports gambling. The ban, however, shifts the risks of corruption to other states’ college games and related commercial interests. Precluding such self-interested legislation that disadvantages other states is a key reason why the U.S. Constitution granted the federal government broad powers over interstate and foreign commerce. Since Gibbons v. Ogden in 1824, Congress’ power to prevent commercial wars among the states (as PASPA does) has been well-established.

The Supreme Court has repeatedly upheld those broad federal powers, especially when they are exercised (i) to limit the use of interstate and foreign commerce as vehicles for criminal activity; (ii) for nonproductive or illicit wealth transfers; (iii) for tax-evasive activities; (iv) for thwarting state laws prohibiting, limiting or regulating commercial gambling; and (v) for increasing wealth disparity, imposing costly mental and other health burdens, and harming family cohesion. PASPA advances each of these aims. People may argue over whether PASPA promotes a wise policy, but nothing about the statute violates settled constitutional law.

Like all commercial gambling (and unlike noncommercial gambling), government-authorized commercial sports gambling’s business model seeks:

[1] to get as many people as possible

[2] to gamble as often as possible,

[3] for as long as possible,

[4] and to bet as much as possible.

These four goals are largely absent from noncommercial (e.g., private, social or most charitable) gambling. They ensure that both gamblers and nongamblers would lose from nationally-expanded legalization of commercial sports gambling, because there is no way to limit to only gamblers or the industry the social and economic harms and costs inherent to commercial gambling. PASPA recognizes this reality.

Organized harm, made unlawful, does not become harmless simply because a state attempts to make it lawful. PASPA recognizes this reality, too. And when that organized harm affects interstate or foreign commerce, the power to regulate or prohibit it resides with Congress, as it has for centuries.

Unless at least five members of the Supreme Court seek to markedly expand or modify the anti-commandeering doctrine, it is difficult to see why the court granted certiorari in this case, in which the primary issues are clearly political, not constitutional.

(The Supreme Court may address other doctrinal arguments, such as PASPA’s interplay with the equal-sovereignty or private-non-delegation doctrine, but the cert grant focused on the anti-commandeering issue, so I have not discussed these other arguments here.)

The post Symposium: Sports-betting ban clearly within Congress’ power over interstate commerce appeared first on SCOTUSblog.

from http://www.scotusblog.com

The 10th Amendment, anti-commandeering and sports betting: In Plain English

The 10th Amendment, anti-commandeering and sports betting: In Plain EnglishMost Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United […]

The post The 10th Amendment, anti-commandeering and sports betting: In Plain English appeared first on SCOTUSblog.

The 10th Amendment, anti-commandeering and sports betting: In Plain English

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case this fall, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.

Christie and the NJTHA also warn the justices of dire consequences if the leagues prevail. Looking beyond sports betting, they caution that if the 3rd Circuit’s interpretation of “authorization by law” as also barring repeals is allowed to stand, “it is not difficult to imagine other examples in which Congress could dictate policy outcomes in States without ever having to legislate directly. Rather than enact gun control measures of its own, for example, Congress could prohibit States from relaxing existing restrictions on the purchase of firearms by particular persons.”

The NCAA and the leagues push back, praising the 3rd Circuit’s ruling as a “commonsense conclusion.” The Supreme Court’s cases, they stress, make clear that the anti-commandeering doctrine only comes into play when Congress expressly creates obligations that “force states to do Congress’ bidding.” But PASPA, they suggest, does nothing of the sort: “It does not compel states (or state officials) to do anything,” but instead simply bars the states from authorizing sports betting. In that sense, they argue, PASPA isn’t any different from “scores” of other federal laws that regulate the states by specifically barring them from passing laws that “conflict with federal policy.” And in this particular case, the leagues observe, there is direct evidence that Congress would have viewed the state’s current efforts to allow sports betting at casinos as a PASPA violation: PASPA specifically gave the state “an exemption for a one-year window, and only a one-year window, to adopt such a law.”

The leagues also reject New Jersey’s argument that the 2014 law only repeals some prohibitions on sports betting, rather than authorizing it, as “mere semantics.” Even if New Jersey calls the 2014 law a “partial repeal,” the leagues say, it is still an authorization. To be sure, the leagues concede, PASPA does not necessarily prohibit “any and all state efforts to repeal or alter existing sports gambling prohibitions.” But it does require courts to look at “the substance of state laws, not just at labels.” And here, the leagues conclude, the 3rd Circuit was correct that, “whatever else PASPA may prohibit or permit, it does not allow a state to use wordplay to channel sports gambling to its favored venues for state-authorized gambling while prohibiting it everywhere else.”

The justices often grant review to resolve differences in opinion among the federal courts of appeals. However (as the leagues emphasized in urging the court to stay out of the dispute), there is no such division in this case, and – when asked by the Supreme Court to weigh in – the federal government (whose opinions the justices take seriously) recommended that review be denied. The fact that the Supreme Court nonetheless agreed to take on the case suggests that at least several justices regard the 10th Amendment issue as an important one; we’ll know more about how they are likely to rule when they hear oral argument this fall.

The post The 10th Amendment, anti-commandeering and sports betting: In Plain English appeared first on SCOTUSblog.

from http://www.scotusblog.com

Surprise dismissal of bankruptcy case seemingly prompted by change in claim ownership

Surprise dismissal of bankruptcy case seemingly prompted by change in claim ownershipOn Thursday, the Supreme Court took the unusual step of dismissing PEM Entities v. Levin, a bankruptcy case that had been scheduled to be heard this coming term. Occasionally, the court dismisses previously granted cases as “improvidently granted” before reaching the merits. This can happen when a party shifts its argument in its merits brief, […]

The post Surprise dismissal of bankruptcy case seemingly prompted by change in claim ownership appeared first on SCOTUSblog.

Surprise dismissal of bankruptcy case seemingly prompted by change in claim ownership

On Thursday, the Supreme Court took the unusual step of dismissing PEM Entities v. Levin, a bankruptcy case that had been scheduled to be heard this coming term. Occasionally, the court dismisses previously granted cases as “improvidently granted” before reaching the merits. This can happen when a party shifts its argument in its merits brief, when it becomes clear that a dispute is highly fact-bound, or when the justices discover that the case involves so-called “vehicle problems” that may prevent the court from reaching the merits.

Such dismissals are fairly rare, but yesterday’s was particularly unusual, because it came merely six weeks after the grant and before the parties had filed their briefs on the merits. As is customary, the court’s order did not explain the reasoning behind the dismissal. The dismissal appears, however, to have been prompted by a joint motion that was filed on July 21 by the petitioner, PEM Entities, and another party, Province Grande Olde Liberty, LLC, which was attempting to step into the shoes of the respondents. This being a bankruptcy case, the various parties and their relative interests were already quite complex; post-grant changes to those interests revealed in the motion appear to have spooked the court.

PEM Entities had purchased a large secured claim against PGOL at a steep discount, after PGOL had defaulted on the loan. Although PGOL was in default, PEM Entities did not move to foreclose on the loan immediately. PGOL was nonetheless unable to resolve its financial distress and ultimately filed for bankruptcy under Chapter 11, with its sole asset – a golf course and accompanying development – encumbered by PEM’s loan. The respondents in the Supreme Court, Eric M. Levin and Howard Shareff, were junior claims-holders who could recover from the bankruptcy estate only if the court did not treat PEM Entities’ loan as secured debt. Accordingly, Levin and Shareff brought an adversary proceeding against PEM Entities and PGOL seeking to “recharacterize” PEM Entities’ secured claim as equity. Although it was named as a defendant, PGOL, as the debtor facing the loss of its only asset to its secured creditor, unsurprisingly did not oppose Levin and Shareff’s recharacterization claim and did not participate in the appellate process.

The bankruptcy court, following precedent of the U.S. Court of Appeals for the 4th Circuit, applied a “federal test” for recharacterizing the claim, which allowed it to consider both the discounted price at which PEM Entities purchased the loan as well as the fact that PEM Entities had decided not to foreclose immediately upon default. A number of other federal courts of appeals apply state-law-based tests for recharacterization that consider different factors. The district court and the 4th Circuit affirmed the bankruptcy court’s ruling based on precedent. PEM Entities filed a petition for certiorari; with an acknowledged circuit split over the competing tests for recharacterization, the case was a logical grant.

But, as is typical of bankruptcy cases, the particular dispute between the parties that formed the basis of the petition for certiorari was only one of several disputes among competing groups of claimants. After the case was granted, a member of PGOL acquired Levin and Shareff’s financial interest in the case as part of the settlement of a different case in state court. That settlement gave PGOL the right to defend Levin and Shareff’s recharacterization claim. That is, although it was originally one of the defendants in the case, PGOL, the debtor, assumed the plaintiff’s position in the dispute that the Supreme Court had agreed to hear. Just shy of a month after the Supreme Court granted the petition, PEM Entities and PGOL filed a joint “Motion to Confirm Party Status” explaining this change and asking the court “to confirm that PGOL … is a respondent in [the case], with a right to defend in this Court the judgment of the court of appeals.”

Although the parties changed, the merits of the case remained the same; PGOL appeared ready to champion the position that the court had been expecting the original respondents, Levin and Shareff, to take. Nonetheless, the court appeared to find the unexpected change a reason to dismiss the writ of certiorari. The Supreme Court seems to have become particularly wary of vehicle problems in recent years – as exemplified by a relatively new policy of relisting cases before granting certiorari noted on this blog by John Elwood. The justices seem to have decided that this case was not worth the risk of hearing argument if there was some chance it might have to be dismissed later.

Whether or not they intended it, the original respondents may have found a clever way to preserve their victory below: They made the case an intolerably complex vehicle after PEM Entities had prevailed in obtaining certiorari. Given how common and easy it is for parties in bankruptcy cases to sell their interests in particular claims, it remains to be seen whether this technique could become an effective strategy respondents in future bankruptcy cases can use to defeat certiorari after a grant.

The post Surprise dismissal of bankruptcy case seemingly prompted by change in claim ownership appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: Wechsler, history and gerrymandering

Symposium: Wechsler, history and gerrymanderingEdward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law. Will Gill v. Whitford get its “Wechsler brief”? In New York Times v. Sullivan, the Supreme Court received perhaps the most influential […]

The post Symposium: Wechsler, history and gerrymandering appeared first on SCOTUSblog.

Symposium: Wechsler, history and gerrymandering

Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law.

Will Gill v. Whitford get its “Wechsler brief”?

In New York Times v. Sullivan, the Supreme Court received perhaps the most influential brief in history. Herbert Wechsler, the renowned Columbia Law professor and author of the Model Penal Code (among many other accomplishments, including the famous “Fed Courts” casebook), had been hired by the newspaper to help defend against the libel charge filed in state court by an Alabama police commissioner. The Times had lost in the Alabama Supreme Court, and securing a reversal in the federal Supreme Court would be no easy feat.

Only a decade earlier, in Beauharnais v. Illinois, the Supreme Court had all but declared libel law off-limits to First Amendment protection. Justice Felix Frankfurter, widely regarded as an intellectual titan of his era, wrote that opinion. Although Beauharnais was technically distinguishable, the Times needed the Supreme Court to repudiate the jurisprudential presuppositions upon which it rested. Wechsler wrote a brief for the Times convincing the court to do just that. The court, by embracing Wechsler’s brief, converted it into the supreme law of the land, where it remains enshrined.

How did Wechsler do it?

He did it by reframing the relevant history. Beauharnais was premised on the fact that courts, going back to the origins of the country, had not recognized a First Amendment immunity in libel cases. That was true. But as Wechsler brilliantly argued, it was also beside the point. Because the plaintiff in the Times case was a public official, the relevant concept was seditious libel. The subject of sedition had been controversial since the founding. Specifically, the Sedition Act of 1798 deepened the emerging partisan rift between President John Adams and the Federalists, on the one hand, and Vice President Thomas Jefferson and the Democratic-Republicans, on the other.

The Supreme Court had never invalidated the Sedition Act on First Amendment grounds, a fact which would seem to support Frankfurter’s position. But the court also had never upheld the Sedition Act’s constitutionality, and Wechsler used that key point to turn the issue around. Although the status of the Sedition Act had remained ultimately unsettled in the judiciary, it had been ruled upon definitively in an even more important forum: the tribunal of historical judgment.

Here is how Wechsler’s brief put the point: “Though the Sedition Act was never passed on by this Court, the verdict of history surely sustains the view that it was inconsistent with the First Amendment.” This point became the centerpiece of the Supreme Court’s opinion in New York Times v. Sullivan: “Although the Sedition Act was never tested in this Court, the attack on its validity has carried the day in the court of history.” From this proposition, everything else flowed. The litany of cases cited by Frankfurter was superseded by this overriding historical judgment — a judgment that led the Supreme Court to protect the Times from a libel suit by a public official.

How is all this relevant to the issue of gerrymandering in Gill v. Whitford?

In Vieth v. Jubilerer, the Supreme Court’s previous gerrymandering case from a decade ago, Justice Antonin Scalia wrote an opinion not unlike Frankfurter’s in Beauharnais. Scalia’s main observation was that gerrymandering had been a prevalent practice going back to the founding and had not been rejected as unconstitutional by the courts. That observation is true as far as it goes, but (as Wechsler would say) it is beside the point. The judgment of history has been that gerrymandering is antithetical to the proper functioning of a free republic, which the Constitution (including its First Amendment) promises to secure.

In a recent law review article, I demonstrate that throughout the 19th century (including at the time of the 14th Amendment’s adoption), gerrymandering was judged to be an evil inconsistent with constitutional self-government. This is not to deny that gerrymandering was widely practiced. On the contrary, 19th-century politicians themselves recognized that gerrymandering was like alcohol abuse, from which they needed protection.

James Garfield, for example, while he was in Congress before he became president, denounced the “evil” of his own gerrymandered district, although fully aware that he personally benefited from “a large portion of the voting people” in his constituency being “permanently disenfranchised” by a “practice” incompatible with “representative government.” Politicians, in other words, routinely did it – maybe even couldn’t help themselves from doing it – but, like drinking too much liquor, succumbing to this temptation did not make it right. Rather, the prevalence of the practice only reinforced the need for a constitutional constraint, so that the ordinary operation of politics (including the politicians themselves) could be protected from this abuse.

Here is the relevant analogy to the Sedition Act: The fact that prosecutions of seditious libel are part of America’s past, and were not judicially invalidated at the time, does not make them any less unconstitutional. The past is messy, and even otherwise honorable statesmen – like John Adams or James Garfield – have acted unconstitutionally in the ordinary course of political competition against their partisan adversaries. Not everyone at the time agreed that the Sedition Act was unconstitutional; the Federalists vociferously defended it. Nor did everyone in the 19th century agree that gerrymandering was intolerable; Elbridge Gerry surely didn’t. But this lack of unanimity in the moment of political battle is hardly dispositive on the correct constitutional understanding of the matter.

Rather, the question is how history has come to judge the behavior that occurred as part of America’s inevitably impure past. Does history ultimately deem an activity to be constitutionally acceptable – on the right side of history, so to speak? Or, instead, does history ultimately condemn the activity as constitutionally unacceptable – on the wrong side of history?

The Wechsler brief, embraced by the Supreme Court in New York Times v. Sullivan, put seditious libel on the wrong side of history and thus, of necessity, constitutionally out of bounds. The same can be said of gerrymandering.

The Wechsler brief is relevant to Gill in another way. It used the historical condemnation of the Sedition Act as the foundation upon which to anchor the doctrinal edifice that courts would need to construct in order to evaluate the constitutionality of state libel laws. The Supreme Court couldn’t simply say that the Sedition Act itself was unconstitutional and leave it at that. The Sedition Act was not directly at issue in the Times case; it was a federal statute that had long since lapsed, and the Times was at risk of liability from a state libel law that did not specifically invoke the concept of sedition. But in crafting the doctrinal details for determining when a public official could hold a newspaper liable for the content of its publication – the required elements of the claim, the standard of proof and so forth – the Supreme Court’s analysis (as guided by Wechsler) was firmly rooted in the fundamental proposition that a state law having the same essential characteristics as the Sedition Act, and thus belonging in the same category, must be held unconstitutional.

The same judicial methodology is employable in Gill v. Whitford. In framing the doctrine to determine whether a redistricting map is unconstitutional, the Supreme Court can anchor its analysis in the longstanding historical condemnation of the original Gerry-mander. Just as the Sedition Act is the touchstone for determining what is an unconstitutional libel law, so is the original Gerry-mander the touchstone for determining what is an unconstitutional redistricting map. Indeed, as I explore in a contribution to a William & Mary Law Review symposium, the measurable degree of distortion in the district lines of the original Gerry-mander can be used as the constitutional benchmark for establishing a prima facie case that a modern map is equivalently improper. (This constitutional benchmark can serve as the “judicially manageable standard” necessary to overcome the “political question doctrine” concerns that were so prominent in Vieth and are at issue again in Gill.)

There is an added benefit to rooting the constitutional analysis of gerrymandering in this historical analysis – a benefit illustrated by the success of New York Times v. Sullivan as a Supreme Court opinion that has stood the test of time. In its understanding of the relevant history, Sullivan identified a truth about our national character: We are not a nation that thinks it legitimate to punish sedition. In identifying this truth and making it part of constitutional doctrine, the Supreme Court in Sullivan helped to strengthen this national character. The Supreme Court, in effect, helped the nation mature into the country it was struggling, but striving, to be.

The court can play the same role in the context of redistricting. Are we a nation where it is okay, or not okay, to manipulate a legislative map so that “in practice,” as future president Garfield put it, “a large portion of the voting people are permanently disenfranchised”? In answering this question, the court in Gill v. Whitford will be determining not just who we are now as a people, but who we will become over the coming decades.

When we look back on the half-century since Sullivan, we see a legacy in which the Supreme Court itself contributed to America’s growth as a people committed to political freedom. Sullivan is entrenched as precedent precisely because it is now indelibly part of our national self-understanding. For Gill to be successful like Sullivan, it too will need to become woven into our sense of America as a democracy. The way for Gill to accomplish this is to declare: “Although the original Gerry-mander was never tested in this Court, the attack on its validity has carried the day in the court of history.” If the court says this, then 50 years from now – thanks in large part to Gill itself – we may have matured into the genuinely representative democracy we are still striving to be.

The post Symposium: Wechsler, history and gerrymandering appeared first on SCOTUSblog.

from http://www.scotusblog.com