Sports betting advocates celebrated the Supreme Court justices' questioning at Monday’s arguments in Christie v. NCAA as a sign the odds were turning in favor of those who want to legalize sports gambling across the United States.
The American Gaming Association, the casino industry’s main lobbying group, said Monday’s arguments at the Supreme Court moved states “one giant step closer to offering a new product that Americans demand.”
“Today is a positive day for the millions of Americans seeking to legally wager on sporting events,” said group President Geoff Freeman. “While we can’t predict the intentions of Supreme Court justices, we can accurately predict the demise of the Professional and Amateur Sports Protection of 1992 (PASPA). The justices of the [Supreme Court] expressed deep interest in the role of the federal government — a role that we believe has created a thriving illegal market that has driven trillions of dollars to offshore websites and corner bookies.”
The justices reviewed New Jersey’s decision to repeal prohibitions on sports betting, which has pitted outgoing New Jersey Gov. Chris Christie against the National Collegiate Athletic Association and all of the nation's top professional sports leagues. Some of the justices’ remarks and questions appeared to show discomfort with allowing a federal law to tell states it cannot do something, such as stopping New Jersey from eliminating its sports betting restrictions.
Pre-emption gives federal law supremacy over state laws, but the anti-commandeering doctrine prevents the federal government from forcing states to adopt or enforce a federal law. At issue during Monday's oral arguments was whether the federal government could force states to not enact laws repealing restrictions provided by federal law.
Justice Elena Kagan and Chief Justice John Roberts pressed Paul Clement, a solicitor general under President George W. Bush, who argued for the NCAA against Christie. In response to questions about the difference between preemption and commandeering, Clement said the Professional and Amateur Sports Protection Act, or PASPA, regulated “sports gambling schemes,” not sports gambling itself, and thus Congress was furthering a federalism interest. Clement argued that the law did not require New Jersey to take action.
Congress passed PASPA in 1992, which made it illegal for states to "operate ... or authorize ... a lottery, sweepstakes or other betting, gambling, or wagering scheme based, directly or indirectly" on a competitive game featuring amateur or professional athletes.
Despite the federal law, New Jersey voters approved amending the state's constitution in 2011 to allow the state legislature to legalize sports betting. New Jersey lawmakers did so in 2012, but subsequently were challenged and lost in federal courts. After lower courts rejected New Jersey's arguments, the Supreme Court declined to review Christie's case.
Once the New Jersey legislature passed a law repealing certain prohibitions on sports gambling, the Supreme Court agreed to hear Christie's challenge, even as the Trump administration urged the justices to decline the case.
Christie, who had a front row seat for Monday's rumble, sounded none too pleased afterward.
“This is the fear of every governor — that we’ll be at the mercy of the federal government and that they’ll make us pay for it,” Christie told reporters outside the Supreme Court after the arguments. “It’s not right … today it’s sports gaming, tomorrow it’s something else.”
Ted Olson, another solicitor general under President George W. Bush, argued on Christie’s behalf that the federal law preventing New Jersey from stripping away certain prohibitions on sports gambling was unconstitutional.
Olson faced a flood of questions from the high court’s ideological left, with Justice Sonia Sotomayor appearing to wonder if it would not be easier for New Jersey to simply not enforce any laws restricting sports gambling.
“If every [governor] enforced every law on the books, the state would be bankrupt,” Sotomayor told Olson. “States make choices all the time.”
Olson replied that Sotomayor seemed to suggest governors did not have to enforce the laws, which would place states in a perilous position.
Jeffrey Wall, the assistant to the solicitor general for the Trump administration, slammed New Jersey’s argument and said the federal government would take no issue with the Garden State if it decided to repeal all of its prohibitions regarding sports gambling.
“You’re not serious,” Roberts interjected, suggesting the hypothetical of a 12-year-old being granted access to a casino.
“I’m very serious,” Wall replied, prompting Roberts to again tell Wall, “You’re not serious.”
“They’ve got a lot of options on the table,” Wall said about New Jersey’s ability to remove restrictions on sports gambling. “They just can’t do the one thing that Congress pre-empted [via PASPA].”