After Supreme Court hearing the end of PASPA may be near
There has always been a belief in the industry that the Republicans had been holding back any expansion of gambling. After all, they are closely associated with the evangelical churches that do not support gambling and most of the anti-gambling legislation of the past 2 decades has been introduced by Republicans on the Hill. The first to pass a bill was John Kyl with the Internet Gambling Prohibition Act. That was followed by Robert Goodlatte and Jim Leach with companion bills and later by Bill Frist who attached the UIGEA to the Safe Port Act. And most recently Jason Chaffetz and Lindsay Graham introduced RAWA to appease Sheldon Adelson. So, when the Supreme Court agreed to hear New Jersey's case to overturn PASPA it was just assumed that a decision at the court would be made along partisan lines. And indeed, that appears to be the case. Surprisingly, however, the main objectors to a repeal of PASPA on SCOTUS seem to be Democrats. After hearing the questions and speeches by all the justices (except Clarence Thomas, who, as usual, said nothing), it has become very clear that there is much more skepticism by Democrats than the Republicans on the bench.
The case to overturn PASPA on behalf of the state of New Jersey and the New Jersey Thoroughbred Horseman's Association was argued by Theodore Olson, while the sports leagues, which are the opponents to a repeal, was argued by Paul Clement. Olson, as expected, argued that PASPA is unconstitutional because it commanded states to enforce a federal law that doesn't benefit the state and that they don't agree with. Olson noted that in 2012, following a New Jersey referendum in which 2/3 of the populace voted to authorize sports betting at casinos and race tracks to help their struggling business, the state was blocked from enacting that law by the Third Circuit court because it violated PASPA. It then tried to repeal laws on the books that prohibited sports betting at race tracks and casinos but again the court shot it down, saying that if it was going to repeal a law it had to repeal the whole thing and not a specific section. Olson's argument to the court was as follows:
"If there is an order from a federal court saying that the legislature, having repealed a statute, must un-repeal it, put it back on the books. And what you're saying is that the governor doesn't have to enforce that law. It's a law on the books of New Jersey. The governor and executive branch of New Jersey officials have taken an oath to uphold the laws of the state of New Jersey, and here is a federal court that comes along and basically says we're going to order the statute to be back on the books, but just forget about it.
This is a very, very strange situation"
Olson also noted that if Congress wanted to completely ban sports betting in 1992 it could have done so and by stating that sports betting was banned everywhere and putting in regulations to enforce it. Instead it just passed the law but left the dirty work of setting regulations up to the states and took no responsibility or cost for enforcement.
"PASPA is a direct command to the states without any effort to regulate sports wagering." Olson stated. He also noted that the title of the law "an act to prohibit sports betting under state law," is a clear violation of the 10th amendment.
Clement, on the other hand, suggested that Olson's arguments weren't true. Clement argued that the states weren't required to do anything under the law in terms of enforcement and they could decide not to enforce any regulations under the law (which New Jersey acknowledged was a nuclear option). But what they can't do is allow sports betting at racetracks and casinos, but not elsewhere:
"We think that, if New Jersey wants to say we're going to lift all our prohibitions, we think, at least as to that law, it would not be pre-empted by PASPA as written."
Anthony Kennedy, a Republican justice appointed by Gerald Ford in 1988 immediately came to the defense of the Olson's arguments saying that PASPA "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 does not want but that the federal government compels the state to have." Kennedy clearly opposes PASPA as he was trying to defend Olson's arguments from the outset of the hearing and made it evident he views PASPA as an affront to federalism.
Chief Justice John Roberts, appointed in 2005 by George W. Bush, also seemed to side with Olson and New Jersey as well by constantly challenging the notion that PASPA was intended to ban sports betting forever. Roberts noted that if that was Congress' intent the law would have stated such. Instead it left enforcement and regulation up to the states. He also noted that the state and federal laws were conflicting.
Justice Samuel Alito, appointed by George W. Bush in 2006 also seemed to side with Olson and the state by agreeing with Roberts on the notion that the laws were conflicting but moreover challenged the purpose of the law in the first place:
"Congress could have prohibited gambling enterprises itself. No question it could have done that, assuming it's within the Commerce Clause. What policy does this statute serve that that would not?"
Neil Gorsuch, who was just appointed by Donald Trump was harder than the others to get a feel for. His questions challenged both sides, although his questioning to Olson on why he abandoned part of his original argument on statutory grounds seemed to indicate he was leaning to New Jersey. When Olson explained why they chose not to continue with that argument following the Third Circuit Ruling, Gorsuch responded:
"But you -- you'd take a win on statutory grounds, wouldn't you?"
One must wonder if that means he agreed with Olson's original reasons for challenging PASPA and will use those reasons in making his judgement.
The one Democrat that was clearly in favor of New Jersey's arguments was Stephen Breyer who was appointed in 1994 by Bill Clinton. Breyer came to the defense of Olson and even helped him with his argument:
"Now, I think what you actually say is the federal government makes a determination of what interstate commerce will be like in respect to this particular item. It can do that, we -- including a determination, it shouldn't be -- that's a determination, okay? Once it makes that determination, it an forbid state laws inconsistent with that determination. That's called pre-emption. But what it can't do is say that our determination is that the states roughly can do it as they want, but they can't do it that way; for to do that is to tell the state how to legislate, in which case, it is the state and not the person who becomes the subject of a federal law." To which Olson replied, "I wish I had said that myself."
On the other side of the bench Justice Elena Kagan and Justice Sonia Sotomayor, both appointed by Barack Obama, were clearly not interested in changing the law. Kagan argued over and over that PASPA was not unconstitutional because it was not commandeering states to enforce laws but was rather pre-empting states from harming themselves by violating a federal law. And Sotomayor was combative with Olson and suggested it was not only the right but the duty of the federal government to pass laws that would prevent states from enacting and promoting a law that could harm the public - equating sports betting to hard drugs:
"So why don't we legalize -- this is a hypothetical -- marijuana - and all drugs, because there's a rampant market out there for those drugs - but we've made a policy choice that we don't want the state involved in promoting that type of enterprise."
As for the other judges, Clarence Thomas, who was appointed by George H. Bush in 2001, will almost certainly side with New Jersey, since he always votes for federalism and Ruth Bader Ginsburg, appointed by Bill Clinton, will likely vote for the sports leagues and to keep PASPA given that her questions seemed to indicate a belief that the law as written is constitutional because New Jersey can simply not enforce the laws, but it can't repeal only a portion of the law. It wouldn't be shocking, however, if she sides with New Jersey in the end.
So, if my observations and calculation are correct, SCOTUS will vote to repeal PASPA by a 6-3 count with the three opposing votes cast by the female Democrat justices on the bench. There is also a possibility Gorsuch will vote to oppose New Jersey as well making it a 5-4 margin. Either way it appears that the end of PASPA is near. The only question at this point is whether it will be left up to the states to pass their own rules or whether there will be some rules that will apply to all states such as a ban on amateur sports betting to appease the NCAA.