Constitutional Law - Tenth Amendment - Third Circuit Holds That PASPA Is an Appropriate Exercise of Congressional Power

Article excerpt


Under the Tenth Amendment's anticommandeering principle, the federal government may not take control of any state's legislative processes in order to compel a state to enact or enforce any federal policy or regulatory program. A central aim of this doctrine is to prevent federal officials from escaping political accountability. By commandeering states to create and enforce federal government programs, federal officials may avoid the political consequences of their policy choices by subjecting state officers to that fallout. In National Collegiate Athletic Ass'n v. Governor of New Jersey (1) (NCAA), the Third Circuit held that Congress's prohibition on sports gambling permissibly invalidated New Jersey's legalization of that same activity. (2) However, the court's analysis did not consider whether the congressional ban implicated the political accountability rationale. Given the facts of the case, this omission improperly diminishes the normative value of accountability in deciding this anticommandeering case and creates a precedent that is in tension with both the Supreme Court's general view and the views of other circuits.

In 1992, Congress passed the Professional and Amateur Sports Protection Act (3) (PASPA). PASPA makes it illegal for states to authorize a sports-wagering system, but includes a grandfather clause that exempts states with preexisting sports-gambling programs from compliance with the law's restrictions. (4) The law also granted New Jersey a one-year window to legalize sports gambling, (5) an option the state did not exercise. (6) Nearly twenty years later, the citizens of New Jersey approved a referendum that amended the state constitution to permit the legislature to authorize sports wagering. (7) Pursuant to the amendment, on January 17, 2012, New Jersey enacted the Sports Wagering Law, (8) which authorized state agencies to issue licenses for sports gambling in casinos and for sports pools in casinos and racetracks. (9) Following these actions, numerous sports leagues (10) sued the Governor of New Jersey and other state officials to prevent the implementation of this law. (11)

The District Court for the District of New Jersey found that PASPA was a valid use of Congress's Commerce Clause power since the spread of legalized sports gambling sufficiently implicated interstate commerce. (12) The court rejected the defendants' contention that the Act unconstitutionally commandeered New Jersey to prohibit sports betting by finding both that PASPA did not affirmatively compel the State to take any legislative, executive, or regulatory action, (13) and that the law did not implicate the political accountability aspect of the anticommandeering principle. (14) Further, the court found no due process or equal protection violation under rational basis review. (15) The district court then granted the plaintiffs' motion for summary judgment and issued a permanent injunction against the State to prevent implementation of the Sports Wagering Law. (16)

A three-judge panel of the Third Circuit affirmed the decision. (17) Writing for the panel, Judge Fuentes (18) first established that the sports leagues had standing to sue. (19) Moving to the merits, Judge Fuentes found that PASPA was within Congress's Commerce Clause power since both gambling and sporting events were economic activities that substantially affected interstate commerce. (20) Next, Judge Fuentes examined whether PASPA violated the anticommandeering principle by reviewing the Supreme Court's anticommandeering cases: New York v. United States (22) and Printz v. United States. (21) In New York, the Court struck down as coercive a statutory provision that compelled the states to either enact a regulatory program or to take title to low-level radioactive waste. …


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