Academic journal article Harvard Law Review

Tenth Amendment - Constitutional Remedies - Severability- Murphy V. National Collegiate Athletic Association

Academic journal article Harvard Law Review

Tenth Amendment - Constitutional Remedies - Severability- Murphy V. National Collegiate Athletic Association

Article excerpt

Severability--the notion that a court may excise an unconstitutional part of a statute while leaving valid portions intact--forms a core tenet of American constitutional law. (1) Courts have long maintained a strong presumption of severability, (2) premised on the rule that a court should not "nullify more of a legislature's work than is necessary." (3) A court should sever (4) a statute "[u]nless it is evident that the Legislature would not have enacted [the valid portions]" without the invalid portion. (5) Last Term, in Murphy v. National Collegiate Athletic Association, (6) the Supreme Court held that a provision of the Professional and Amateur Sports Protection Act (7) (PASPA) violated anticommandeering doctrine by prohibiting states from authorizing private sports gambling. (8) The Court declared inseverable portions of PASPA that prohibited states and private parties from organizing or promoting sports gambling. (9) Despite purporting to conduct a traditional severability inquiry, the Court made a number of subtle but significant departures from that inquiry. These changes may foreshadow a shift toward saving fewer schemes.

Fear that sports gambling would become widespread spurred PASPA's passage. Until the 1980s, only Nevada and New Jersey allowed casino gambling, but many states and Native American reservations soon legalized it. (10) Although sports gambling--betting on amateur and professional sports--remained legal only in Nevada, (11) it appeared likely to gain national acceptance (12) and many worried that this would corrupt sports leagues and increase gambling addiction among youth. (13)

Congress responded to these concerns with PASPA, (14) which banned states and individuals from operating sports-gambling schemes. First, PASPA [section] 3702(1) made it unlawful for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law" a sports-gambling scheme. (15) Second, [section] 3702(2) made it illegal for "a person to sponsor, operate, advertise, or promote, pursuant to the law ... of a governmental entity" a sports-gambling scheme. (16) The Attorney General or a sports organization could file suit to enjoin violations of the provisions. (17) The law allowed Nevada to maintain sports gambling and provided New Jersey one year in which to legalize it, but New Jersey declined. (18) Twenty years later, New Jersey's legislature reversed course and passed a law authorizing sports gambling. (19)

Professional sports leagues and the National Collegiate Athletic Association (NCAA) sued to enjoin the law as a violation of PASPA; New Jersey countered that PASPA was invalid because it violated anti-commandeering doctrine by prohibiting the State from legalizing sports gambling. (20) That doctrine prohibits Congress from issuing direct orders to states because Article I does not enumerate that power and the Tenth Amendment reserves all unenumerated powers to the states. (21) Although Congress can "requir[e] or prohibit[] certain acts," it cannot directly "compel the States to require or prohibit those acts." (22)

The district court found PASPA did not commandeer the State, (23) and the Third Circuit affirmed. (24) The panel reasoned that only an affirmative command, which forces the State to take new action (rather than refrain from acting), would constitute an anticommandeering violation, and PASPA did not impose such a command. (25) Moreover, the court concluded, a repeal of New Jersey's current prohibition on sports gambling would not constitute an "authorization]" in violation of PASPA. (26) New Jersey took up the Third Circuit's suggestion and repealed most of its prohibitions on sports gambling. (27) The same plaintiffs sued and the district court enjoined the new law after finding it preempted by PASPA. (28) The Third Circuit, in a divided panel (29) and then sitting en banc, affirmed. (30) The latter found the repeal constituted an authorization because it "selectively remove[d] a prohibition [and] permissively channel[ed] wagering activity," (31) but concluded that PASPA did not commandeer New Jersey because it issued no affirmative command. …

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