Academic journal article Northwestern Journal of Law and Social Policy

Reverse Line Movement: How the Third Circuit's Decision in National Collegiate Athletic Association V. Governor of New Jersey Contravenes the Anti-Commandeering Doctrine

Academic journal article Northwestern Journal of Law and Social Policy

Reverse Line Movement: How the Third Circuit's Decision in National Collegiate Athletic Association V. Governor of New Jersey Contravenes the Anti-Commandeering Doctrine

Article excerpt

INTRODUCTION

As many bettors will tell you, sports gambling is a complex endeavor. In an industry that generates more than three billion dollars annually from Nevada casinos alone,1 bettors perpetually search for an evaluative edge over bookmakers. Historically, the most successful handicappers2 in sports gambling have been those who consistently apply a set of clearly defined principles.3 But figuring out exactly what rules to use, and how to use them, is no easy task when gambling, or in determining the legality of sports gambling.

One recent Third Circuit ruling blocked New Jersey's attempt to legalize sports gambling by upholding the Professional and Amateur Sports Protection Act (PASPA). 4 The decision questions the controlling analytical framework for one of the most significant modern developments of constitutional law: the anti-commandeering doctrine.5 Nonetheless, the U.S. Supreme Court denied certiorari and allowed the Third Circuit's interpretation of the anti-commandeering doctrine to stand. In doing so, the Court significantly hedged on the doctrine's utility.

This Note addresses the consequences of the Third Circuit's decision to uphold the affirmative mandate requirement in PASPA,6 concluding that PASPA does not comport with the anti-commandeering doctrine. Part I begins with an analysis of the case underlying the Third Circuit's ruling and PASPA's legislative background. Part II explores the genesis and evolution of the anticommandeering doctrine through three important Supreme Court cases.7 Part III sets out an argument for why PASPA's affirmative mandate requirement is unsupported by precedent and inapposite to the anti-commandeering doctrine on textual, intentionalist, and structural grounds. Part IV examines consequences that might arise if courts are asked to enforce federal bans that prevent state governments from regulating citizens' conduct. Finally, Part V concludes that the U.S. Supreme Court erred in passing on the opportunity to reject PASPA's affirmative mandate requirement.

I. BACKGROUND

In denying certiorari, the Court declined an opportunity to define the contours of the anti-commandeering doctrine by failing to explicitly reemphasize its analytical test: whether Congress seeks to control or influence the manner in which states regulate citizens' conduct.8 This test reflects the approach of scholars who urge the Court to impose a heightened level of scrutiny for congressional acts that allow Congress to control or influence state legislatures. 9 Heightened scrutiny in this context would add another prophylactic layer against federal commandeering to protect the underlying principles of federalism embodied in the Tenth Amendment.

A. New Jersey's Referendum to Legalize Sports Gambling and the Professional and Amateur Sports Protection Act

In 2011, New Jersey citizens voted in favor of a nonbinding referendum to repeal a state law prohibiting sports gambling within state borders.10 The referendum was the only measure to appear on the ballot; it passed with a commanding consensus at the polls and amended the state's constitution. "'The voters beat the over-under,'" said New Jersey Senator Raymond Lesniak.11 "'It was a bigger win than we expected. There's a strong momentum to fight the federal ban in New Jersey.'"12

Senator Lesniak was referring to PASPA, which Congress passed in 1992 to ban states from regulating sports gambling. 13 PASPA passed because Congress wanted to prevent state legislatures from attempting to repeal their own widespread bans on sports gambling.14 Before PASPA passed, however, the U.S. Department of Justice opposed the bill due to a concern that the bill implicated significant federalism issues by indirectly promulgating a federal ban on states' legalization of sports gambling.15

Notably, PASPA does not prohibit sports gambling by making it a violation of federal law.16 PASPA prevents "state governments from changing their state laws to legalize sports wagering-effectively freezing in place pre-existing state-law prohibitions. …

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