George F. Will: Justices should bet on federalism
On Monday, the Supreme Court will hear arguments concerning a law banning what millions of Americans do anyway: betting between $150 billion and $400 billion annually on sports events. The court need not and should not trouble itself with the question of whether this particular prohibition is sensible. It should, however, defend federalism by telling the national government to stop telling state governments what laws they cannot change.
Twenty-five years ago, gambling was rapidly becoming regarded less as a vice that state governments should discourage and more as a source of revenues that those governments would encourage. But in 1992, U.S Sen. Bill Bradley, D-N.J., a former college and NBA star who worried about gambling's possible corrupting effects on sports, authored the Professional and Amateur Sports Protection Act (PASPA). It says no government entity may “authorize” wagering on sporting events.
In a 2011 referendum, New Jersey voters authorized what their legislature did in 2014: partially legalize sports betting by repealing a law prohibiting such wagering at racetracks and casinos. The NCAA and pro leagues objected, saying New Jersey was violating PASPA. A federal circuit court agreed, rejecting the state's argument that PASPA violates the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”). The court said New Jersey's partial repeal affirmatively authorized sports wagering by directing it to particular venues, arguing that PASPA did not unconstitutionally “commandeer” state resources because it did not compel New Jersey to take a particular action or devote resources to administering federal choices.
An amicus brief supporting New Jersey argues that federalism precludes the national government from forbidding a state to pass a law “that neither violates the Constitution nor addresses any matter pre-empted by federal law.” Instead of prohibiting sports betting, Congress has paralyzed states, preventing them from changing laws that such betting violates, and effectively commandeering state resources to enforce a policy that the state dislikes. The brief also says: “Depriving the body that enacted a law of the ability to repeal or amend that law defeats the purpose of representative democracy.”
In 1993, 56 percent of Americans disapproved of legalizing sports betting; now, 55 percent approve. And legislation has been introduced in a dozen states to legalize sports betting if New Jersey wins. The pros leagues are recalibrating their thinking, partly because legalizing and regulating sports betting would make detecting suspicious surges of bets that might indicate rigged competition easier, and partly because wagering expands and intensifies fans' engagement. Bettors watch more NFL games, and for longer, than non-bettors.
Besides, the NFL is moving the Oakland Raiders to Las Vegas, built by gambling, where an NHL franchise is in its first season. The Supreme Court outcome is difficult to predict. It is, however, legal to bet on it.
George F. Will is a columnist for Newsweek and The Washington Post.