Here's What That Supreme Court Decision About Sports Betting Actually Does

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There are wiser ways to start an article about sports betting than this but still, I have to warn you: Murphy v NCAA—Monday’s Supreme Court decision that freed New Jersey to allow casinos and racetracks to open sports books—is boring as hell. I’ll do what I can to overcome this burden, but there is only so much that can be done. Yes, this involves people being able to bet money on sports, and is definitely fun—word of warning to anyone whose interest has been piqued, you can actually lose money doing this—but the case itself turns on abstruse principles of federalism and not anything cool like odds or vigs or earth-shattering dunks. It’s just a bunch of nerds parsing things finely, after all.

To lay out the basics: Back in 1992 Congress passed, and President Bush the Elder signed, the Professional and Amateur Sports Protection Act (PASPA), a cheerfully naive attempt to pretend that legal sports betting would “change the nature of sporting events from wholesome entertainment for all ages to devices for gambling.” At the time, just four states allowed sports betting—Nevada, obviously, but also Delaware, Montana, and Oregon, which ran state sports lotteries. Those states were grandfathered in.

New Jersey was considering allowing sports books to open in Atlantic City casinos at the time, so PASPA gave them a year to get their legislative shit together so that they might also be grandfathered in. Jersey ultimately passed on the opportunity, but after roughly 20 years of Atlantic City getting battered by tribal gaming and Donald Trump’s debt boondoggles and literal hurricanes, then-Governor Chris Christie decided that he wanted AC to have sports betting after all. Alas, the federal government was no longer keen to open up the law to any more betting on sports. Whether this is due to a strong moral conviction against vice or the aggressive and constant lobbying of the NCAA and professional sports leagues I will leave as an exercise to the reader, but also in case you are dumb, it was definitely the lobbying.


As even casual followers of politics already know, Christie has never let anyone say no to him without being a big baby about it, and so he and the rest of New Jersey went ahead and repealed the state prohibition on sports gambling anyway. The state did so in a very specific way that limited the right to run a sports book to people already licensed for gambling by the state. Finding their lobbying money suddenly and disturbingly squandered, the NCAA sued New Jersey to enjoin the repeal of their prohibition on gambling on the grounds that it was prohibited by PASPA. To be clear, because this comes up later, PASPA has two main provisions: Section 3701(1), which prevents states from sponsoring or permitting or promoting sports betting and Section 3702(2), which makes it illegal for individuals to do the same thing if a state ignores the first part and allows sports betting anyway. Because New Jersey law now “permitted” sports betting, the NCAA challenged New Jersey’s right to do that.

New Jersey defended its new law primarily under the “anti-commandeering doctrine.” At its simplest, the anti-commandeering doctrine says that while Congress can pass laws within its enumerated powers that preempt state law in various ways—say, through exclusive regulatory authority on immigration or pensions—they can’t literally direct a state to do something. This is why Trump can go ahead and get really mad online about sanctuary cities but can’t actually do anything about those infuriating sanctuary cities beyond live-tweeting Fox News segments about how infuriating they are. Basically, San Francisco can’t keep ICE from arresting people, but also ICE can’t force SFPD to arrest anyone on an ICE warrant. The last time this made it to SCOTUS, it was when the federal government tried to pass off the responsibility and expense for doing background checks on gun purchases to local police. Good federalists that they are, the anti-commandeering doctrine is the kind of thing that the current SCOTUS majority likes.


Anyway, the NCAA and the feds tried to defend PASPA by saying that the law didn’t require New Jersey to do anything, because sports betting was already illegal. It only required New Jersey to freeze its laws and never change them. This distinction without a difference is exactly as stupid as it sounds, but for some reason the lower courts bought it. Even Justice Ginsburg’s dissent doesn’t bother arguing that this is a reasonable reading of the anti-commandeering doctrine. The NCAA made other similar arguments along these lines, but you don’t want to hear them and also the Court brushed them off for roughly the same reasons.

After this, the case gets a even more obscure, because once the Court decided, more or less by acclimation, that after striking the part of 3702(1) keeping New Jersey from “allowing” sports betting, the next question for the Court was what about the rest of the statute, like whether states could “sponsor” sports lotteries, or Section 3702(2), which said “even if the states happen to make this legal for an individual to do this, you still definitely can’t.” This part broke the Court into four different opinions, and friends if you think anti-commandeering doctrine is tedious, wait until I tell you about severability. I will do this one in bullet points:

  • Alito, with Roberts, Kennedy, Thomas, Kagan, and Gorsuch agreed that if Congress knew the challenged parts of 3702(1) were unconstitutional, they never would have passed the rest of the statute, and therefore the whole thing is also unconstitutional. The analysis the majority engages in here is an extended counterfactual hypothetical that is effectively SCOTUS saying “nah.” Six votes, though.
  • Thomas, in his quirky tricorn-hat way, concedes that Supreme Court precedent operates basically the way Alito says it does, so he joins the majority opinion, but then spends the better part of five pages on an interesting philosophical argument that the entire doctrine of severability and the ways in which courts invalidate statutes—and have done since roughly the late 1800’s—is incompatible with textualism, standing, and the separation of powers. It would make a good law review article but also even the rest of the Supreme Court will never care, so let’s just consider it noted.
  • Breyer agreed with Alito on everything but the severability of 3702(2), so he wrote about that for a little bit, but he basically just agrees with Alito on the main challenge but with Ginsburg on severability.
  • Ginsburg and Sotomayor argue that since the federal government can clearly prohibit sports betting under the interstate commerce clause, 3702(2) is a reasonable exercise of that power, has an independent logic, and is therefore severable and constitutional.

One thing everyone agrees with, though, is that if Congress wanted to make sports betting illegal—which, contra whatever tweets you’ve seen, this decision does not do—it absolutely could. Some justices would quibble about what constitutes interstate commerce, the same way they argued about it in the context of intrastate marijuana farming for legal medical use, but in general, the federal government can make sports betting illegal, but it can’t make the states make sports-betting illegal under state law.

The upshot here is this: after the decision, two types of lawyers immediately sprung into action. First, every casino and racetrack operator in New Jersey started working on a license application to the New Jersey Gaming Commission to add a sportsbook. Second, the NCAA and every professional sports league in the country—possibly over Mark Cuban’s objection—have reengaged the lobbyists that pushed PASPA through the first time. This time, though, the ask is bigger: they’re going to ask Congress to pass a broad federal anti-sports gambling prohibition. For the integrity of the game. For the children. For ... well, you already know why.


Charles Star is a Brooklyn-based lawyer, a once and maybe future comedian and the host of Mic Dicta, America’s Best-Named Legal Podcast. He tweets at Ugarles.