Never Bet On Black (Robes), Governor

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December 9, Governor Christie announced he would take sports betting in New Jersey, which he signed into law last year, to the Supreme Court, challenging a 2-1 decision from the 3rd District Court of Appeals.  Ryan Hutchins at the Star-Ledger argues the “clock is running out” on New Jersey’s attempts to legalize sports betting, which had massive support from the people, the Democratic legislature and the Republican governor.

Governor Christie has until mid-February to file an appeal with the Supreme Court.  Both the governor and Mr. Hutchins are mistaken when they say the Supreme Court is the only option left.  The majority and dissenting opinions on the District Court decision both give a degree of insight into the other options available to the legislature and the governor.

Lawyers for New Jersey argued the 1992 Professional and Amateur Sports Protection Act (PASPA) is unconstitutional, violating the 10th Amendment and “commandeering” the state legislature.  The judges issuing the majority opinion in the 2-1 decision state it is “hard to see how Congress can ‘commandeer’ a state, or how it can be found to regulate how a state regulates, if it does not require it to do anything at all.”  Interesting words from our state’s lawyers, as well as from the judges, as the anti-commandeering doctrine, upheld by the Supreme Court throughout the history of the United States, has come up a lot at the Tenth Amendment Center, whether discussing the NSA wiretapping, gun control, health care or a host of other issues.  The anti-commandeering doctrine states that the federal government cannot force the states to assist federal agents in violating our rights.  Writing the dissenting opinion, Justice Thomas Vaskie said the act “prohibits states from authorizing sports gambling and thereby directs how states must treat such activity.”  Three judges in their opinions have unwittingly given such an obvious hint as to what needs to be done to nullify PASPA that even a New Jersey politician ought to be able to see it.

Unlike most federal legislation, PASPA is brief.  There is not a line in it requiring state or local governments to assist in any investigation or enforcement of federal bans against sports betting.  Such a statute simply does not exist.  There is no commandeering of the legislature or of state/local resources of any kind, only the claim that New Jersey cannot legalize sports betting.  The majority opinion of the court, despite opposing our state’s self determination on this issue, is correct.  If Trenton or our county or municipal governments do nothing, it will be up to the federal government to enforce their ban on sports betting.  Let them try.

To the legislators, if you still feel the need to give our state and local agencies more protection in the spirit of the anti-commandeering doctrine, go ahead and introduce a bill forbidding them from enforcing this federal statute.  Pressure the governor, and support him in refusing to comply with federal demands if he should have the courage to do so.

Governor Christie, the 3rd Circuit gave you a sure bet on how to nullify PASPA.  Here, you have an issue where you have tremendous popular support and a great deal of agreement in the legislature.  Don’t take your political clout and bet it all on the say so of nine black robed individuals who seem to think their word is law for over 300 million people.  You have the right horse, and it’s chomping at the bit to show you what it can do if you’ll let it out of the starting gate.  That horse’s name is Nullification.  Will you back that horse, or waste a bet on Black Robes?  It’s your choice, Governor.

Benjamin W. Mankowski, Sr. [send him email] is a blogger with the Tenth Amendment Center. He writes from New Jersey.

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