The Tenth Amendment helps to define the principle of federalism, the relationship between the federal government and the states. It provides that if the U.S. Constitution does not delegate a power to the federal government, or take that power away from the states, then that power is reserved for the states or for the people themselves. The Supreme Court has rarely declared laws unconstitutional for violating the Tenth Amendment, but it has done so in cases where the federal government “commandeers” the legislative processes of the states by compelling them to enforce federal statutes (referred to as the “anti-commandeering doctrine”). In a recent decision, Murphy v. NCAA, Nos. 16-476, 16-477 (May 14, 2018), the Supreme Court ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine.
The federal law at issue in this case was the Professional and Amateur Sports Protection Act (PASPA), which was enacted in 1992. The law banned most states from authorizing sports betting, but it carved out an exception permitting New Jersey to set up a sports-betting scheme in the state’s casinos, so long as the state did so within one year. Twenty years later, in 2012, the New Jersey state legislature passed a law that legalized sports betting. The National Collegiate Athletic Association (NCAA) and four other major professional sports leagues brought suit, arguing that the 2012 law violated PASPA. The lower federal courts agreed, prompting the New Jersey legislature to try again. In 2014, the legislature passed a new law that repealed existing bans on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and other leagues once again sued, arguing that the new law also violated the PASPA. The Court of Appeals for the 3rd Circuit again ruled against New Jersey.
Supreme Court’s Decision
The Supreme Court granted certiorari to consider New Jersey’s constitutional challenge to PASPA, and reversed the Court of Appeals’ decision. Justice Samuel Alito delivered the opinion of the Court, in which the majority agreed that the provision of PASPA that the state challenged, which barred states from authorizing sports betting, violated the anti-commandeering doctrine as it “unequivocally dictate[d] what a state legislature may and may not do” and was a “direct affront to state sovereignty.” Having determined that this specific PASPA provision was unconstitutional, the Court then turned to the question of “severability,” i.e. whether the rest of PASPA was to be struck down as well or simply enforced without the anti-authorization provision. The majority held that the whole law should be struck, reasoning that if the bar on states authorizing sports betting was invalid, it would be “most unlikely” that Congress would want to continue to prevent the states from running sports lotteries, prohibit private parties from operating sports-betting schemes, or forbid the advertising of sports betting.
In a concurring opinion, Justice Clarence Thomas made clear that he joined the majority’s decision to strike down all of PASPA, but he suggested that the court should, at some point in the future, reconsider its “dubious” severability doctrine. Further, Justice Ruth Bader Ginsburg filed a dissenting opinion, which was joined in full by Justice Sonia Sotomayor and joined in part by Justice Stephen Breyer, that argued that, even if PASPA’s anti-authorization provision was held unconstitutional, the rest of the law should have remained in force. Ginsburg emphasized that “[o]n no rational ground can it be concluded that Congress would have preferred no statute at all if it could not prohibit States from authorizing or licensing such schemes.”
Legal battles over federalism are sure to continue, but the ruling in Murphy v. NCAA may be a step in the direction of stronger enforcement of constitutional constraints on federal power. This decision could have a broad reach, potentially affecting a range of topics. Not only is the door now open for states to allow sports betting, but this decision could give significantly more power to states in general. For example, recent challenges to the federal government’s efforts to implement conditions on grants for state and local law enforcement in “sanctuary cities”—cities that refuse to cooperate with federal immigration officials to enforce immigration laws—have cited the Tenth Amendment. Additionally, the Tenth Amendment may also be used to challenge the federal government’s recent efforts to enforce federal marijuana laws in states that have legalized marijuana for either recreational or medicinal use.