In a 6-3 decision earlier this week, the United States Supreme Court struck down the Professional and Amateur Sports Protection Act (“PASPA”), finding that the legislation violated the anticommandeering doctrine of the U.S. Constitution. Murphy v. Nat’l Collegiate Athletic Assn. et al., 2018 WL 2186168 (U.S. May 14, 2018). The case arose after New Jersey voters approved a state constitutional amendment which would give the state legislature the authority to legalize sports gambling in Atlantic City and at horseracing tracks. The New Jersey legislature subsequently enacted the legislation and the NCAA sued to enjoin the law on the basis that it violated PASPA.

PASPA makes it unlawful for a State or its subdivisions “to sponsor, operate, advertise, promote, license, or authorize by law or compact…a lottery, sweepstakes, or other betting, gambling, or wagering scheme based…on competitive sporting events.” 28 U.S.C. § 3702.¹ The Court analyzed whether the prohibition imposed on the states was consistent with the notion of dual sovereignty embodied in the Constitution. Specifically, the Court considered whether PASPA violated the anticommandeering doctrine, which withholds from Congress the power to issue orders directly to the states.

The anticommandeering doctrine’s limit on congressional authority preserves dual sovereignty. Under the doctrine, Congress cannot take over the legislative process of states by compelling the states to enact and enforce a federal regulatory program. Moreover, if a federal interest is strong enough to be legislated by Congress, Congress must enforce it directly rather than make states the agents of enforcement. In Murphy, the Court held that PASPA directly violated the anticommandeering doctrine by prohibiting state authorization of sports gambling. The Court found the statutory scheme in PASPA unconstitutional because the legislation enforces prohibitions against state legislatures instead of individuals. “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” Murphy at *13.

The Supreme Court has not opened the floodgates for sports gambling by overturning PASPA; the Court has merely opened the door to a new legal playing field. As stated by the Court, Congress may seek to regulate sports gambling directly (with other legislation directed at individuals, not states), but if it does not, each state may enact its own legislation. The death of PASPA likely will result in dialogue about the appropriateness of sports gambling, along with the introduction of new legislation at the state level addressing the permissibility of betting on amateur, professional and college level sports.