Today, the US Department of Justice filed a brief in the NCAA v. Christie case - the case that will decide whether New Jersey casinos and racetracks can offer sports betting. Some of our previous posts on the case are here, here, and here.
The DOJ argues that PASPA is constitutional for several resasons. First, the DOJ argues that the State's position with respect to the "anti-commandeering" principles of the Tenth Amendment is flawed. According to the DOJ, the Tenth Amendment's prohibition on "commandeering" - the principle that the federal government cannot directly compel the states to enact and enforce a federal regulatory program - only applies when states are actually required to act, not where they are prohibited from acting. The DOJ argues that anti-commandeering has been applied in a very small number of cases, and that this case is not an appropriate place to invoke it.
Turning to the Commerce Clause, the DOJ argues that Congress has wide latitude to regulate interstate commerce, and that sports betting is subject to such regulation. The DOJ also argues that the means-end fit between PASPA's provisions and its purpose is appropriate. In short, the DOJ argues that there is an appropriate, rational basis for Congress to have curtailed the spread of state-sponsored sports betting. Interestingly, the DOJ does not address the state's arguments regarding the substantial unlawful sports betting market.
For similar reasons, the DOJ argues that PASPA does not offend principles of due process and equal protection.
The state has the opportunity to file a reply by February 6, and oral argument will be held on February 14.