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Supreme Court Strikes Act Barring Legal Sports Gambling

Mark Mandell, Esq.

Much of the sports world is discussing the high court's significant decision on sports gambling released this week. In Murphy v. NCAA, the court was asked to determine whether the Professional and Amateur Sports Protection Act (PASPA) infringed on the state's legislative authority.

The state of New Jersey relied on the court's interpretation of the "anticommandeering" principle in past decisions to make its claim. The state argued that PASPA is flawed because "it regulates a state's exercise of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling."

The plaintiffs saw the relation of PASPA and the anticommandeering principle from a different perspective. They argued PASPA is different from past cases because "it does not command the states to take any affirmative act" and that "without an affirmative federal command to do something, there can be no claim of commandeering."

The high court agreed with the state in its majority opinion written by Justice Alito, stating that the provision of PASPA in question "violates the anticommandeering principle... it unequivocally dictates what a state legislature may and may not do." The opinion goes on to explain the significance of the limits of power identified in the tenth amendment. "...state legislatures are put under direct control of Congress. 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."

While the path has certainly been paved for states to craft their own sports gambling framework, it is important to note that it is incorrect to see this issue as the court determining that congress is incapable of prohibiting sports gambling. The opinion simply holds that the way in which PASPA currently prohibits sports gambling is unconstitutional. The federal government may not "commandeer" the state's legislative process as PASPA was found to have done. It is, however, specifically mentioned in the opinion that congress can regulate sports gambling directly. This would be done by way of regulating the individual rather than the state, but whether they elect to do so remains to be seen.

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