Zachary S. Price is an associate professor at UC Hastings College of the Law.
Christie v. National Collegiate Athletic Association presents the question whether the federal Professional and Amateur Sports Protection Act impermissibly commandeers state legislatures by preventing them from “authoriz[ing]” certain sports gambling.
Another question, however, lurks in the background of that one: Are PASPA’s restrictions invalid because they apply only to some states and not others? Whatever the correct answer to the commandeering question, the answer to this second question is no. Doubts about PASPA’s overall validity should play no role in the Supreme Court’s decision in this case, because PASPA’s selective application to a subset of states is perfectly constitutional.
A few years ago, the Supreme Court famously embraced a principle of state equal sovereignty in Shelby County v. Holder. In that case, the court invoked a supposed “fundamental principle of equal sovereignty among the states” to invalidate the coverage formula for Section 5 of the Voting Rights Act of 1965. That law required covered states to obtain federal approval before enacting laws relating to voting. Characterizing this measure as “strong medicine,” the Supreme Court deemed it suspect because it applied only to some states and not others. Shelby County went on to hold that Section 5’s discrimination among states was insufficiently justified by “current conditions,” even though the Supreme Court had upheld the provision at other times in the past.
Four years earlier, the Supreme Court had floated this “equal sovereignty” idea in Northwest Austin Municipal Utility District Number One v. Holder. I published an essay in the NYU Law Review Online arguing that NAMUDNO’s equal-sovereignty principal was bunk. It still is, Shelby County notwithstanding.
Of course, the Constitution does guarantee the states certain forms of equality. Most significantly, it assures every state two senators. Hence, my state of California (with a population of 39 million) enjoys the glorious sovereign equality of Senate representation identical to Wyoming’s (population 590,000). In addition, the Constitution expressly bars unequal “Duties, Imposts, and Excises” and “Preference[s]” for one state’s ports over another’s. The 10th and 11th Amendments guarantee all states the same set of residual sovereign powers and the same sovereign immunity.
Under basic principles of textual interpretation, however, enumerating these specific forms of equality implies that Congress is not otherwise required to legislate equally for all states. What’s more, longstanding pre-Shelby practice and precedent bear out this inference.
As I explained in my essay, although a line of Supreme Court decisions did ensure that every new state entered the union on “equal footing” with its predecessors, the court applied this doctrine to invalidate laws that restrained new states in ways that went beyond what Congress could do to any state (old or new) through ordinary legislation. Thus, for example, in Coyle v. Smith, the court invalidated a state-admission condition that prevented the state from relocating its capital. In contrast, in other cases the court upheld conditions that treated states unequally but were rooted in Congress’ ordinary legislative powers.
As PASPA itself illustrates, many ordinary laws in fact have such unequal effects. For its part, PASPA prohibits sports gambling nationwide and bars states from authorizing it, but it expressly exempts states that had allowed sports lotteries or gambling before the law passed. The statute also gave New Jersey (and only New Jersey) one year to legalize certain sports gambling and thus escape the law’s strictures.
Laws like PASPA – and there are others (my essay and an article by Leah Litman each provide examples) – illustrate the mischief a broad understanding of equal sovereignty could cause. Perhaps not surprisingly, however, given the principle’s incoherence, no one seems to know just what Shelby County means or how it applies to laws other than the VRA.
Some commentary, most notably this thoughtful partial defense of equal sovereignty by Thomas Colby, has suggested that laws like PASPA are indeed suspect. Though rejecting any implication that state equal sovereignty requires “equal treatment in all respects,” Colby argues that the principle recognized in Shelby County should foreclose laws that expressly limit some states’ regulatory authority relative to others’. From that point of view, PASPA is suspect because it allows some states to permit sports gambling while preventing others from doing so. (This more recent essay offers another analysis of PASPA along similar lines.)
For all the reasons addressed earlier, I find this view unpersuasive as a matter of first principles. Congress includes exceptions of various sorts in statutes all the time; the Constitution gives no sound reason to think exceptions for particular states are suspect.
More to the point here, though, it is not at all clear that Shelby County used the term “sovereignty” in such a broad sense. After all, the Supreme Court in that case invalidated a selective restriction on states’ authority to alter voting rules and procedures. As the court emphasized in its opinion, voting laws are a “particularly sensitive area of state and local policymaking.” Federal statutes targeting such laws do not simply restrict state regulatory authority. Instead, they restrict state sovereignty in the more specific sense of impairing the state’s capacity to constitute itself as a sovereign governing authority in the first place.
The VRA’s means, moreover, were particularly demeaning to state authority. “States,” Chief Justice John Roberts wrote for the majority, “must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction [under other provisions of the VRA].”
Shelby County, then, need not imply that every impediment to state regulatory authority impairs state equal sovereignty. The decision might cast doubt only on laws that more directly interfere with selected states’ authority to constitute their own governing structures.
Alternatively, as Leah Litman has argued, the case might be understood to affect only laws that pose a particular affront to states’ equal dignity, as the VRA did by imposing intrusive burdens on particular states based on manifest suspicion of those states’ good faith. Either way, Shelby County’s equal-sovereignty principle does not necessarily call into question laws like PASPA that simply apply different regulatory requirements within different states.
In any event, even if laws like PASPA were suspect on equal-sovereignty grounds, there would be no reason to think the resulting heightened scrutiny should be fatal in fact. The Supreme Court found insufficient justification for the VRA’s coverage formula in Shelby County, but PASPA’s exceptions were generally designed to preserve existing sports betting in states that allowed (or sought to allow) such gambling at the time the federal legislation was adopted. Just as grandfather clauses and other exceptions to protect various forms of private reliance may be justified, a carve-out for states that relied in particularly pronounced ways on prior federal law should be constitutional.
Shelby County’s equal-sovereignty principle deserves the fate of all misguided precedents: a narrow construction that contains the damage and paves the way to overruling. Even taking Shelby County as a given, however, the decision need not cast doubt on PASPA’s validity. As the justices consider the commandeering issue presented in Christie, they should put aside any concerns about PASPA’s unequal application to different states.