Jonathan Wood is an attorney at Pacific Legal Foundation, an adjunct fellow at the Property and Environment Research Center, and a blogger for libertarianenvironmentalism.com. He represents a coalition of libertarian-leaning groups as amici supporting New Jersey in Christie v. National Collegiate Athletic Association.

Can Congress dictate to states what their own laws must be? The Supreme Court agreed to decide that question in Christie v. National Collegiate Athletic Association, the latest iteration of New Jersey’s years-long effort to legalize sports betting and have the federal Professional and Amateur Sports Protection Act declared unconstitutional. The Supreme Court’s decision will have wide-ranging implications for federalism, particularly cooperative federalism, and political accountability.

The present conflict began in 2011 when New Jersey voters approved a referendum, by a whopping 2-1 margin, favoring the legalization of sports betting. Thanks in part to PASPA, which forbids states from “authoriz[ing]” this type of gambling, it is illegal to bet on sports in almost every state. Only those states that allowed sports betting in 1992, basically just Nevada, may retain it.

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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.

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Wednesday round-up

By on Aug 16, 2017 at 6:39 am

At BuzzFeed News, Chris Geidner reports that “[o]ne of the country’s top lawyers” has filed a cert petition on behalf of an Arizona death-row inmate who “has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder.” Additional coverage comes from Tony Mauro in The National Law Journal (subscription or registration required), who reports that “[f]ormer acting U.S. Solicitor General Neal Katyal is … asking the court to decide whether ‘the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.’”

Briefly:

  • In USA Today, Richard Wolf cites two upcoming Supreme Court cases, Husted v. A. Phillip Randolph Institute, which stems from a challenge to Ohio’s voter-roll purge, and Epic Systems Corp. v. Lewis, which asks whether mandatory-arbitration agreements that deprive workers of their right to collective proceedings are enforceable, as examples of the “Trump administration … switching sides in some of the nation’s most consequential legal battles.”

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Petition of the day

By on Aug 15, 2017 at 6:38 pm

The petition of the day is:

17-57

Issues: (1) Whether sales of energy through centralized market exchanges form direct contractual privity between buyers of that energy and the federal agencies selling it, such that the Court of Federal Claims has jurisdiction over a suit to recover overcharges from the federal agencies; and (2) whether petitioners were in privity with the federal power marketing agencies for those sales because the energy exchanges acted as the parties’ agents in facilitating their transactions.

Stacy Papadopoulos is general counsel and senior vice president of industry services at the American Gaming Association, which filed a cert-stage amicus brief in support of the challengers in Christie v. National Collegiate Athletic Association.

In 1992, Congress enacted the Professional and Amateur Sports Protection Act, which prohibits all but a few states from legalizing and regulating sports betting. A quarter of a century later, sports fans, state policymakers, the law-enforcement community and even some professional sports leagues agree that PASPA is misguided and failing. During its next term, the Supreme Court will decide whether PASPA is also unconstitutional.

There is no dispute that Congress could, as a matter of federal law, prohibit or regulate interstate sports betting, and in the process pre-empt any state law on the subject. But PASPA does not do that. Instead, PASPA forces states to continue prohibiting sports betting as a matter of state law – and, presumably, to enforce those prohibitions using state resources. State governments are required to maintain their sports-betting laws as they existed in 1992, but have no power to amend, strengthen or repeal those laws. The effect of PASPA has been to freeze in place state law as it existed in the early 1990s and to interfere with states’ police powers and authority to regulate local matters of economic development and public morality.

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Michael K. Fagan, an adjunct professor at Washington University Law, coordinates the Predatory Gambling Liability Project, a strategic litigation effort of the 501(c)(3) group, Stop Predatory Gambling. He served as a career federal prosecutor and as Special Attorney to U.S. Attorney General Janet Reno.

As its recent term drew to a close, the U.S. Supreme Court surprised many observers by agreeing to hear New Jersey’s and the commercial gambling industry’s appeals in Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA. The cases have been consolidated and will be argued together, most likely in the late fall or early winter. The cert grants came despite the U.S. solicitor general’s opposition and despite the Supreme Court’s fairly recent denial of cert to the same parties in an earlier iteration of the cases.

The consolidated cases involve defiance of a federal statute, the Professional and Amateur Sports Protection Act, by New Jersey and its controlling partner, the commercial gambling industry. PASPA prohibits states and individuals from actively taking steps to facilitate or engage in state-sponsored commercial sports gambling, and it explicitly bans states from authorizing or licensing such activities. Enacted in 1992, PASPA excluded from its prohibition the handful of then-existing state-authorized commercial sports-gambling schemes. These pre-existing configurations were not seen as threats to interstate commerce and the national economy in the same harmful ways or to the same extent as widespread commercial sports gambling. PASPA also provided that if New Jersey were to authorize commercial sports gambling in its Atlantic City casinos within one year of PASPA’s effective date, the exemption from PASPA’s prohibition would extend to that action; however, New Jersey did not act in time and its potential exemption expired.

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Tuesday round-up

By on Aug 15, 2017 at 7:02 am

Briefly:

  • Constitution Daily looks at three Supreme Court cases involving the Ku Klux Klan that posed “fundamental First Amendment questions about the ability of organized white supremacists to speak and demonstrate in the public forum.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro urges the Supreme Court to review a florist’s First Amendment challenge to a state antidiscrimination law, arguing that “[w]hile same-sex couples ought to be able to get marriage licenses—if the state is involved in marriage at all—a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.”
  • In an op-ed at STAT, Michael Burg weighs in on the court’s recent opinion in Bristol-Myers Squibb Co. v. Superior Court of California, in which the justices reversed a state court finding  specific personal jurisdiction over out-of-state plaintiffs in a multistate lawsuit, arguing that “[b]y foreclosing to plaintiffs state court venues other than those where [defendant] companies are ‘at home’ — generally meaning where they are headquartered or incorporated — the Supreme Court has placed an almost impossible burden on state court litigants.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on Aug 14, 2017 at 4:44 pm

The petition of the day is:

17-85

Issue: Whether a person in federal custody is entitled to file an application for habeas corpus under 28 U.S.C. § 2241 because a 28 U.S.C. § 2255 motion is “inadequate or ineffective” to permit him to raise a claim that his conviction or sentence is invalid under an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court.

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case this fall, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

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On the latest edition of our summer series, “In Recess,” Dan Epps and official guest host Leah Litman (filling in for Ian Samuel, who is enjoying a Croatian vacation) get you up to speed on what has been happening at the Supreme Court. We discuss some particularly interesting briefs that have been filed in pending cases, including the U.S. Department of Justice’s brief in Husted v. A. Philip Randolph Institute, in which the solicitor general’s office changed its views on an important voting-rights issue. We also discuss the unexpected developments in PEM Entities LLC v. Levin, a bankruptcy case that was going to be argued next term that was “dismissed as improvidently granted” last week. To help us make sense of that unusual order, and what might have prompted it, we bring in official First Mondays bankruptcy expert Danielle D’Onfro, who expands on her analysis of the order in her post last week. But that’s not all: We also have an interview with the great John Elwood, partner in Vinson & Elkins’ appellate practice group and creator of Relist Watch, an invaluable recurring feature on this blog.

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