Event announcement

By on Aug 17, 2017 at 12:13 pm

On August 31 at 1 p.m., in a webinar conducted by the State & Local Legal Center, John Baker will discuss how local governments have modified sign codes over the past two years to comply with Reed v. Town of Gilbert and how courts have interpreted the Reed decision. More information and registration are available at this link.

 
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Steven D. Schwinn is a professor of law at John Marshall Law School in Chicago.

Students of the Constitution can be excused for scratching their heads at the anti-commandeering doctrine. That’s because this rule, which says that the federal government can’t require states or state officials to adopt or enforce federal law, has no basis in the text or history of the document. It has only weak support in precedent. And it’s unworkable.

Still, the doctrine is rearing its ugly head once again, this time in a pair of consolidated cases involving federal regulation of sports gambling. In particular, Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. NCAA raise the question whether the federal Professional and Amateur Sports Protection Act, which prohibits state-sanctioned sports gambling, runs afoul of the anti-commandeering doctrine when it prevents New Jersey from revoking portions of its prohibition on sports gambling. In other words, the cases ask whether the anti-commandeering doctrine prohibits the federal government not only from requiring states and state officials to adopt or apply federal law, but also from preventing states from repealing their own laws.

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Thursday round-up

By on Aug 17, 2017 at 7:39 am

In The Washington Times, Alex Swoyer reports that in an amicus brief filed this week in Carpenter v. United States, “[s]ome of the world’s biggest tech companies pleaded with the Supreme Court … to update decades-old precedent governing telephones, saying that cell-tracking technology threatens Americans’ most fundamental privacy rights.” Additional coverage comes from Andrew Chung at Reuters, who notes that “[t]he case comes amid growing scrutiny of the surveillance practices of U.S. law enforcement and intelligence agencies and concern among lawmakers across the political spectrum about civil liberties and police evading warrant requirements,” Steven Musil at CNET, and A.J. Dellinger at the International Business Times. At Reason’s Hit & Run blog, Damon Root argues that “’Get a warrant’ is the perfect message for the Supreme Court to tell the government in this case.”

Briefly:

  • In a book review at Jotwell, Steve Vladeck argues that the Supreme Court’s recent decision in Ziglar v. Abassi, “a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers,” “is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature.”
  • At Balkinization, Marty Lederman unpacks the federalism questions at the heart of Christie v. National Collegiate Athletic Association, in which the Supreme Court will decide whether a federal statute that prohibits New Jersey from repealing its ban on commercial sports betting is unconstitutional.

 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 16, 2017 at 10:22 pm

The petition of the day is:

17-95

Issues: (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1912(d) and 1912(f), applies in a private severance action initiated by one birth parent against the other birth parent of an Indian child; and (2) whether, if the sections apply in such an action, this de jure discrimination and separate-and-substandard treatment of Indian children violate the due process and equal protection guarantees of the Fifth and Fourteenth Amendments.

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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