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Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrine

Elbert Lin is the solicitor general of West Virginia. Thomas M. Johnson Jr. is the deputy solicitor general of West Virginia. The attorney general of West Virginia, Patrick Morrisey, led a certiorari-stage amicus brief in support of the petitioners.

Christie v. National Collegiate Athletic Association has the markings of a sleeper blockbuster. The Supreme Court granted certiorari despite the absence of any circuit split and over the opposition of the United States, which had been asked by the court for its views. The parties and their counsel give the case an Ali-Frazier feel. New Jersey Governor Chris Christie versus the National Collegiate Athletic Association and all four major professional sports leagues (the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball). Former U.S. Solicitor General Ted Olson versus his successor (and his principal deputy) Paul Clement. For Supreme Court junkies, you don’t get much closer to the Thrilla in Manila. And though our briefs take no position on the policy of legalizing betting on professional and collegiate sporting events, there is no denying that the court’s decision could have significant real-world effects on that industry.

The reason we, as representatives of our state, are watching the case? It could be the first Supreme Court decision since Printz v. United States in 1997 – and only the third in the court’s history — to strike down an act of Congress for violating the 10th Amendment under the anti-commandeering doctrine. In the decision under review, the en banc U.S. Court of Appeals for the 3rd Circuit held that the Professional and Amateur Sports Protection Act of 1992 bars states that have existing state-law prohibitions on sports betting from changing those laws to allow some betting. The Supreme Court could, and should, hold that the 10th Amendment doesn’t permit Congress to exercise that kind of direct control over state law and legislatures. That is a holding that should be welcomed by most states, whether red or blue, and whether they support sports gambling or not.

Under the anti-commandeering doctrine, the Supreme Court has previously struck down attempts by Congress to conscript states and state officials into implementing federal policy. In 1992, the court in New York v. United States held a part of the Low-Level Radioactive Waste Policy Act unconstitutional, because it presented states with two unlawful commands: take ownership of certain radioactive waste or regulate according to the instructions of Congress. Then in Printz, the court invalidated portions of the Brady Handgun Violence Prevention Act, because they obligated state law-enforcement officers to perform background checks as part of a federal regulatory scheme.

As interpreted by the 3rd Circuit, PASPA is similarly unconstitutional. Congress can no more mandate that states not repeal or modify certain existing gambling laws than it can dictate to states how they must regulate radioactive waste or obligate state law-enforcement officers to conduct background checks. If Congress wants to ban or restrict sports betting, it must do so itself as a matter of federal law. Or it must lawfully induce the states to do so by, for example, creating financial incentives under the spending clause or implementing a regime that threatens federal pre-emption in the absence of state action (so-called “cooperative federalism”). But it cannot simply commandeer state law to carry out federal policy the way that PASPA does.

In fact, PASPA strikes at the core of what the anti-commandeering doctrine is meant to protect against. The doctrine safeguards the system of dual sovereignty enshrined generally in the Constitution and specifically in the 10th Amendment. In drafting the Constitution, the framers deliberately rejected a system of government in which Congress would employ state governments as agencies of the federal government. That was the model under the Articles of Confederation, and it was not a success. So the framers settled on a system of dual sovereignty, in which the federal and state governments would govern independently, and each would be separately and directly responsible to its citizens. The framers saw this separation of the state and federal governments as critical to the preservation of liberty, because each government would act as a check on the other.

The anti-commandeering doctrine protects the distinct lines of accountability between each government and its citizens. By prohibiting Congress from conscripting states into federal service, the anti-commandeering doctrine ensures that each government remains directly responsible and responsive to its people. If the citizens of a state don’t agree with a certain state policy, they should be able to try to elect state officials who share their view. And if they are objecting to something that is really a federal policy, federal officials should suffer the consequences. But when Congress forces states to implement federal policy, the lines of accountability become far less clear, and state officials may bear the brunt of public disapproval for what is in reality a federal policy.

PASPA interferes with this accountability in at least two ways. First, because PASPA effectuates a ban on sports betting by freezing in place existing state-law prohibitions, it creates confusion over which government is truly responsible for the ban. The actual bans are technically a matter of state, not federal, law. Indeed, there is no federal law that prohibits sports wagering. So from one perspective, it is the state that prohibits sports wagering. But would the state government change the laws if it were permitted to do so? If so, PASPA obscures the fact that the federal government is in reality responsible for the ban. The anti-commandeering doctrine is meant to prevent precisely this kind of confusion.

Second, regardless of whether state or federal officials should be held responsible for the ban, PASPA’s prohibition on the repeal of state law deprives a state’s citizens of a core power they should have over their state government. Central to the ideals set forth in the Declaration of Independence and the Constitution – in particular the 10th Amendment – is the principle that the people ultimately retain sovereign power in the American republic. That power has always been understood to include both the authority to delegate to the state legislature the right to regulate certain private conduct by enacting new laws and the right of the people to reclaim their liberty to engage in that conduct by repealing existing laws. PASPA intrudes upon this core power by freezing in place laws that New Jersey and other states currently have on their books – thus depriving the people and their legislatures of their sovereign right to repeal laws that have become onerous, unpopular or detrimental to liberty.

The sports leagues and the federal government have argued – and likely will argue – that PASPA is little more than a run-of-the-mill express pre-emption clause. Not so. Pre-emption is premised on the existence of an affirmative federal regime. The supremacy clause makes that federal regime supreme over state law, and empowers Congress to enact express prohibitions on contrary state law. But there is no affirmative federal regime here. PASPA is not an express pre-emption clause enacted in support of a larger federal ban on sports wagering. It is a freestanding law that hijacks existing state laws to carry out a federal policy. That is not pre-emption; it is unlawful commandeering.

This case is about far more than sports wagering. The principle that the Supreme Court articulates in this case could have wide-ranging implications for the relationship between the federal and state governments. If the court decides that Congress has the power to co-opt state legislatures and prevent them from repealing their own laws, Congress could prevent state experimentation in a host of other important policy areas. For example, without enacting any federal regulatory scheme to take the place of state law, Congress could simply prevent the states from repealing or amending their existing prohibitions on the sale or use of pharmaceuticals, medical devices, fireworks, credit cards, lending arrangements or other products or services typically regulated under state law. The Constitution’s structure of dual sovereignty does not allow that result. By granting certiorari in this case, the Supreme Court may well have recognized that, under PASPA, Congress has pushed its authority too far.

Recommended Citation: Elbert Lin and Thomas M. Johnson Jr., Symposium: High stakes for federalism in heavyweight clash over the anti-commandeering doctrine, SCOTUSblog (Aug. 17, 2017, 2:44 PM),