Let the states do what they do best

The recently argued U.S. Supreme Court case Christie v. NCAA involves whether Congress can prohibit New Jersey from changing its state laws to legalize sports betting. However, the case raises a more fundamental question than the legalization of gambling — that is, whether Congress can force a state to have certain laws on its books.

The court should hold that such a congressional dictate is fundamentally incompatible with federalism and violates the 10th Amendment “anti-commandeering” doctrine. This is especially true where, as here, the law relates to a traditional area of state competency — protecting public safety.

{mosads}The name “The United States of America” communicates something profound but often overlooked: the states, which predated the federal government, actually joined together to form that government. Each state was sovereign in its own right but ceded a portion of its power to create the federal government. And new states were admitted to the union on equal footing with those original states.

The key point is that the states are not mere administrative units of the federal government, but rather separate sovereigns, with powers independent of the federal government, and directly accountable to their people.

The genius of this system is that it creates two levels of government — each of which can govern within its own sphere of competence. Paradoxically, by creating two levels of government our framers secured more freedom for the people, not less, because the two governments were intended to exist in tension with each other.

The Supreme Court twice before has recognized that Congress oversteps its bounds and violates the 10th Amendment when it attempts to “commandeer” state power for congressional ends.  In New York v. United States, the court struck down a law requiring states to regulate low-level radioactive waste disposal or accept ownership of that waste. And in Printz v. United States, the court invalidated a provision in the Brady Act that required local sheriffs to perform background checks. These laws are impermissible because they attempt to turn the states into administrative units of the federal government — contrary to what our framers adopted.

This brings us back to the Christie case. It involves a federal law called the Professional and Amateur Sports Protection Act (PASPA). Passed in 1992, PASPA prohibits all but four states (Nevada and three others that had laws on the books permitting sports betting) from passing legislation or otherwise taking action to legalize sports betting.

No one disputes that Congress could itself outlaw sports betting. Indeed, the Supreme Court held over 100 years ago in Champion v. Ames that Congress could use its power under the Commerce Clause to prohibit the interstate transport of lottery tickets.

But what makes PASPA different from many other federal laws is that, rather than regulating sports betting directly, Congress instead prohibited the states from changing their state laws.   

On behalf of Arizona, I joined with a bipartisan group of state attorneys general to file an amicus brief in support of New Jersey. We have requested that the Supreme Court reject the federal government’s overreach and permit the states to choose for themselves how to regulate sports betting. And in doing so, we have requested that the court right the relationship between the states and the federal government.   

As it stands today, PASPA’s regime frustrates federalism. States are the “laboratories of democracy.” But by passing a law that freezes existing state law in place, Congress prevents states from experimenting with new policies as their citizens’s preferences change.

New Jersey’s experience highlights this problematic overreach. In 2011 (20 years after PASPA), New Jersey’s voters amended their constitution and in 2012 the legislature acted to legalize sports betting. But unless the Supreme Court rules in New Jersey’s favor, these state law changes are meaningless.

In a case such as this involving regulation to protect public safety, the states, not the federal government, are in the best position to act. The states traditionally have protected public safety and, absent a compelling reason to deviate, should continue to do so. Congress could certainly act to prohibit sports betting, but this determination is better made on a state-by-state basis.  Many (even most) states may choose to leave their laws prohibiting sports betting on the books.  Some may not. But it should be up to the states to do what the states do best.

Mark Brnovich is the Arizona attorney general and former director of the Arizona Department of Gaming.