Are Trump’s NDAs legal?
Those who care about federalism should be interested in sports betting case
If James "Father of the Constitution" Madison were alive today, he'd have a lot to say. Free speech is under attack, unconstitutional federal agencies continue running amok, and America is 20 trillion dollars in debt. He probably wouldn't care about my fantasy football picks - but as the author of the Tenth Amendment, he should.
The Supreme Court has agreed to hear Christie v. NCAA, a case about legalized sports betting with surprisingly far-reaching implications for Federalism and the reach of federal law. New Jersey has challenged the constitutionality of the Professional and Amateur Sports Protection Act (PAPSA), a federal law prohibiting states from legalizing and regulating sports betting within their borders.
In 2012, New Jersey voters amended their constitution, allowing sports gambling at casinos and racetracks; state lawmakers soon lifted some gambling restrictions. After their changes became law, however, New Jersey was sued by the NCAA, NFL, NBA, NHL, and MLB, who claimed the Garden State violated PAPSA.
New Jersey did not deny that fact, arguing instead that PAPSA unconstitutionally commandeered the rights of states. Citing New York v. United States, New Jersey said the Constitution does not "confer upon Congress the ability to require the States to govern according to Congress' instructions." They later wrote, their exasperation apparent, that "never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal."
Sports leagues want continued prohibitions on betting. They claim that gambling money leads to corruption, like the 1919 Black Sox scandal. But their argument hinges on the belief that regulations banning gambling actually keep people from gambling. They don't. Americans illegally bet anywhere between 150 and 400 billion dollars per year on sports. Big money is already there - but it's been driven underground, away from regulations and consumer protections.
The black market poses a greater risk to the integrity of sports than open, visible, and regulated betting. The Competitive Enterprise Institute notes that "sports betting lines operate like financial markets...an extreme fluctuation, which might occur if large amounts of money was suddenly being bet on a longshot underdog, would set off alarm bells." But blanket gambling bans mean suspicious betting patterns go unreported, making another Black Sox more likely, not less. Players are unlikely to report gambling, too, if it means facing suspension or worse. No one wants to be the next Pete Rose.
Meanwhile, public opinion is shifting. A 2014 study showed that 68 percent of people believed states should decide the legality of sports betting. Adam Silver, NBA Commissioner, said "sports betting should be...appropriately monitored and regulated." MLB Commissioner Rob Manfred has made similar statements. Legalizing betting would create over a hundred thousand new jobs, over $6 billion in wages, and inject $25 billion into our economy.
That's still a long way off, however - a pity, considering how well both my fantasy league and FSU's new players are doing this year. The real issue at play in New Jersey v. NCAA isn't really sports betting, though - it's Federalism. Congress has broad powers to regulate and control commerce. Congress also cannot force a state to "un-decriminalize" something; states' rights are routinely upheld by the Court. For this case, does betting constitute "commerce"? Well, that's tricky.
Sports leagues say PAPSA merely reflects "Congress' power to preempt...state laws that conflict with federal policy." Similarly, the administration has said PAPSA "neither compels States to regulate according to federal standards, nor requires state officials to administer federal law." Meanwhile, Attorneys General and governors from 20 states, including Florida, have said that gambling is an issue better decided by individual states - so long as the betting is confined within one state, and does not cross state lines. I stand with them: the federal government is monolithic and slow, and we should aim to remove its heavy hand whenever, wherever, and however we can.
This issue, however, doesn't break down along neat ideological lines. Regulation and commerce were at the heart of the debate surrounding ObamaCare's individual mandate, too; surprisingly, much of the mandate's defense was drawn from the opinions of Antonin Scalia, who defended the government's very broad right to regulate commerce. In Printz v. United States, however, Scalia wrote that the "Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers...to administer or enforce a federal regulatory program."
Will the Supreme Court view this case as a commerce issue, or a regulatory issue? How will Justice Gorsuch vote? Will this case set off a wave of challenges to regulatory overreach? Will I ever be able to cash in on my great fantasy teams?
Until the Supreme Court reaches a decision, or Congress reviews the law, all bets are off.
Gaetz represents Florida's 1st District and is a member of the Judiciary Committee.