Thwarted, in 2014, New Jersey passed a different law designed to bypass PASPA. This one did not set up a licensed system of sports betting—it just repealed all state laws against sports betting by some people (adults) in some places (Atlantic City tracks and casinos) on certain contests (those not involving New Jersey teams). Those places might or might not allow betting, but the state wasn’t doing anything one way or the other, legislators said.
The NCAA came roaring back into court, and again the lower courts enjoined the law, saying that its repeal “selectively remove[d]” a prohibition and “permissively channel[ed]” betting to favored operators. This, it said, was “authorization,” and that violated PASPA.
This time the Court did grant review, and Monday it held that, by prohibiting authorization, PASPA did “commandeer” the state government: “It is as if,” Justice Samuel Alito wrote for a six-justice majority, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any pending proposals. A more direct affront to state sovereignty is not easy to imagine.”
The NCAA (joined by the federal government as amicus) had argued that PASPA did not order the state to do anything (outlaw betting), and instead told it not to do something (repeal laws against betting). Responded the majority,
This distinction is empty. It was a matter of happenstance that the laws challenged in [the previous “commandeering” cases] commanded “affirmative” action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.
“Direct orders” in this context means orders to do or not do things only states can do—i.e., pass and enforce laws.
The actual vote in the case was 7 to 2; Justice Stephen Breyer joined the majority except for one small section of the opinion. Justice Clarence Thomas joined in full, but also wrote separately. Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor. But both separate opinions, and even the dissent, focused not on the “commandeering” analysis, but on the majority’s decision that the entire statute, rather than simply the ban on “authorizing” gambling, was unconstitutional.
Overall, the case reaffirmed the “anti-commandeering” rule, and clearly extended it to prohibitions as well.
The decision is extremely consequential to sports bettors, who will now be able to lose their savings close to home, and would-be legal bookies, who need not share their local suckers with distant casino owners; but if I may digress briefly, it also may shed light on the bitter fight over “sanctuary cities.”
If the puppet principle bars a prohibition on “authorizing” gambling, then what are we to make of the following statute, 8 U.S.C. § 1373:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
This is the statute that is at the heart of the current federal effort to enjoin and penalize so-called “sanctuary cities.” Most “sanctuary” policies are directions by state and local governments to their own officials, ordering them not to do certain things—turn over information about immigration and release status, for example, or hold prisoners not charged with crimes solely for the convenience of federal immigration authorities. The Justice Department claims that these policies violate that statute, and thus should be enjoined; it also seeks to withhold, or even demand repayment of, federal grant monies paid to “sanctuary” jurisdictions.