On Friday, the United States Department of Justice filed its highly anticipated brief arguing against New Jersey’s effort to legalize single-game sports betting. The brief, filed with US District Court Judge Michael Shipp on Friday in Trenton, supports claims already made by the major professional sports leagues and the NCAA, namely, that sports betting makes Baby Jesus cry. (Or words to that effect.) New Jersey believes the 1992 Professional and Amateur Sports Protection Act (PASPA) federal prohibition that contains single-game sports betting to within Nevada’s borders and permits only parlay-type bets in three other states is unconstitutional and that the leagues lack the necessary standing to intervene. Judge Shipp has rejected the latter argument and the DOJ has now weighed in on the former.
DOJ attorney Peter Phipps rejected New Jersey’s assertion that PASPA violates the anti-commandeering principles of the 10th Amendment to the Constitution by requiring the state to act to implement a federal law. Because New Jersey doesn’t currently offer sports bets, Phipps argues that PASPA requires New Jersey neither to enact any laws nor spend any money; in essence, PASPA only requires New Jersey to do nothing, which New Jersey has successfully done for the two decades since PASPA’s introduction.
As for New Jersey’s assertion that PASPA falls afoul of the Constitution’s Commerce Clause, Phipps believes “the determination whether legislation has a substantial effect on commerce does not involve a factual inquiry; rather, the dispositive question is whether Congress could reasonably believe that the regulated activity would have a substantial effect on interstate commerce.” Since “sports gambling has a substantial effect on interstate commerce” and Congress is “not limited to addressing purely economic matters – it also may seek to remedy social or moral concerns that substantially effect interstate commerce.”
Phipps says New Jersey’s reliance on the principles of equal sovereignty and the equal footing doctrine are irrelevant to this discussion, as these principles don’t bar geographical limitations on legislation and only seek to ensure that new states joining the Union are admitted on an equal footing with existing states, and New Jersey joined the Union a couple centuries before PASPA was introduced.
Phipps says New Jersey’s efforts to seek due process and equal protection under the Fifth Amendment fail because PASPA is “economic and social legislation that serves legitimate governmental purposes … through rational means” and PASPA’s specific exceptions “do not undermine its rationality.” Besides, Phipps argues, the Fifth Amendment protects persons, not states.
The brief makes no mention of the letter the DOJ wrote in 1991 while PASPA was still being discussed in Congress. The letter, addressed to then Judiciary Committee chairman and current US Vice-President Joe Biden, stated that PASPA raised “federalism issues” in that the states were traditionally allowed to decide for themselves how to generate revenue, a role PASPA sought to usurp. Presumably, the DOJ’s lawyers are saving this “yeah, but that was then and this is now” debate for oral arguments before Shipp on Feb. 14. New Jersey will have until Feb. 7 to file a response to the DOJ’s brief (the same day Gov. Chris Christie has to decide what to do with the online gambling bill on his desk).
Undaunted by the DOJ’s brief, New Jersey state Senator Ray Lesniak told NJ.com that the DOJ’s argument re PASPA’s constitutional bona fides is “ridiculous. It makes an exception (for some states) … and it leaves us behind the eight ball. They’re saying we can’t have legal sports betting, but they allow illegal sports betting to go on. I think the court will see the foolishness of that.” Interactive Media Entertainment and Gaming Association (iMEGA) president Joe Brennan Jr. tweeted that the brief could be summarized thus: “Congress, the Federal government can do whatever it wants, and the states can suck on it.”
