gambling Kobby Dagan/

There is no ironclad split in our federal Supreme Court between conservatives and liberals or progressiveness. In a 6 ½ versus 2 ½ decision, the High Court struck down what is deemed PASPA’s prohibition of State authorization for sports betting. It based the ruling upon its finding of a fundamental principle within our federal Constitution which parcels out power to the federal government by way of express provisions and the residual power in the states for that not delegated expressly to our Congress.

Violations of that reserved power was considered to be a violation of the anti-commandeering provisions found to exist by two earlier decision of the Supreme Court in U.S. v. N.Y. and Printz v. U.S., decided in 1992 and 1997 respectively.

In short, the federal Congress could not direct state legislatures or state regulatory bodies to enforce or legislate according to federal principles, laws or directives.

Interestingly, Justice Alito’s opinion may support state and local decisions not to enforce or assist federal immigration policies now in play throughout the United States and among some of its major cities.

The opinion found that our Constitution did not allow Congress the power to issue orders directly to the states. It found that absent express provisions within the federal Constitution granting power to Congress, there was a residuary sovereignty to the individual states. Thus, there was a “dual sovereignty” encompassing express to the federal and residual to each state individually.

“And conspicuously absent from the list of powers to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of the limit on congressional authority.” (Slip Opinion, page 15)

The principle governing the holding is that Congress legislates the activities of individuals and not the state. PASPA was thusly held unconstitutional because it sought to direct the states’ executives and legislatures to do something.

The Court then considered whether PASPA pre-empted the rights of the states to authorize sports betting and held that it did not. Finally, the Court concluded that parts of the PASPA could not be saved because to do so would be inconsistent with the reality of the picture regarding gambling at the time of adoption of the law.

All of the other anti-gambling federal laws made the activity illegal only if the gambling was illegal under state law. Hence, if New Jersey does not make sports betting illegal and establishes guidelines, then the state is free to legislate for sports betting without federal constraints.

Justice Thomas wrote a concurring opinion questioning the severability doctrine.

Justice Breyer wrote an opinion concurring in part and dissenting in part. His opinion accepts the majority opinion that PASPA’s requirement directed to the states is unconstitutional, but it was severable as another section of the act constitutionally that applies to individual actions is lawful and controlling. His reasoning was that the majority would have interdicted sports betting only if Congress had made sports betting a federal crime.

This would then have the effect of creating a situation like legal state marijuana in the face of federal law which prohibits individuals from having or using non-medical marijuana.

Justice Ginsberg wrote a dissent for herself and Justice Sotomayor, joined in part by Justice Breyer.

In the opinion, Justice Ginsberg pointed out that the majority went out of its way to do a demolition job on the statute when it generally uses a severing job to salvage a statute which contains an illegal proposition or portion. She also pointed out that in the two precedential anticommandeering cases, New York and Printz, the Court salvages the provisions of the offending statutes.

Thus, we had a 7-2 vote on the anti-commandeering portion of the statute, and a 6-3 vote on invalidating the entire statute. The “strict constructionists” had demolished the statute  on its determination of what Congress really intended given the existing circumstances not in 1793 but in 1992.  “Original intent” was supposed to be the guiding principle of conservative strict constructionists. What Congress did in 1992 is hardly original intent.

It appears to this writer that the short description of the balance of the Court as generally five conservatives and four progressives is an over-simplification that is in no way instructive as to where the Court is on almost any issue. Here, seven Justices, including five so-called conservatives and two so-called liberals, went out of their way to facilitate sports betting, while limiting the power of Congress. This Court found against the highly conservative views and wishes of the NFL, NBA and Major League Baseball.

The dissenters really were there to point out how the majority was flouting well established principles to achieve this result-oriented decision.

It goes to prove that we should stop labeling our Justices and search different guide posts to analyze the opinions and decisions. Perhaps it simply came down to the fact that, when it comes to states’ rights, a majority wants to expand them. When it comes to individual liberties, we hope the majority will stand firm against any states’ rights bias.


Michael D. Schottland is a partner with Lomurro, Munson, Comer, Brown & Schottland in Freehold. He is a member of the Civil Litigation and Personal Injury Departments of the firm. He is designated by the Supreme Court of New Jersey as a Certified Civil Trial Attorney.