Tuesday, August 15, 2017

Anticommandeering, Preemption, and the Common Law: The PASPA Case

Mark Tushnet

I'm afraid that I have an unbearably simple-minded view of Christie v. NCAA, New Jersey's challenge to the constitutionality of the Professional and Amateur Sports Protection Act (PASPA). Here's a description of the statute. And here's the short version of the issue: New Jersey banned sports betting businesses.  Congress enacted a statute saying that sports betting was federally banned except in a handful of states where it was lawful in 1992. New Jersey repealed its ban in 2012. New Jersey says that the Third Circuit held that PASPA prohibited it from repealing its ban on sports betting, and that that holding makes PASPA unconstitutional because PASPA commandeers the state legislative process.

It seems to me, though, that there's a simpler (or, as I said, simple-minded) view of the situation. Congress has enacted a ban on sports betting (subject to the grandparenting clause). Engaging in sports betting, even where authorized by state law, is unlawful. New Jersey's repeal of its prior ban on sports betting is basically irrelevant. The repeal remits people to their background rights of property, contract, and tort. People in New Jersey are relying on their ordinary property rights when they run sports-betting businesses. Congress has simply preempted state property law on this issue. And preemption works that way all the time. It can't be that the anticommandeering doctrine makes all federal laws preempting state property (or contract or tort) rights unconstitutional.

[At last, a Balkinization post that isn't about Trump!]

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