Sports betting and the creation of the Constitution

OCTOBER 2017 TERM

Gambling on sporting events is widespread and virtually universal. It has been estimated that illegal betting in the United States is in the $50 billion to $150 billion range.

For many years the states (and others) have coveted the revenues that would be generated by legalized gambling, while the colleges and professional leagues fielding teams worry about extensive gambling bringing corruption. The public has moved in the direction of approval, with the most recent polls showing support for legalizing sports betting.

The legislative battle on the issue was won by the opponents, but the ultimate battle so far has been won by the gamblers, in the Supreme Court of the United Sates.

Congress in 1992 enacted the Professional and Amateur Sports Protection Act which broadly prohibited betting on sports events, with certain exceptions, notably Nevada. At the time most other state laws outlawed such gambling, but there was strong public pressure to allow the states to derive the revenue to be had from wagering activity. The National Collegiate Athletic Association was strongly opposed to legalization, as were the professional sports leagues.

Fast forward to May 14, 2018. On that date the U.S. Supreme Court declared PASPA unconstitutional, allowing the states to legalize sports gambling, authorizing them to tap this revenue stream. For which many states are presently preparing. With enthusiasm. Murphy v. NCAA, DJDAR 4453.

The consequences of the court's decision are likely to be pervasive. The prevalence of illegal gambling has been widely noted. The public wants to gamble, and regardless of what many perceive as negative social consequences, the urge to wager on sporting events is here to stay.

Between the enactment of PASPA and its consignment to the waste heap of constitutional law, much has transpired, both legally and politically. We do not propose to discuss those events, but to analyze the constitutional doctrine that resulted in the Supreme Court's action. In other words, just the law.

To fully understand the ruling, we have to go back to the Constitutional Convention of 1787, at which the Constitution was created. The Convention mandated a national government of limited powers. The document enumerated the powers of the federal government. Congress had (and has) no constitutional authorization to legislate beyond those powers.

But the Constitution said nothing about the powers of state governments. The states were deemed sovereign, with power over their people limited by other express provisions of the Constitution. (E.g., "No State shall enter into any Treaty, Alliance or Confederation etc.")

At the conventions of the people called to ratify the Constitution, there was a strong movement to add a Bill of Rights to the document. To assure ratification James Madison ("the father of the Constitution") promised that the Constitution would be amended by adding a Bill of Rights. The first Congress made good that promise, adding the first ten amendments.

Protection of the states from being denied their sovereign powers was one of the concerns. To meet this, the Tenth Amendment provided, then and now: "The powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people."

The amendment was intended to assure state powers to those Americans mistrustful of a national government. It was a guarantee that the states retained the power of self-government on matters that did not fall within the purview of Congress, that is, matters which did not require national unity or power.

For many years the Supreme Court vacillated with respect to the force of the Tenth Amendment, between emphasizing its power in some decisions, and finding that it did not limit the power of Congress to legislate in others. In 1941, in a New Deal case in which the Supreme Court upheld federal power, Justice Harlan Stone wrote, "Our opinion is unaffected by the Tenth Amendment, which [states] but a truism that all is retained that is not surrendered."

That represented the nadir of Tenth Amendment jurisprudence, but it was not dead, only sleeping. In 1992, in the first of two cases holding that the

Tenth Amendment prevented the federal government from "commandeering" state government, the Supreme Court held that a provision requiring the states to take title to low level radioactive waste exceeded the powers of Congress because it ordered the state to take certain legislative actions (New York v. United States). It was the first case holding, as a basis of decision, that the Tenth Amendment prevented the federal government from giving direct orders to the states.

It was followed in 1997 by Printz v. United States, which reached the same conclusion with respect to a law that directed state officials to undertake certain responsibilities under federal gun sales background check legislation.

The rationales for these decisions were tripartite: the limitation on the powers of Congress rule serves as "one of the structural safeguards of liberty ... promotes political accountability ... and prevents Congress from shifting the cost of regulation to the States."

These two precedents doomed the scheme of PASPA. Congress, rather than simply passing a law that prohibited or regulated sports gambling, which it had the clear power to do, chose to act upon the states. PASPA prohibits the states from sponsoring, operating, promoting, licensing or authorizing by law any gambling scheme. Or allowing any person to do so.

The legislation directed the states what not to do, and the Supreme Court, by a 7-2 vote read this as an interference with the sovereignty guaranteed by the Tenth Amendment.

Justice Samuel Alito, writing for the court, was emphatic: "It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is difficult to imagine."

After this constitutional history, what has the Supreme Court's holding to do with sports gambling? The ruling takes no account of the effects of gambling on college and professional sports, the risks of corruption, the social benefits or costs of wagering, and does not consider the many economic interests impacted by the sea change which is certain to ensue.

The question decided by the court is one of federalism and separation of powers between the states and the federal government. The Constitution set down the rules governing these principles in another millennium, with the effect that they have become the basis of decision for all time...at least so far.

The Federalist Papers, written in support of ratification of the Constitution, said that under the Constitution the states retained "a residuary and inviolable sovereignty." (No. 39) Madison, the author of those words, never gave nor received points on a football wager. But his words and concepts will no doubt result in generating a veritable tsunami of opportunities for the public to try its prognosticating skills against professional oddsmakers.