A Possible Case about Betting on Sports

This week’s post is about a Court Case that is waiting to possibly be granted certiorari by the Supreme Court. Said court case is New Jersey Thoroughbred Horsemen’s Association v. National Collegiate Athletic Association.

In summary, the case is about the Constitutionality of a Federal regulation that essentially outlawed betting on sporting events in 46 states. This regulation is the Professional and Amateur Sports Protection Act of 1992. According to the plaintiffs, the Act says that it is “unlawful for a ‘governmental entity to *** license, or authorize by law or compact’ sports wagering activities” (1). Additionally, people are not allowed “‘to sponsor, operate, advertise, or promote’ sports wagering activities if and only if done ‘pursuant to the law or compact of a governmental entity’” (2). Through this, the plaintiffs believe that the Act goes beyond what Congress is allowed to do in the Constitution, as well as violating the Tenth Amendment and principles of Federalism. Also, the plaintiffs claim that the since the law affects only 46 of the states, it “violate[s] the fundamental principle of equal sovereignty” (3).

Before I state my opinion, I must say that I wonder why, according to the appeal to certiorari quoted above, it is illegal for a person to deal with “sports wagering activities” if they are done “pursuant to the law… of a governmental entity” (4). “Pursuant to” means “in conformance to” or “according to” (5). Why is something illegal if done according to the law? Perhaps that was a typo.

Anyway, I believe that what the Act regulates and how it does it is not of itself contrary to neither the Tenth Amendment nor the Congressional Powers in the Constitution. The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Article 1, Section 8 says that “The Congress shall have Power… To regulate Commerce… among the several States.” Additionally, the same Section gives Congress the Power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” This is commonly referred to as the Necessary and proper clause.

Using these clauses from the Constitution, it can be seen that what the Act regulates is within the bounds of the Constitution. Betting on sporting events can occur between individuals of multiple states, meaning it can be regarded as Interstate Commerce, which Congress has been given explicit power to regulate. Since the Necessary and Proper clause also gives Congress the power to do anything (essentially) to fulfill the Interstate Commerce clause, Congress can pass an Act that makes betting on sporting events illegal. Thus, since Congress has the Constitutional right to pass the said Act, the Tenth Amendment really does not come into play in this case.

The situation regarding the Equal Sovereignty part of the plaintiffs’ argument is less clear. According to a post on the Constitutional Law Prof Blog, Equal Sovereignty is not an actual Constitutional idea, but one that was formed in the 2009 case Northwest Austin Municipal Utility District Number One v. Holder. However, some of the Justices who agreed with the ruling in that case later dissented in a different case, stating that “there is no general doctrine of equal state sovereignty” (6). If the Horsemen’s Association case is granted certiorari, the decision should help to clear some of the muck. 

Bibliography:
1. Riccio, Ronald J., Berman, Eliott, et c. "New Jersey Thoroughbred Horsemen's Association, Inc., Petitioner, v. National Collegiate Athletic Association, National Basketball Association, National Football League, National Hockey League, Office of the Commissioner of Baseball, doing business as Major League Baseball, United States of America, Respondents," Petition for Writ of Certiorari. February 12, 2014, Online Document. Accessed April 10, 2014 from http://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-979-NJTHA-Petition-for-Writ-of-Certiorari.pdf, page 5.
2. Ibid., 5,6. Partial internal quote from 28 U.S.C. 3702.
3. Ibid., i.
4. Ibid., 6. Quote from 28 U.S.C. 3702.
5. Webster's New Collegiate Dictionary, s. v. "pursuant to."
6. SDS, "How Did We Get the Principle of Equal State Sovereignty (in the Shelby County Case)?" Constitutional Law Prof Blog (blog), June 28, 2013, http://lawprofessors.typepad.com/conlaw/2013/06/how-did-we-get-the-principle-of-equal-state-sovereignty-in-the-shelby-county-case.html