__ U.S. __, 16-476, Murphy v. National Collegiate Athletic Ass’n

• Citation: __ U.S. __, 138 S.Ct. 1461, 200 L.Ed.2d 854, 86 U.S.L.W. 4282, 27 Fla.L.Weekly Fed. S 233
• Opinion Judge: ALITO, Justice.
• Party Name: Philip D. MURPHY, Governor of New Jersey, et al., Petitioners v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al. New Jersey Thoroughbred Horsemen’s Association, Inc., Petitioner v. National Collegiate Athletic Association, et al.
• Attorney: Theodore B. Olson, Washington, DC, for Petitioners. Paul D. Clement, Washington, DC, for Respondents. Jeffrey B. Wall, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting the respondents. Theodore B. Olson, Matthew D. McGill, Nicole A. Saharsky, Gibso...
• Judge Panel: ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, KAGAN, and GORSUCH, JJ., joined, and in which BREYER, J., joined as to all but Part VI-B. THOMAS, J., filed a concurring opinion. BREYER, J., filed an opinion concurring in part and dissenting in part. GIN...
• Case Date: May 14, 2018
• Court: U.S. Supreme Court

Page __

__ U.S. __

138 S.Ct. 1461, 200 L.Ed.2d 854, 86 U.S.L.W. 4282, 27 Fla.L.Weekly Fed. S 233

Philip D. MURPHY, Governor of New Jersey, et al., Petitioners

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al. New Jersey Thoroughbred Horsemen’s Association, Inc., Petitioner

v.

National Collegiate Athletic Association, et al.

Nos. 16-476, 16-477

United States Supreme Court

May 14, 2018

Argued Dec. 4, 2017.

[138 S.Ct. 1465] Syllabus ^[*]

The Professional and Amateur Sports Protection Act (PASPA) makes it unlawful for a State or its subdivisions "to sponsor, operate, advertise, promote, license, or authorize by law or compact ... a lottery, sweepstakes, or other betting, gambling, or wagering scheme based ... on" competitive sporting events, 28 U.S.C. § 3702(1), and for "a person to sponsor, operate, advertise, or promote" those same gambling schemes if done "pursuant to the law or compact of a governmental entity," § 3702(2). But PASPA does not make sports gambling itself a federal crime. Instead, it allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. § 3703. "Grandfather" provisions allow existing forms of sports gambling to continue in four States, § 3704(a)(1)-(2), and another provision would have permitted New Jersey to set up a sports gambling scheme in Atlantic City within a year of PASPA’s enactment, § 3704(a)(3).

New Jersey did not take advantage of that option but has since had a change of heart. After voters approved an amendment to the State Constitution giving the legislature the authority to legalize sports gambling schemes in Atlantic City and at horseracing tracks, the legislature enacted a 2012 law doing just that. The NCAA and three major professional sports leagues brought an action in federal court against New Jersey’s Governor and other state officials (hereinafter New Jersey), seeking to enjoin the law on the ground [138 S.Ct. 1466] that it violates PASPA. New Jersey countered that PASPA violates the Constitution’s "anticommandeering" principle by preventing the State from modifying or repealing its laws prohibiting sports gambling. The District Court found no anticommandeering violation, the Third Circuit affirmed, and this Court denied review.

In 2014, the New Jersey Legislature enacted the law at issue in these cases. Instead of affirmatively authorizing sports gambling schemes, this law repeals state-law provisions that prohibited such schemes, insofar as they concerned wagering on sporting events by persons 21 years of age or older; at a horseracing track or a casino or gambling house in Atlantic City; and only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Plaintiffs in the earlier suit, respondents here, filed a new action in federal court. They won in the District Court, and the Third Circuit affirmed, holding that the 2014 law, no less than the 2012 one, violates PASPA. The court further held that the prohibition does not "commandeer" the States in violation of the Constitution.

Held

:

1. When a State completely or partially repeals old laws banning sports gambling schemes, it "authorize[s]" those schemes under PASPA. Pp. 1472 - 1476.

(a) Pointing out that one accepted meaning of "authorize" is "permit," petitioners contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to authorization. Respondents maintain that "authorize" requires affirmative action, and that the 2014 law affirmatively acts by empowering a defined group of entities and endowing them with the authority to conduct sports gambling operations. They do not take the position that PASPA bans all modifications of laws prohibiting sports gambling schemes, but just how far they think a modification could go is not clear. Similarly, the United States, as amicus, claims that the State’s 2014 law qualifies as an authorization. PASPA, it contends, neither prohibits a State from enacting a complete repeal nor outlaws all partial repeals. But the United States also does not set out any clear rule for distinguishing between partial repeals that constitute the "authorization" of sports gambling and those that are permissible. Pp. 1473 - 1474.

(b) Taking into account the fact that all forms of sports gambling were illegal in the great majority of States at the time of PASPA’s enactment, the repeal of a state law banning sports gambling not only "permits" sports gambling but also gives those now free to conduct a sports betting operation the "right or authority to act." The interpretation adopted by the Third Circuit and advocated by respondents and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. Pp. 1473 - 1475.

(c) Respondents and the United States cannot invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. Even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle. Pp. 1474 - 1475.

2. PASPA’s provision prohibiting state authorization of sports gambling schemes violates the anticommandeering rule. Pp. 1475 - 1481.

(a) As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the [138 S.Ct. 1467] list of conferred powers is the power to issue direct orders to the governments of the States. The anticommandeering doctrine that emerged in New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120, and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914, simply represents the recognition of this limitation. Thus, "Congress may not simply ‘commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.’ " New York, supra, at 161, 112 S.Ct. 2408. Adherence to the anticommandeering principle is important for several reasons, including, as significant here, that the rule serves as "one of the Constitution’s structural safeguards of liberty," Printz, supra, at 921, 117 S.Ct. 2365, that the rule promotes political accountability, and that the rule prevents Congress from shifting the costs of regulation to the States. Pp. 1475 - 1478.

(b) PASPA’s anti-authorization provision unequivocally dictates what a state legislature may and may not do. The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle— that Congress cannot issue direct orders to state legislatures— applies in either event. Pp. 1477 - 1478.

(c) Contrary to the claim of respondents and the United States, this Court’s precedents do not show that PASPA’s anti-authorization provision is constitutional. South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592; Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666, 145 L.Ed.2d 587; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1; FERC v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532, distinguished. Pp. 1478 - 1480.

(d) Nor does the anti-authorization provision constitute a valid preemption provision. To preempt state law, it must satisfy two requirements. It must represent the exercise of a power conferred on Congress by the Constitution. And, since the Constitution "confers upon Congress the power to regulate individuals, not States," New York, supra, at 177, 112 S.Ct. 2408, it must be best read as one that regulates private actors. There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors. Pp. 1479 - 1481.

3. PASPA’s provision prohibiting state "licens[ing]" of sports gambling schemes also violates the anticommandeering rule. It issues a direct order to the state legislature and suffers from the same defect as the prohibition of state authorization. Thus, this Court need not decide whether New Jersey’s 2014 law violates PASPA’s anti-licensing provision. Pp. 1481 - 1482.

4. No provision of PASPA is severable from the provisions directly at issue. Pp. 1482 - 1484.

(a) Section 3702(1)’s provisions prohibiting States from "operat[ing]," "sponsor[ing]," or "promot[ing]" sports gambling schemes cannot be severed. Striking the state authorization and licensing provisions while leaving the state operation provision standing would result in a scheme sharply different from what Congress contemplated when PASPA was enacted. For example, had Congress known that States would be free to authorize sports gambling in privately owned casinos, it is unlikely that it would have wanted to prevent States from operating sports lotteries. Nor is it likely that Congress would have [138 S.Ct. 1468] wanted to prohibit such an ill-defined category of state conduct as sponsorship or promotion. Pp. 1482 - 1483.

(b) Congress would not want to sever the PASPA provisions that prohibit a private actor from "sponsor[ing]," "operat[ing]," or "promot[ing]" sports gambling schemes "pursuant to" state law. § 3702(2). PASPA’s enforcement scheme makes clear that § 3702(1) and § 3702(2) were meant to operate together. That scheme— suited for challenging state authorization or licensing or a small number of private operations— would break down if a...