Murphy v. Nat'l Collegiate Athletic Ass'n, Nos. 16–476

• Court: United States Supreme Court
• Writing for the Court: Justice ALITO delivered the opinion of the Court.
• Citation: 138 S.Ct. 1461,200 L.Ed.2d 854
• Parties: 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.
• Docket Number: Nos. 16–476,16–477.
• Decision Date: 14 May 2018

138 S.Ct. 1461
200 L.Ed.2d 854

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.

Supreme Court of the United States

Argued Dec. 4, 2017.
Decided May 14, 2018.

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, Gibson, Dunn & Crutcher LLP, Washington, DC, Ashley E. Johnson, Gibson, Dunn & Crutcher LLP, Dallas, TX, Lauren M. Blas, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Christopher S. Porrino, Attorney General of the State of New Jersey, Stuart M. Feinblatt, Peter Slocum, Office of the Attorney General of the State of New Jersey, Trenton, NJ, for State Petitioners.

Michael R. Griffinger, Thomas R. Valen, Jennifer A. Hradil, Gibbons P.C., Newark, NJ, for Legislator Petitioners.

Jeffrey A. Mishkin, Anthony J. Dreyer, Skadden Arps Slate Meagher & Flom LLP, New York, NY, Paul D. Clement, Erin E. Murphy, Edmund G. LaCour Jr., Michael D. Lieberman, Kirkland & Ellis LLP, Washington, DC, for Respondents.

Justice ALITO delivered the opinion of the Court.

The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to "authorize" sports gambling schemes. 28 U.S.C. § 3702(1). We must decide whether this provision is compatible with the system of "dual sovereignty" embodied in the Constitution.

I

A

Americans have never been of one mind about gambling, and attitudes have swung back and forth. By the end of the 19th

138 S.Ct. 1469

century, gambling was largely banned throughout the country,¹ but beginning in the 1920s and 1930s, laws prohibiting gambling were gradually loosened.

New Jersey's experience is illustrative. In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State.² But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue,³ and in 1953, churches and other nonprofit organizations were allowed to host bingo games.⁴ In 1970, New Jersey became the third State to run a state lottery,⁵ and within five years, 10 other States followed suit.⁶

By the 1960s, Atlantic City, "once the most fashionable resort of the Atlantic Coast," had fallen on hard times,⁷ and casino gambling came to be seen as a way to revitalize the city.⁸ In 1974, a referendum on statewide legalization failed,⁹ but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone.¹⁰ At that time, Nevada was the only other State with legal casinos,¹¹ and thus for a while the Atlantic City casinos had an east coast monopoly. "With 60 million people living within a one-tank car trip away," Atlantic City became "the most popular tourist destination in the United States."¹² But that favorable situation eventually came to an end.

With the enactment of the Indian Gaming Regulatory Act in 1988, 25 U.S.C. § 2701 et seq., casinos opened on Indian land throughout the country. Some were located within driving distance of Atlantic City,¹³ and nearby States (and many others) legalized casino gambling.¹⁴ But Nevada remained the only state venue for legal sports gambling in casinos, and sports gambling is immensely popular.¹⁵

Sports gambling, however, has long had strong opposition. Opponents argue that it is particularly addictive and especially attractive to young people with a strong interest in sports,¹⁶ and in the past gamblers

138 S.Ct. 1470

corrupted and seriously damaged the reputation of professional and amateur sports.¹⁷ Apprehensive about the potential effects of sports gambling, professional sports leagues and the National Collegiate Athletic Association (NCAA) long opposed legalization.¹⁸

B

By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling,¹⁹ and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA). 28 U.S.C. § 3701 et seq. PASPA's proponents argued that it would protect young people, and one of the bill's sponsors, Senator Bill Bradley of New Jersey, a former college and professional basketball star, stressed that the law was needed to safeguard the integrity of sports.²⁰ The Department of Justice opposed the bill,²¹ but it was passed and signed into law.

PASPA's most important provision, part of which is directly at issue in these cases, makes it "unlawful" for a State or any of its subdivisions²² "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. § 3702(1). In parallel, § 3702(2) makes it "unlawful" for "a person to sponsor, operate, advertise, or promote" those same gambling schemes²³ —but only if this is done "pursuant to the law or compact of a governmental entity." PASPA does not make sports gambling a federal crime (and thus was not anticipated to impose a significant law enforcement burden on the Federal Government).²⁴ Instead, PASPA

138 S.Ct. 1471

allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. § 3703.

At the time of PASPA's adoption, a few jurisdictions allowed some form of sports gambling. In Nevada, sports gambling was legal in casinos,²⁵ and three States hosted sports lotteries or allowed sports pools.²⁶ PASPA contains "grandfather" provisions allowing these activities to continue. § 3704(a)(1)-(2). Another provision gave New Jersey the option of legalizing sports gambling in Atlantic City—provided that it did so within one year of the law's effective date. § 3704(a)(3).²⁷

New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart. New Jersey voters approved an amendment to the State Constitution making it lawful for the legislature to authorize sports gambling, Art. IV, § 7, ¶ 2 (D), (F), and in 2012 the legislature enacted a law doing just that, 2011 N.J. Laws p. 1723 (2012 Act).

The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. In response, the State argued, among other things, that PASPA unconstitutionally infringed the State's sovereign authority to end its sports gambling ban. See National Collegiate Athletic Assn. v. Christie, 926 F.Supp.2d 551, 561 (D.N.J.2013).

In making this argument, the State relied primarily on two cases, New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), in which we struck down federal laws based on what has been dubbed the "anticommandeering" principle. In New York, we held that a federal law unconstitutionally ordered the State to regulate in accordance with federal standards, and in Printz, we found that another federal statute unconstitutionally compelled state officers to enforce federal law.

Relying on these cases, New Jersey argued that PASPA is similarly flawed because it regulates a State's exercise of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling. See National Collegiate Athletic Assn. v. Christie, 926 F.Supp.2d, at 561–562. The plaintiffs countered that PASPA is critically different from the commandeering cases because it does not command the States to take any affirmative act. Id., at 562. Without an affirmative federal command to do something, the plaintiffs insisted, there can be no claim of commandeering. Ibid.

The District Court found no anticommandeering violation, id., at 569–573, and a divided panel of the Third Circuit affirmed, National Collegiate Athletic Assn. v. Christie, 730 F.3d 208 (2013) (Christie I ). The panel thought it significant that PASPA does not impose any affirmative command. Id., at 231. In the words of the panel, "PASPA does not require or coerce the states to lift a finger." Ibid. (emphasis deleted). The panel recognized

138 S.Ct. 1472

that an affirmative command (for example, "Do not repeal") can often be phrased as a prohibition ("Repeal is prohibited"), but the panel did not interpret PASPA as prohibiting the repeal of laws outlawing sports gambling. Id., at 232. A repeal, it thought, would not amount to "authoriz[ation]" and thus would fall outside the scope of § 3702(1). "[T]he lack of an affirmative...