May Congress Prohibit New Jersey from Legalizing Sports Betting

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Summary: The Court’s decision in New York v. United States, 505 U.S. 144 (1992), held that the Constitution’s fundamental federal structure does not permit Congress to “directly . . . compel the States to require or prohibit [certain] acts.” In September 2013, the U.S. Court of Appeals for the Third Circuit upheld the Professional and Amateur Sports Protection Act (“PASPA”), 28 U.S.C. § 3701 et seq., against a constitutional challenge under New York by construing PASPA’s proscription against States “authoriz[ing]” sports wagering “by law” narrowly to prohibit only the “affirmative ‘authorization by law’ of gambling schemes,” and not repeals by States of exist- ing sports wagering prohibitions. After New Jersey then proceeded to repeal certain of its prohibitions on sports wagering in specified venues in the State, the en banc court reversed course and interpreted PASPA as making it “unlawful” for New Jersey to repeal its prohibitions and affirmed an injunction that requires the State to reinstate the repealed state-law prohibitions. The court then held that it was constitutional for federal law to dictate the extent to which States must maintain their prohibitions on sports wagering. The question presented is: Does a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention of New York v. United States, 505 U.S. 144 (1992)?