Andrew P. Napolitano analyzes the constitutional law behind the Supreme Court’s recent decision on sports betting. From Napolitano at lewrockwell.com:
In 1992, Congress passed a statute authored by then-Sen. Bill Bradley of New Jersey, who was a former Princeton University and New York Knicks basketball superstar, prohibiting the states from authorizing sports betting. At that time, gambling in Atlantic City was flourishing, and notwithstanding one of its own senators’ efforts to keep gambling away from competitive sports, the state of New Jersey wanted to duplicate Las Vegas’ success with sports betting.
When Bradley’s legislation grandfathered the state of Nevada, legislators in New Jersey came up with an idea to get around the federal legislation that would permit Atlantic City casinos to compete with those in Las Vegas by repealing all laws about sports betting, thereby escaping the federal prohibition on “authorizing” sports betting. It would be up to the casinos to set up their own betting parlors for college and professional sports, and in so doing, they could increase their own bottom lines and thus the state’s tax revenues.
When major professional sports leagues and the NCAA challenged this, a federal district court in Newark read the ‘thou shalt not authorize’ language to mean ‘thou shalt not permit under any circumstances.’ That ruling was upheld by a federal appeals court in Philadelphia, and New Jersey appealed its case to the U.S. Supreme Court, which ruled in its favor earlier this week.
Get ready to call your bookie.
The Supreme Court decision reinforces the anti-commandeering jurisprudence of the 10th Amendment, which was dormant from the New Deal era to the mid-1990s. Recall that the states formed the federal government, not the other way around. When they did so, they delegated certain areas of governmental authority to the feds, and as new states were added to the Union, they did the same.
The 10th Amendment is the constitutional recognition of the truism that the legislative powers that the states did not delegate to Congress they retained for themselves.
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