Of the many attempts by New Jersey officials to wangle a do-over of the state’s failure 20 years ago to legalize sports betting, Senator Raymond Lesniak’s latest end-around—S2250, overwhelmingly passed by the Senate and Assembly in June, only to be vetoed this week by Gov. Chris Christie—may have been too clever for its own good. Certainly it was discomforting for a governor who thinks he might want to run for president in two years.
Instead of authorizing sports betting in violation of the federal ban on the activity codified in the U.S. Professional and Amateur Sports Protection Act (PASPA), a battle that ended in June when the U.S. Supreme Court refused to hear New Jersey’s challenge to PASPA’s constitutionality, Lesniak’s solution, crafted in May, a month before anyone knew what the high court would do, was a bill repealing the state’s own sports betting ban, the one the Legislature did not repeal back in 1992-93 within the year-long window PASPA provided to any state wishing to legalize.
Sound complicated? Well, it is, a little. It’s not uninteresting, though.
It started with a frontal assault and ended with a sneak attack. The Legislature passed a bill at the end of 2011 legalizing sports betting, and Christie promptly signed it, daring the major sports leagues and the federal government to intervene. They did, suing in federal court the following spring on the grounds that the law violated PASPA. S2250 takes the opposite approach, one Lesniak claims was implicitly endorsed by the very federal lawyers who successfully defended PASPA and beat back the New Jersey law last June before the 3rd U.S. Circuit Court of Appeals.
The issue before the Circuit judges was how to interpret PASPA in light of the 10th Amendment to the Constitution (one of the five Lesniak has trotted out over the years, along with the “Commerce Clause” and the “Equal Protections Clause,” in his anti-PASPA crusade).
The issue before the Circuit judges was how to interpret PASPA in light of the 10th Amendment to the Constitution (one of the five Lesniak has trotted out over the years, along with the “Commerce Clause” and the “Equal Protections Clause,” in his anti-PASPA crusade).
The gist of the 10th Amendment is that “[those] 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”. What made this potent for New Jersey’s cause is a refinement recently developed by the Supreme Court’s current conservative majority. It’s known as the “anti-commandeering rule,” and it aims to prevent the federal government from bypassing the amendment by pressuring states to enact legislation or implement a particular policy. U.S. Attorney Paul Fishman argued before the Circuit Court that PASPA does not violate the rule because it does not force the states to prohibit sports betting. He said New Jersey could choose not to regulate it either way. “It would be a really, really bad idea,” he said. But PASPA does not prohibit it.
Ultimately, New Jersey would come away empty-handed. The judges would uphold PASPA. But in doing so they took up Fishman’s point, stating in their majority decision that they do “not read PASPA to prohibit New Jersey from repealing its ban on sports wagering”.
Ultimately, New Jersey would come away empty-handed. The judges would uphold PASPA. But in doing so they took up Fishman’s point, stating in their majority decision that they do “not read PASPA to prohibit New Jersey from repealing its ban on sports wagering”.
They stated further that “It is left up to each state to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be.”
Out of that apparent loophole squirmed S2250.
Passed just three days after the Supreme Court declined to hear the state’s appeal of the 3rd Circuit’s ruling, it declared that “All prohibitions … against wagering on the results of any professional, college, or amateur sport or athletic event, are partially repealed to the extent they would apply to such wagering at casinos or gambling houses in Atlantic City or at current running and harness horse racetracks in this State.”
So New Jersey wouldn’t be authorizing sports betting. It would no longer ban it either. It would be as Fishman suggested, and it would free the casinos and the tracks to run bookmaking operations if they choose and as they saw fit. The state simply would look the other way.
It’s straightforward enough. Or is it? Clearly, the sports books would not be required to obtain licensing for their operations and/or their employees, since obviously none would be available. No background checks, no regulatory probity, no rules other than those set by management. No tax obligation either, taxation implying official recognition and therefore approbation. The bill, all three paragraphs of it, doesn’t say.
“An unprecedented move” was how Christopher Soriano, chairman of the Casino Law Section of the N.J. State Bar Association, saw it. “No other state has ever tried this.” He said, “We haven’t had this interesting of a cutting-edge legal issue in the casino industry for years.”
Christie acknowledged it, too, as “novel,” he also described it as “rushed,” and it was more than he said he could countenance.
Out of that apparent loophole squirmed S2250.
Passed just three days after the Supreme Court declined to hear the state’s appeal of the 3rd Circuit’s ruling, it declared that “All prohibitions … against wagering on the results of any professional, college, or amateur sport or athletic event, are partially repealed to the extent they would apply to such wagering at casinos or gambling houses in Atlantic City or at current running and harness horse racetracks in this State.”
So New Jersey wouldn’t be authorizing sports betting. It would no longer ban it either. It would be as Fishman suggested, and it would free the casinos and the tracks to run bookmaking operations if they choose and as they saw fit. The state simply would look the other way.
It’s straightforward enough. Or is it? Clearly, the sports books would not be required to obtain licensing for their operations and/or their employees, since obviously none would be available. No background checks, no regulatory probity, no rules other than those set by management. No tax obligation either, taxation implying official recognition and therefore approbation. The bill, all three paragraphs of it, doesn’t say.
“An unprecedented move” was how Christopher Soriano, chairman of the Casino Law Section of the N.J. State Bar Association, saw it. “No other state has ever tried this.” He said, “We haven’t had this interesting of a cutting-edge legal issue in the casino industry for years.”
Christie acknowledged it, too, as “novel,” he also described it as “rushed,” and it was more than he said he could countenance.
“While I do not agree with the Circuit Court’s decision, I do believe that the rule of law is sacrosanct, binding on all Americans,” he wrote in a veto message that sounded as though it’d been written for a much bigger audience. “That duty adheres with special solemnity to those elected officials privileged to swear an oath to uphold the laws in our nation.” It went on, “Ignoring federal law, rather than working to reform federal standards, is counter to our democratic traditions and inconsistent with the constitutional values I have sworn to defend and protect.”
Lesniak was not impressed. “Either we’re going to have to try to override him or wait until we get another governor,” he said.
Yet, it doesn’t sound like the game is over either, more like the sides have retreated to their respective locker rooms, and the one behind in the score is huddling on a new plan for marching down the field in the second half.
Christie, for one, has said the Circuit Court “may not have foreclosed all legal avenues for permitting sports wagering within the state,” but the state needs to “determine if a different approach would comply with federal law”.
It’s been reported in the meantime that Ted Olsen, the famed attorney who won the 2000 Supreme Court case in Bush v. Gore and wrote the brief for New Jersey’s appeal, might return to assist him with exploring alternatives the governor termed “legally sound”.
Yet, it doesn’t sound like the game is over either, more like the sides have retreated to their respective locker rooms, and the one behind in the score is huddling on a new plan for marching down the field in the second half.
Christie, for one, has said the Circuit Court “may not have foreclosed all legal avenues for permitting sports wagering within the state,” but the state needs to “determine if a different approach would comply with federal law”.
It’s been reported in the meantime that Ted Olsen, the famed attorney who won the 2000 Supreme Court case in Bush v. Gore and wrote the brief for New Jersey’s appeal, might return to assist him with exploring alternatives the governor termed “legally sound”.