US Solicitor General Jeff Wall

US Solicitor General Recommends SCOTUS Declines Christie II Case

The office of acting United States Solicitor General Jeffrey Wall has issued its formal recommendation to the US Supreme Court (SCOTUS) that that court not accept New Jersey’s ongoing appeal of the “Christie II” case.  If the Supreme Court accepts the US Solicitor General’s recommendation, then legal remedies sought by the state of New Jersey and other appellants will have been exhausted, and the near-nationwide US ban on sports wagering implemented under 1992’s PASPA (Professional and Amateur Sports Protection Act) will remain the law of the land.

The US Supreme Court could still accept the Christie II appeal (formally known as a writ for certiorari), though it is highly unlikely it will do so.  SCOTUS accepts the Solicitor General’s recommendations in the large majority of instances, and when it acts contrary to the USSG’s recommendation, it’s almost always in the opposite direction — foregoing a case despite being conditionally recommended by the Solicitor General’s office.

The Christie II decision had already been upheld by a US Third Circuit appellate court, though the questions of law raised within the case already spurred an en banc review of that decision within the Third Circuit.  The plaintiffs in the case — the NFL, NHL, MLB, NBA, and NCAA — have prevailed at every legal step to date in their quest to keep New Jersey from implementing its voter-approved sports betting.

The Christie II case, according to Wall’s 30-page brief, rests on a single question: “… whether PASPA’s prohibition on state authorization of sports-gambling schemes violates the
Tenth Amendment.”

Such a violation of the US Constitution’s Tenth Amendment, which forbids the federal government from commandeering certain states’ rights, would render PASPA unconstitutional.  However, Wall’s recommendation holds that PASPA is constitutional.  And, since that matter had already been affirmed, back in the similar battle over Christie I, it doesn’t need to be readdressed.

Further, Wall shredded New Jersey’s original Christie II bill as being a “clever” workaround designed simply to allow legal sports betting only at state-licensed gambling facilities.

Wrote Wall:

If New Jersey wishes to repeal its prohibition on sports gambling altogether and thereby remain silent with respect to such gambling, or to adopt a partial repeal that is not a de facto authorization (by, for instance, lifting state penalties on informal or social wagering), PASPA does not stand in its way. But the 2014 Act’s partial repeal — which is specifically tailored to facilitate sports gambling at state-licensed casinos and racetracks — is no different from a positive enactment authorizing such gambling.

Wall’s tacit invitation to New Jersey to drop all of its prohibitions on sports wagering, thus complying with PASPA, is not something the state is likely to accept.  However, that remains the ultimate nuclear option should the state be determined to sink the quarter-century-old PASPA prohibition.  Once PASPA was formally nuked, under that admittedly unlikely scenario, the state would then be free to re-ban sports betting, but allow limited exceptions such as at state-regulated casinos and racetracks.

However, Wall’s recommendation does not indicate exactly how New Jersey’s dropping of its existing statewide sports-betting ban might not be the “strict binary choice” between blanket ban and no ban any responsible jurisdiction might seek.

Wrote Wall, in backing up the appellate ruling supporting PASPA:

And the [appellate] court rejected the district court’s conclusion that PASPA puts states to “a strict binary choice” between repealing their prohibitions on sports gambling entirely or retaining total bans. [] Instead, the court explained that “PASPA allows states to ‘choose among many different potential policies on sports wagering that do not include licensing or affirmative authorization by the State.’”

It’s a tortured nuance.  Like many of the other appellate judges hearing the Christie II case, Wall appears to be going to great lengths to keep an on-the-books law — PASPA — from being overturned.  Wall infers that New Jersey has “many different potential policies,” but invites only one, the blanket lifting of New Jersey’s existing state-wide ban.  To date, no judge siding with PASPA has provided an example of a workable third option to “blanket ban” or “no ban, no regulations,” despite their words.

Many industry observers have noted the clear parallel between the Christie II case and another challenge to a federal nationwide ban, that regarding legalization of marijuana for recreational use.  The clearest difference is that the anti-marijuana lobby has never had the financial and legal support as that propping up PASPA; the US’s major sports associations, primarily the NFL, remain the power that keeps PASPA in place.  Though that stance has weakened in recent years in the face of growing anti-PASPA public sentiment, the leagues’ wealth and power in the US still holds sway.  The pro-PASPA position is increasig seen as both hypocritica and ineffective, given the hundreds of billions of dollars wagered on sports each year in the US, almost all of which is officially illegal under PASPA

SCOTUS is likely to make its final decision regarding the Christie II writ in its next bulk rendering of court actions.  That update is expected sometime in June.

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