A Closer Look Inside the NJTHA US Supreme Court Sports-Betting Petition
Today, we’ll return to the busy gambling state of New Jersey, which remains the focal point of a broad push across the United States to legalize sports betting both in that state, and perhaps eventually, across the country. Last week, we reported on two petitions for writs of certiorari filed by New Jersey sports-betting proponents, the latest salvo in a years-long battle between New Jersey and the US’s major sports federations, which have lobbied hard to prevent any expansion in sports betting within the US. Here, we’ll offer a lightly-abridged excerpt from the recent NJTHA [New Jersey Thoroughbred Horsemen’s Association petition, which follows the August en banc appellate decision by the US Third Circuit Court of Appeals that upholds that court’s own earlier ruling.
The NJTHA, closely associated with New Jersey’s Monmouth Park racetrack, one of the East Coast’s most prominent horseracing facilities, believes that only legalized sports betting can help reverse the slow decline that has affected both pari-mutuel wagering and gambling in New Jersey — a financial double-whammy that dampens Monmouth Park’s long-term prospects.
The following excerpt is, largely, the first of two arguments the NJTHA makes in its petition. Whether or not the Supreme Court accepts the case — and that is highly unlikely in terms of the percentage of cases that the US’s highest appellate court actually excepts, the excerpt nonetheless offers some good reading on why the current PASPA [Professional and Amateur Sports Protection Act] is manifestly unfair.
Titled “The Third Circuit’s Flouting of This Court’s Anti-Commandeering Precedents Deprives the NJTHA and the People of New Jersey of the Political and Individual Liberties
That Federalism is Designed to Protect,” here’s that argument, which draws strongly on comparisons to marijuana-legalization laws that have been passed in several other US states:
The Petition for Certiorari filed by the State Defendants – which the NJTHA fully supports and incorporates by reference – demonstrates that the Court of Appeals flouted this Court’s anti-commandeering precedents by requiring the State of New Jersey to keep in place criminal prohibitions that the State has chosen to lift.
While the State of New Jersey correctly objects to this violation of its sovereignty, our federalism does not merely protect the States, but also “secures to citizens the liberties that derive from the diffusion of sovereign power.” [case citation] The liberties protected by federalism are both political and individual.
Politically, federalism “allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” [case citation] Individually, federalism “protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.”  These are not abstract matters for the NJTHA and its more than 3,000 members, which find themselves deprived by the Third Circuit’s decision of both their political and individual liberties.
The NJTHA operates Monmouth Park Racetrack, a New Jersey institution since 1870 and an integral part of all aspects of the State’s tourist and equine industry. Foreseeing that Monmouth Park’s economic survival depends on sports wagering, and that its closure would endanger the entire equine industry in New Jersey (including thousands of jobs and thousands of acres of open space), the NJTHA joined with citizens across New Jersey to change the state law prohibiting sports betting. It did so not once, but twice – the second time in reliance on the assurances that the Third Circuit, the Leagues, and the United States provided to explain their rejection of NJTHA’s first efforts.
These exercises of political liberty have been nullified because the Third Circuit reversed course and held that the content of New Jersey law can be dictated by the national government, in derogation of the will of the people of New Jersey and their elected representatives.
Monmouth Park is not free to offer sports wagering to its customers. And Monmouth Park’s customers are not free to engage in sports wagering. Why? Not because the Congress of the United States has exercised its power to regulate interstate commerce to directly prohibit Monmouth Park and its customers from engaging in sports betting. Congress has passed no federal law that directly prohibits sports betting at Monmouth Park. And not because the Legislature of New Jersey has exercised its police power to prohibit that activity. To the contrary, the State Legislature has repealed the prior state law prohibiting sports betting at Monmouth Park.
Monmouth Park and its customers are not free to engage in sports betting because federal judges have decreed that the prior State law prohibition against sports betting must remain in place as New Jersey law, despite an Act of the New Jersey Legislature repealing that prohibition. Thus, if the NJTHA offered sports wagering at Monmouth Park, it would face the risk of prosecution by New Jersey State officials, in a New Jersey State court, for a violation of New Jersey State law – not because of decisions made by the New Jersey Legislature and Executive, but because State officials are under a federal injunction not to give effect to the State Legislature’s repeal of State law.
The NJTHA would find itself defending a charge that it violated a State law that remained State law only because of a federal compulsion in the form of a federal injunction, and prosecuted by State executives forced to prosecute only because of a federal injunction. Such commandeering of State law conflicts with [case citation], and such conscription of State law enforcement officials to carry out a federal mandate violates [another case citation]. Each violation results in the unconstitutional deprivation of the political and individual liberties protected by our federalism.
In conflict with the Third Circuit’s decision, the highest courts in several States have recognized that the national government lacks the constitutional authority to require States to freeze in place State law prohibitions. [case citations] In these decisions, the Supreme Court of Arizona, the Supreme Court of Michigan, and the Supreme Court of Montana each relied on anticommandeering principles to uphold the validity of State laws removing, for qualified patients, prior State law prohibitions of marijuana. See also Conant v. Walters,  (“much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. . . . If the federal government could make it illegal under federal law to remove a state-law penalty, it could then accomplish exactly what the commandeering doctrine prohibits: The federal government could force the state to criminalize behavior it has chosen to make legal.”).
Under the Third Circuit’s interpretation of the United States Constitution, all of these State Court decisions are wrong. Under the Third Circuit’s reasoning, Congress has the constitutional power to prohibit States from selectively removing State law prohibitions on private conduct. The Third Circuit, unlike those State Courts, failed to recognize that while State law cannot create a defense to a federal prosecution, a State remains free to prohibit as little private conduct as it chooses under its own law.
This Court alone can make the Constitution uniform across the nation. Martin v. Hunter’s Lessee,  (noting that without this Court’s appellate jurisdiction “the constitution of the United States would be different in different states,” producing “truly deplorable” “public mischiefs”). The Third Circuit failed to see that the Constitution, properly interpreted, leaves the people of New Jersey as free to exercise their liberties and partially remove New Jersey’s prior State law prohibiting sports gambling as it leaves the people of Arizona, Michigan, and Montana free to partially remove their prior State law prohibitions
This Court should grant certiorari and make this promise of liberty-enhancing federalism uniform throughout the country.
The brief, and this excerpt from it, was prepared by attorneys Ronald J. Riccio and Edward J. Hartnett on behalf of Monmouth Park and the NJTHA.