New Jersey Sportsbetting Push: Inside the DOJ Memorandum Supporting PASPA
The state of New Jersey’s three-year-long battle to implement the state-regulated sports betting as approved by voter referendum in 2011 remains a battle of wills between the state and its federal-level foes. Despite claims by state legislators that live sportsbetting is only weeks away, with the reality of New Jersey sportsbetting still may be somewhere off in the future.
Despite a recent directive issued New Jersey’s acting attorney general and a statement from NJ Governor Chris Christie that the state’s existing anti-sportsbetting laws won’t be enforced against state-licensed gambling outlets, there’s still the matter of the standing federal PASPA (Professional and Amateur Sports Protection Act) law to be dealt with.
It’s PASPA, after all, that a US Circuit Judge Michael J. Shipp upheld in ruling against New Jersey’s claims of unconstitutionality last year, just as it’s PASPA, on the books for more than three decades, that remains the law of the land. After its case to overturn PASPA was denied an appeal to the US Supreme Court, New Jersey legal officials returned to Judge Shipp, demanding a “clarification” of the ruling.
Meanwhile, Christie’s statement and the accompanying New Jersey AG directive attempted to keep at least a couple of select phrases of the state’s planned Sports Wagering Act in force through a legal theory known as severability. Severability allows certain parts of a statute to remain in force if they can be legally removed from other portions of a law that might be deemed unconstitutional or invalid, if the severed portions of the law can stand on their own, which turns out to be a huge problem for New Jersey’s latest legal effort.
Last week, we examined the legal response submitted by the five American sports associations who successfully filed suit to block New Jersey’s sportsbetting plans — the NFL, NCAA, NBA, NHL and MLB. Since New Jersey’s request for a clarification involved that same case, the leagues have the legal right to respond to any reopening of the matter. We looked at the leagues’ initial response memorandum last week, which did a good job of poking large holes in the state’s arguments.
Late on Friday, the Department of Justice, which has successfully included itself as a party in the case defending the interests of PASPA as a federal law, filed its own memorandum. The DOJ took square aim at the state’s pretense of severability regarding the attempt to preserve a few scant phrases of the overruled Sports Wagering Act, while effectively skewering both the act and the recent efforts by New Jersey officials to construct a PASPA workaround in the face of the standing federal ban.
Both the leagues and the DOJ have yet to submit the final versions of their briefs, and the state will also have a chance to respond before Shipp rules on the matter at the end of the month. Yet there’s little reason to believe that the ruling will do anything but reaffirm the earlier decisions and deny the state even the “clarification” it so desires.
The three arguments made by the DOJ in its filing parallel those made by the sports leagues in their separate brief, though the emphasis is different, and largely made on the first point, the severability question:
I. New Jersey’s theory of severability is deeply flawed and New Jersey’s motion should be denied for threshold reasons;
II. Clarification of the court’s [preexisting] order is futile because even as purportedly severed, the Sports Wagering Act violates PASPA;
III. New Jersey presents no exceptional circumstances to justify modification of the court’s permanent injunction.
Point II of the above deals with the fact that the recent New Jersey directive approved by Christie tries to leave the framework of the Sports Wagering Act in place, while pretending that it’s not really a law authorizing sports betting. Point III argues that since the Supreme Court denied an appeal and Christie himself even uttered a quote at that time affirming that “the rule of law was sacrosanct,” that the exceptional circumstances needed for a clarification simply don’t exist.
It’s in the first of the three points, though, where the DOJ’s legal team really wield the cutlery. Along with the general argument that precedes it, the DOJ brief akes clear in arguing that New Jersey’s attempt to sever two sentence fragments from the ruled-against Sports Wagering Act, claim severability, and pretend they’ll stand on their own… just doesn’t make legal sense.
This statement, leading off the argument against New Jersey’s severability claim, may about the most coherent thing a DOJ clerk has ever written:
New Jersey’s approach to severability is unfounded in law. New Jersey does not seek to sever isolated or discrete parts of the Sports Wagering Act, but instead discards the near entirety of the Act, except for two clauses that must be uprooted from the context and conditions of the sentences in which they are found. That theory of severability should be rejected.
Elsewhere, the DOJ brief asserts this:
Apparently recognizing the novelty of this analysis, New Jersey accompanied its Directive with this motion to clarify or modify the Court-issued permanent injunction, which prevents News Jersey from licensing or authorizing by law sports wagering.
In other words, the DOJ is asserting that through its own actions, it already realizes that this Directive probably won’t fly. Back in our previous look at the state’s attempt to receive clarification, we wondered if it wasn’t part of a complex stalling game implemented by Gov. Christie, attempting to appease his state’s business interests on the one hand while not totally trashing his own Presidential aspirations. Allowing a hopelessly muddled mess on the topic to linger for years might accomplish just that, and while such possibilities are beyond the scope of the DOJ’s submission in the case, there’s something about it carries an inkling of the same belief, since it elaborates on Christie’s flip-flopping in the matter.
In any event, New Jersey legislators already seem prepared for another ruling against the state’s sportsbetting plans by Judge Shipp. A new bill is under consideration, but whether that can pass PASPA muster remains to be seen as well.
We’ll close this with the primary argument that the DOJ makes to Judge Shipp in defending PASPA. Needless to say, it likely sums things up:
The United States has a clear interest in defending this Court’s prior judgment upholding the constitutionality of PASPA, and in addition, the United States opposes New Jersey’s motion to ensure that no obstacle exists to PASPA’s intended operation. As a matter of law, procedural and statutory interpretation matters should be resolved before reaching any issue of constitutional dimension.  (“[I]t is well established that courts have a duty to avoid passing upon a constitutional question if the case may be disposed of on some other ground.”).
In moving to clarify or modify the permanent injunction issued by this Court, New Jersey relies on a deeply flawed theory of severability that has no grounding in law and provides no clear meaning to the Sports Wagering Act. The Court may deny New Jersey’s motion on that basis alone without evaluating PASPA’s scope or applicability. Nonetheless, even as purportedly severed, the Sports Wagering Act violates provisions of PASPA whose constitutionality has already been sustained. Accordingly, there is no valid basis to clarify or modify the Court’s permanent injunction.