Murphy v. NCAA
138 S.Ct. 1461 (2018)
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Rule of Law:
The anticommandeering doctrine, derived from the Tenth Amendment, prohibits Congress from issuing direct orders to state legislatures, regardless of whether the command compels a state to enact legislation or prohibits a state from enacting or repealing its own laws.
Facts:
- In 1992, Congress enacted the Professional and Amateur Sports Protection Act (PASPA), which made it unlawful for a state to 'authorize by law' sports gambling.
- PASPA included a 'grandfather' clause for states that already permitted sports gambling and gave New Jersey a one-year window to legalize it, an option the state did not take at the time.
- In 2011, New Jersey voters approved an amendment to the state's constitution giving the legislature the authority to legalize sports gambling.
- Following the constitutional amendment, the New Jersey legislature enacted a law in 2012 to license and regulate sports betting at casinos and racetracks.
- After the 2012 law was challenged, the New Jersey legislature enacted a new law in 2014, which was framed as a repeal of state-law prohibitions on sports wagering at specific locations for adults over 21.
Procedural Posture:
- The National Collegiate Athletic Association (NCAA) and major professional sports leagues sued New Jersey's Governor in the U.S. District Court for the District of New Jersey to enjoin the state's 2012 sports gambling law.
- The District Court found PASPA constitutional and issued a permanent injunction against New Jersey's 2012 law.
- New Jersey appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the District Court's ruling.
- The U.S. Supreme Court denied certiorari for the case involving the 2012 law.
- After New Jersey enacted its 2014 repealer law, the same plaintiffs filed a new suit.
- The District Court again ruled for the plaintiffs, finding the 2014 law violated PASPA.
- The U.S. Court of Appeals for the Third Circuit, sitting en banc, affirmed the District Court's decision, holding that the 2014 law was a prohibited 'authorization' and that PASPA's prohibition was constitutional.
- The U.S. Supreme Court granted certiorari to review the Third Circuit's en banc decision.
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Issue:
Does the Professional and Amateur Sports Protection Act's prohibition against state authorization of sports gambling schemes violate the Constitution's anticommandeering principle?
Opinions:
Majority - Justice Alito
Yes. The Professional and Amateur Sports Protection Act's anti-authorization provision violates the constitutional principle of anticommandeering. This doctrine prohibits Congress from issuing direct orders to the States. The distinction between an affirmative command to enact a law and a prohibition against repealing or modifying a law is an empty one; both represent unconstitutional direct commands to a state legislature. PASPA's provision is not a valid preemption because it regulates the actions of the state government itself, not the conduct of private actors. Because the unconstitutional anti-authorization and anti-licensing provisions are central to the statutory scheme, they are not severable from the remainder of the Act, rendering the entire statute unconstitutional.
Concurring - Justice Thomas
Yes. Justice Thomas joined the majority in full but wrote separately to express his 'growing discomfort' with the Court's modern severability precedents. He argued that the judicial practice of inquiring into hypothetical congressional intent to decide if parts of a statute can survive is in tension with the traditional limits on judicial authority, which is to render judgments in specific cases, not to rewrite or 'excise' statutes. He suggested that in a future case, the Court should reconsider whether this approach is a proper exercise of the judicial power.
Dissenting - Justice Ginsburg
No. While assuming the anti-authorization provision was an unconstitutional commandeering, Justice Ginsburg argued that the Court should have severed the problematic provisions rather than striking down the entire statute. She contended that the remaining parts of PASPA, such as the direct prohibition on states operating sports-gambling schemes and the prohibition on private parties operating such schemes pursuant to state law (§3702(2)), are constitutionally sound exercises of Congress's commerce power. The Court's decision to use a 'wrecking ball' instead of a 'scalpel' was an error that unnecessarily invalidated the entire federal scheme.
Concurring in part and dissenting in part - Justice Breyer
Yes, in part. Justice Breyer agreed with the majority that PASPA's command to the states in §3702(1) is unconstitutional. However, he joined Justice Ginsburg's dissent regarding severability, arguing that §3702(2), which directly regulates private individuals, is a constitutional exercise of federal power that can and should survive independently of the unconstitutional provision.
Analysis:
This landmark decision effectively ended the federal prohibition on sports gambling, empowering individual states to decide whether to legalize and regulate it. The ruling significantly reinforced the anticommandeering doctrine by clarifying that federal prohibitions on state action are as unconstitutional as affirmative commands. By striking down PASPA in its entirety due to non-severability, the Court created a clean slate for state-level regulation, leading to a rapid expansion of legalized sports betting across the United States and creating a new, significant source of state tax revenue.
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