New Jersey takes sports betting case to the Supreme Court

Ted Olsen, New Jersey’s lawyer, will argue that PASPA is a fundamental violation of the Tenth Amendment. (Image: Jack Gruber/USA Today)

New Jersey is taking its fight for sports betting to the highest court in the land. Two petitions, filed last week in the Supreme Court by the State of New Jersey and the New Jersey Thoroughbred Horsemen’s Association respectively, each argue that the federal ban on sports betting is a violation of the Tenth Amendment and of states’ rights to make their own laws.

New Jersey has been pushing for legal sports betting at its casinos and racetracks since 2012 only to be rebuffed twice in the US District court and twice more in the court of appeals, most recently in August.

The courts have ruled that the even a partial repeal of the ban on sports betting would be a violation of the Professional and Amateur Sports Protection Act 1992 (PASPA). PAPSA sought to define the legality of sports betting, as opposed to pari-mutuel horse and dog racing, and ultimately made it unlawful for states to “authorize [the practice] by law.”

Only states that had legalized sports wagering prior to 1992 were permitted to continue to license it. Nevada is the only state permitted to offer it fully, while Oregon, Delaware and Montana are able to do so in limited forms.   

Has New Jersey Missed its Chance?

PASPA left a 12-month window of opportunity that would have permitted “states that have legalized casinos within the past decade” to legalize sports betting, an opportunity that New Jersey, as the only state fitting that description, failed to grasp.

Now, sorely regretting the missed opportunity, and with its embattled casinos facing increased competition from casino expansion in neighboring states, New Jersey wants back in.

Much of the argument in the state’s most recent appeal centered on the definition of “authorizing” and whether simply not enforcing a law amounted to the same. The court contended that it did, and so the argument in the new filing will contend mainly that PASPA infringes on New Jersey’s sovereignty and is unconstitutional.

It notes that the Supreme Court has said that Congress may not “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

Tenth Amendment Violation

Ted Olson, the former Assistant US Attorney General, representing New Jersey, will argue that this is exactly what PASPA does. “This federal takeover of New Jersey’s legislative apparatus is dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties,” reads the filing.

“Never before has congressional power been construed to allow the federal government to dictate whether…a State may repeal…its own state-law prohibitions on private conduct.”

While New Jersey’s chances may be slim in the light of previous rejections, there does seem to be a slowly growing appetite among other states to challenge PASPA, and, just as importantly, a thawing of attitudes among some of the major sports leagues towards sports betting. The leagues have been a major impediment to New Jersey’s ambitions and have continually challenged them in the courts.