A U.S. Supreme Court case about the legality of a New Jersey sports betting law may not attract the attention of many progressives—but maybe it should.
The case, Christie v. NCAA , will likely have reverberations for progressive causes like sanctuary cities and marijuana decriminalization, court watchers told Bloomberg Law ( Christie v. NCAA , U.S., No. 16-476, to be argued 12/4/17 ).
At the heart of the Christie dispute is the anti-commandeering doctrine—the idea that the federal government can’t command the states to do its bidding.
The doctrine is traditionally thought to be championed by Republicans, Jonathan Wood, of the libertarian law firm Pacific Legal Foundation, Washington, told Bloomberg Law in an email. PLF filed an amicus brief in support of a robust application of the doctrine in the Christie case.
But the election of President Donald Trump “inspired a new generation of latter-day Antifederalists” wanting to curb the federal government’s powers, William J. Trunk, of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, told Bloomberg Law in an email. Robbins, Russell also filed an amicus brief in the case on behalf of a group of constitutional law scholars.
The Supreme Court’s decision in Christie may accelerate—or put the brakes on—those efforts.
At issue in Christie is the Professional and Amateur Sports Protection Act of 1992, which largely prohibits states from “authorizing” gambling related to amateur or professional sports.
But New Jersey tried to do it anyway. In response, the National Collegiate Athletics Association and some professional sports leagues sued to stop New Jersey’s new policy from taking effect.
The sports leagues in particular argued that PASPA clearly forbids New Jersey’s new path.
The state argued that the federal government can’t prohibit states from legalizing gambling. Such a compulsion would run afoul of the anti-commandeering clause, it said.
One difficulty in the case is that the anti-commandeering doctrine isn’t spelled out in the Constitution, Christopher Lasch, of the University of Denver Sturm College of Law, told Bloomberg Law. Lasch has written about immigration in general, and sanctuary cities in particular.
Instead it’s a judicially created doctrine inferred from the Tenth Amendment, he said. “The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people,” that Amendment says.
The Supreme Court first made clear that the Tenth Amendment prohibits the federal government from commandeering “the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,” in two cases from the 1990s.
Since then, there has been little discussion of the doctrine from the Supreme Court, Lasch said.
The precise contours of the doctrine are therefore still hazy, Pratheepan Gulasekaram, a constitutional and immigration law professor at Santa Clara University School of Law, Santa Clara, Calif., told Bloomberg Law.
It’s uncertain if a federal prohibition on state action—as opposed to a federal mandate to act—implicates the anti-commandeering doctrine, Lasch said.
Christie is likely just the first in a string of legal challenges that will give the federal judiciary the chance to clarify the doctrine.
In particular, the election of President Trump has “renewed interest in federalism across the political spectrum,” Wood said.
Now progressives are rightly looking to the anti-commandeering doctrine to challenge federal policies they disagree with, he said.
Even though the doctrine, at its core, “coheres with the traditionally Republican notion that states’ rights must be defended against federal-government intrusion,” it’s really a non-partisan idea, Trunk said.
If “recent history has taught us anything, it is that, regardless your political leanings, states’ rights loom much larger when you either disagree with or lack confidence in the Executive Branch,” he said.
“The anti-commandeering principle ensures that state policy reflects the values and political preferences of state voters, whether the state is red or deeply blue,” Wood said.
It also ensures that citizens know which officials—state or federal—to hold accountable for policies they disagree with, Lasch said.
Because the federal government is currently controlled by Republicans, many of Christie‘s ramifications—at least in the short term—will be felt by progressives.
For example, the viability of sanctuary cities—communities that refuse to cooperate with federal authorities to enforce federal immigration law—"may be significantly impacted based on how the Court views PASPA,” Gulasekaram said.
Recently, the Department of Justice has taken the position that large law enforcement grants to localities are conditioned on compliance with federal law that “prohibits states or localities from prohibiting communication between state and local officials and federal immigration authorities on citizenship or immigration status of an individual,” Gulasekaram said.
That’s exactly the kind of “prohibition of a prohibition” that’s at stake in Christie, he said.
“By itself,” the DOJ policy “does not force the state or locality to do anything or affirmatively cooperate,” Gulasekaram said.
But proponents of sanctuary cities as well as opponents of PASPA in Christie, argue “that by dictating how a state or locality can legislate—or by taking certain types of legislation off the table—the federal government is essentially ‘commandeering’ state legislative processes and undermining the ability of a state or locality” to control officials under their authority, Gulasekaram said.
“If the Supreme Court rejects the anti-commandeering principle in Christie, what’s to stop Congress” from telling the states they can’t instruct their law enforcement officials not to cooperate with the federal government on immigration, Wood asked.
The decriminalization of marijuana is another example of a progressive policy that could be affected by Christie.
“Marijuana legalization has been possible because the anti-commandeering principle forbids Congress from preventing states from amending their own laws,” Wood said.
That’s “precisely what’s at stake in Christie,” he said.
“Of course, Congress can forbid marijuana or sports gambling as a matter of federal law, if it’s willing to bear the costs and political repercussions of enforcing a federal ban,” Wood said.
“But the state-led marijuana reform movement shows that Congress often won’t be willing” to enforce a conflicting federal ban, he said.
If the Supreme Court allows the federal government to prohibit gambling via this more indirect route, there isn’t an obvious reason why the government couldn’t do the same with regard to marijuana, Wood said.
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