Odds Drop On Sports-Betting Ban As Supreme Court Hears New Jersey Case

Dec 4, 2017
Originally published on February 27, 2018 8:37 am

At the U.S. Supreme Court on Monday, the justices signaled they may be prepared to strike down the federal ban on sports betting.

Enacted 25 years ago, the law prohibits states from legalizing sports betting, except where it was already legal. That exemption applied to Nevada, Delaware, Montana and Oregon.

But now, with estimates of illegal betting running at $150 billion annually, cash-starved states are getting itchy.

The 1992 law was sponsored by former basketball great Bill Bradley, who served three terms in the U.S. Senate. On Monday, New Jersey's outgoing Gov. Chris Christie carried the banner for getting rid of the Bradley Act.

"If the federal government wants to pass a law to regulate and preempt, they have the right to do that," Christie said on the steps of the Supreme Court. "They didn't do that here. They foisted that upon us, on the people of the state of New Jersey, who voted 65 percent in 2011, that they no longer wanted this law."

Inside the courtroom, former Solicitor General Ted Olson argued that because the Bradley Act doesn't clearly state a federal policy against sports betting, it unconstitutionally tramples on a state's right to authorize sports betting at casinos and racetracks.

Chief Justice John Roberts interjected that the law is "pretty comprehensive." It's a "total prohibition," he said.

No it's not, argued Olson. It puts the burden of enforcement on the states. And that violates the Constitution's ban on commandeering, or conscripting, the state into enforcing a federal mandate.

But Justices Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor all noted that the court has long recognized that the federal government may preempt states from acting under circumstances such as these. The federal government says to the states: "We've got this. You can't do anything," Justice Kagan said.

Arguing the other side of the case on behalf of the major sports leagues was former Solicitor General Paul Clement, backed up by the Trump administration and its deputy solicitor general, Jeffrey Wall.

Clement got his first volley of hostile fire from Justice Anthony Kennedy. "This blurs the line of accountability," Kennedy said. "The citizen doesn't know, is this coming from the federal government? Is this coming from the state government? That's precisely what [our constitutional system of] federalism is designed to prevent."

Justice Stephen Breyer added, "All we have here are a group of provisions telling states what they cannot do, at the same time the federal government does not have a clear federal policy."

Clement insisted that the federal law does outline a clear policy against sports gambling: It says "there's something that is essentially a cancer ... that we don't want to take place."

Justice Neil Gorsuch had a different take on the federal law, suggesting that Congress was trying to do it on the "cheap" so it didn't have to expend any funds.

Deputy Solicitor General Wall, in his turn at the lectern, told the justices that New Jersey's claim that there is no comprehensive regime is just "made up." New Jersey's only interest here, he said, is in the hundreds of millions — perhaps even billions — of dollars it can reap from licensing fees and taxes on sports betting at casinos and racetracks.

Chief Justice Roberts asked if the state could repeal the ban on sports betting across the board.

It could, if it wanted to, replied Wall.

"You're not serious," shot back the chief justice. "A 12-year-old" could come into a casino and placed a bet? he asked.

Wall replied that the problem that Congress was confronting here was state-sponsored and sanctioned gambling schemes, not a bet with your buddies or an office pool, or a stray 12-year-old.

Still, when all was said and done, it looked very much as though five or more justices had serious doubts about the current law.

And outside on the Supreme Court steps, an ebullient Christie knew it. "If we're successful here, we can have bets being taken in New Jersey within two weeks of a decision by the court," he said. "We're like boy scouts; we're prepared."

The repercussions of a New Jersey victory in the sports betting case could extend well beyond gambling. Christie conceded that if New Jersey wins this battle, the next such challenge may come from states that have legalized the sale of marijuana.

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KELLY MCEVERS, HOST:

At the U.S. Supreme Court today, the justices signaled they might be prepared to strike down the federal ban on sports betting. It was enacted in 1992, and it prohibits states from legalizing sports betting except in states where it was already legal at the time. That exemption applied to only four states. But now with estimates of illegal betting running at $150 billion each year, cash-starved states are getting antsy. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The federal law was sponsored by one-time basketball great Bill Bradley, who served three terms in the U.S. Senate from New Jersey. As he put it in an interview with NPR, he opposes sports betting because...

BILL BRADLEY: It turns players into roulette chips.

TOTENBERG: But on the steps of the Supreme Court today, it was New Jersey's governor, Chris Christie, who carried the banner for getting rid of the Bradley Act.

(SOUNDBITE OF ARCHIVED RECORDING)

CHRIS CHRISTIE: If the federal government wants to pass a law to regulate and preempt, they have the right to do that. They didn't do that here. They foisted that upon us, on the people of the state of New Jersey who voted 65 percent in 2011 that they no longer wanted this law.

TOTENBERG: Inside the courtroom, former Solicitor General Ted Olson argued that because the Bradley Act doesn't clearly state a federal policy against sports betting, it unconstitutionally tramples on a state's right to authorize sports betting at casinos and racetracks.

Chief Justice Roberts - this law is pretty comprehensive. It's a total prohibition. No, it's not, argued Olson; it puts the burden of enforcement on the states, and that violates the Constitution's ban on commandeering or conscripting the state into enforcing a federal mandate. But Justices Kagan, Ginsburg and Sotomayor all noted that the court has long recognized that the federal government may preempt states from acting under circumstances such as these. Justice Kagan - it says to the states, we've got this; you can't do anything.

Arguing the other side of the case on behalf of the sports leagues was former Solicitor General Paul Clement and, on behalf of the Trump administration, Deputy Solicitor General Jeffrey Wall.

Clement got his first volley of hostile fire from Justice Kennedy. This blurs the line of accountability. The citizen doesn't know - is this coming from the federal government? Is this coming from the state government? That's precisely what our constitutional system of federalism is designed to prevent. Justice Breyer - all we have here are a group of provisions telling states what they cannot do. At the same time, the federal government does not have a clear federal policy.

The federal law is comprehensive, replied Clement. It says there's something that's essentially a cancer that we don't want to take place. Justice Gorsuch - Congress is trying to do it on the cheap so it didn't have to expend any funds. Deputy Solicitor General Wall, in his turn at the lectern, told the justices that New Jersey's claim that there's no comprehensive regime is just made up. New Jersey's only interest here, he said, is in the hundreds of millions, perhaps even billions of dollars it could reap from licensing fees and taxes on sports betting at casinos and racetracks.

Chief Justice Roberts - what if the state repealed the ban on sports betting across the board? Answer - it could do that. You're not serious, shot back the chief justice. A 12-year-old could come into a casino and place a bet. Wall replied that the problem that Congress was confronting here was state-sponsored and sanctioned gambling schemes, not a bet with your buddies or an office pool or a stray 12-year-old.

Still, when all was said and done, it looked very much as though five or more justices had serious doubts about the current law. And outside on the Supreme Court steps, an ebullient Governor Christie knew it.

(SOUNDBITE OF ARCHIVED RECORDING)

CHRISTIE: If we are successful here, we could have bets being taken in New Jersey within two weeks of a decision by the court.

TOTENBERG: Because?

CHRISTIE: Because...

TOTENBERG: Have you been planning it?

CHRISTIE: Because we're like - Nina, because we're like Boy Scouts. We're prepared.

TOTENBERG: Christie conceded, though, that if New Jersey wins this battle, the next such challenge may come from states that have legalized the sale of marijuana. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.