PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. NEW JERSEY THOROUGHBRED HORSEMEN'S ASSOCIATION, INC., PETITIONER
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.
December 4, 2017 [*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
Professional and Amateur Sports Protection Act (PASPA) makes
it unlawful for a State or its subdivisions "to sponsor,
operate, advertise, promote, license, or authorize by law or
compact ... a lottery, sweepstakes, or other betting,
gambling, or wagering scheme based . . . on" competitive
sporting events, 28 U.S.C. §3702(1), and for "a
person to sponsor, operate, advertise, or promote" those
same gambling schemes if done "pursuant to the law or
compact of a governmental entity, " §3702(2). But
PASPA does not make sports gambling itself a federal crime.
Instead, it allows the Attorney General, as well as
professional and amateur sports organizations, to bring civil
actions to enjoin violations. §3703.
"Grandfather" provisions allow existing forms of
sports gambling to continue in four States,
§3704(a)(1)-(2), and another provision would have
permitted New Jersey to set up a sports gambling scheme in
Atlantic City within a year of PASPAs enactment,
Jersey did not take advantage of that option but has since
had a change of heart. After voters approved an amendment to
the State Constitution giving the legislature the authority
to legalize sports gambling schemes in Atlantic City and at
horseracing tracks, the legislature enacted a 2012 law doing
just that. The NCAA and three major professional sports
leagues brought an action in federal court against New
Jersey's Governor and other state officials (hereinafter
New Jersey), seeking to enjoin the law on the ground that it
violates PASPA. New Jersey countered that PASPA violates the
Constitution's "anticommandeering" principle by
preventing the State from modifying or repealing its laws
prohibiting sports gambling. The District Court found no
anticommandeering violation, the Third Circuit affirmed, and
this Court denied review.
2014, the New Jersey Legislature enacted the law at issue in
these cases. Instead of affirmatively authorizing sports
gambling schemes, this law repeals state-law provisions that
prohibited such schemes, insofar as they concerned wagering
on sporting events by persons 21 years of age or older; at a
horseracing track or a casino or gambling house in Atlantic
City; and only as to wagers on sporting events not involving
a New Jersey college team or a collegiate event taking place
in the State. Plaintiffs in the earlier suit, respondents
here, filed a new action in federal court. They won in the
District Court, and the Third Circuit affirmed, holding that
the 2014 law, no less than the 2012 one, violates PASPA. The
court further held that the prohibition does not
"commandeer" the States in violation of the
1. When a State completely or partially repeals old laws
banning sports gambling schemes, it "authorize [s]"
those schemes under PASPA. Pp. 9-14.
(a) Pointing out that one accepted meaning of
"authorize" is "permit, " petitioners
contend that any state law that has the effect of permitting
sports gambling, including a law totally or partially
repealing a prior prohibition, amounts to authorization.
Respondents maintain that "authorize" requires
affirmative action, and that the 2014 law affirmatively acts
by empowering a defined group of entities and endowing them
with the authority to conduct sports gambling operations.
They do not take the position that PASPA bans all
modifications of laws prohibiting sports gambling schemes,
but just how far they think a modification could go is not
clear. Similarly, the United States, as amicus,
claims that the State's 2014 law qualifies as an
authorization. PASPA, it contends, neither prohibits a State
from enacting a complete repeal nor outlaws all partial
repeals. But the United States also does not set out any
clear rule for distinguishing between partial repeals that
constitute the "authorization" of sports gambling
and those that are permissible. Pp. 10-11.
(b) Taking into account the fact that all forms of sports
gambling were illegal in the great majority of States at the
time of PASPA's enactment, the repeal of a state law
banning sports gambling not only "permits" sports
gambling but also gives those now free to conduct a sports
betting operation the "right or authority to act."
The interpretation adopted by the Third Circuit and advocated
by respondents and the United States not only ignores the
situation that Congress faced when it enacted PASPA but also
leads to results that Congress is most unlikely to have
wanted. Pp. 11-13.
(c) Respondents and the United States cannot invoke the canon
of interpretation that a statute should not be held to be
unconstitutional if there is any reasonable interpretation
that can save it. Even if the law could be interpreted as
respondents and the United States suggest, it would still
violate the anticommandeering principle. Pp. 13-14.
2. PASPAs provision prohibiting state authorization of sports
gambling schemes violates the anticommandeering rule. Pp.
(a) As the Tenth Amendment confirms, all legislative power
not conferred on Congress by the Constitution is reserved for
the States. Absent from the list of conferred powers is the
power to issue direct orders to the governments of the
States. The anticommandeering doctrine that emerged in
New York v. United States, 505 U.S. 144, and
Printz v. United States, 521 U.S. 898, simply
represents the recognition of this limitation. Thus,
"Congress may not simply 'commandeer the legislative
process of the States by directly compelling them to enact
and enforce a federal regulatory program.'" New
York, supra, at 161. Adherence to the anticommandeering
principle is important for several reasons, including, as
significant here, that the rule serves as "one of the
Constitution's structural safeguards of liberty, "
Printz, supra, at 921, that the rule promotes
political accountability, and that the rule prevents Congress
from shifting the costs of regulation to the States. Pp.
(b) PASPAs anti-authorization provision unequivocally
dictates what a state legislature may and may not do. The
distinction between compelling a State to enact legislation
and prohibiting a State from enacting new laws is an empty
one. The basic principle-that Congress cannot issue direct
orders to state legislatures-applies in either event. Pp.
(c) Contrary to the claim of respondents and the United
States, this Court's precedents do not show that PASPAs
anti-authorization provision is constitutional. South
Carolina v. Baker, 485 U.S. 505; Reno v.
Condon, 528 U.S. 141; Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264;
FERC v. Mississippi, 456 U.S. 742, distinguished.
(d) Nor does the anti-authorization provision constitute a
valid preemption provision. To preempt state law, it must
satisfy two requirements. It must represent the exercise of a
power conferred on Congress by the Constitution. And, since
the Constitution "confers upon Congress the power to
regulate individuals, not States, " New York,
supra, at 177, it must be best read as one that
regulates private actors. There is no way that the PASPA
anti-authorization provision can be understood as a
regulation of private actors. It does not confer any federal
rights on private actors interested in conducting sports
gambling operations or impose any federal restrictions on
private actors. Pp. 21-24.
3. PASPAs provision prohibiting state "licens[ing]"
of sports gambling schemes also violates the
anticommandeering rule. It issues a direct order to the state
legislature and suffers from the same defect as the
prohibition of state authorization. Thus, this Court need not
decide whether New Jersey's 2014 law violates PASPAs
anti-licensing provision. Pp. 24-25.
4. No provision of PASPA is severable from the provisions
directly at issue. Pp. 26-30.
(a) Section 3702(1)'s provisions prohibiting States from
"operating], " "sponsor[ing], " or
"promot[ing]" sports gambling schemes cannot be
severed. Striking the state authorization and licensing
provisions while leaving the state operation provision
standing would result in a scheme sharply different from what
Congress contemplated when PASPA was enacted. For example,
had Congress known that States would be free to authorize
sports gambling in privately owned casinos, it is unlikely
that it would have wanted to prevent States from operating
sports lotteries. Nor is it likely that Congress would have
wanted to prohibit such an ill-defined category of state
conduct as sponsorship or promotion. Pp. 26-27.
(b) Congress would not want to sever the PASPA provisions
that prohibit a private actor from "sponsor[ing], "
"operat[ing], " or "promot[ing]" sports
gambling schemes "pursuant to" state law.
§3702(2). PASPAs enforcement scheme makes clear that
§3702(1) and §3702(2) were meant to operate
together. That scheme-suited for challenging state
authorization or licensing or a small number of private
operations-would break down if a State broadly decriminalized
sports gambling. Pp. 27-29.
(c) PASPAs provisions prohibiting the
"advertising]" of sports gambling are also not
severable. See §§3702(1)-(2). If they were allowed
to stand, federal law would forbid the advertising of an
activity that is legal under both federal and state
law-something that Congress has rarely done. Pp. 29-30.
832 F.3d 389, reversed.
J., delivered the opinion of the Court, in which ROBERTS, C.
J., and Kennedy, Thomas, Kagan, and Gorsuch, JJ., joined, and
in which BREYER, J., joined as to all but Part VI-B. THOMAS,
J., filed a concurring opinion. BREYER, J., filed an opinion
concurring in part and dissenting in part. GINSBURG, J.,
filed a dissenting opinion, in which So-TOMAYOR, J., joined,
and in which BREYER, J., joined in part.
State of New Jersey wants to legalize sports gambling at
casinos and horseracing tracks, but a federal law, the
Professional and Amateur Sports Protection Act, generally
makes it unlawful for a State to "authorize" sports
gambling schemes. 28 U.S.C. §3702(1). We must decide
whether this provision is compatible with the system of
"dual sovereignty" embodied in the Constitution.
have never been of one mind about gambling, and attitudes
have swung back and forth. By the end of the 19th century,
gambling was largely banned throughout the country,
beginning in the 1920s and 1930s, laws prohibiting gambling
were gradually loosened.
Jersey's experience is illustrative. In 1897, New Jersey
adopted a constitutional amendment that barred all gambling
in the State. But during the Depression, the State
permitted parimutuel betting on horse races as a way of
increasing state revenue,  and in 1953, churches and other
nonprofit organizations were allowed to host bingo
games. In 1970, New Jersey became the third State
to run a state lottery,  and within five years, 10 other States
1960s, Atlantic City, "once the most fashionable resort
of the Atlantic Coast, " had fallen on hard times,
casino gambling came to be seen as a way to revitalize the
city. In 1974, a referendum on statewide
legalization failed,  but two years later, voters approved a
narrower measure allowing casino gambling in Atlantic City
alone.At that time, Nevada was the only other
State with legal casinos,  and thus for a while the
Atlantic City casinos had an east coast monopoly. "With
60 million people living within a one-tank car trip away,
" Atlantic City became "the most popular tourist
destination in the United States." But that
favorable situation eventually came to an end.
the enactment of the Indian Gaming Regulatory Act in 1988, 25
U.S.C. §2701 et seq., casinos opened on Indian
land throughout the country. Some were located within driving
distance of Atlantic City,  and nearby States (and many
others) legalized casino gambling. But Nevada remained the
only state venue for legal sports gambling in casinos, and
sports gambling is immensely popular.
gambling, however, has long had strong opposition. Opponents
argue that it is particularly addictive and especially
attractive to young people with a strong interest in sports,
and in the past gamblers corrupted and seriously damaged the
reputation of professional and amateur sports. Apprehensive
about the potential effects of sports gambling, professional
sports leagues and the National Collegiate Athletic
Association (NCAA) long opposed legalization.
1990s, there were signs that the trend that had brought about
the legalization of many other forms of gambling might extend
to sports gambling,  and this sparked federal efforts to stem
the tide. Opponents of sports gambling turned to the
legislation now before us, the Professional and Amateur
Sports Protection Act (PASPA). 28 U.S.C. §3701 et
seq. PASPAs proponents argued that it would protect
young people, and one of the bill's sponsors, Senator
Bill Bradley of New Jersey, a former college and professional
basketball star, stressed that the law was needed to
safeguard the integrity of sports. The Department of Justice
opposed the bill,  but it was passed and signed into law.
most important provision, part of which is directly at issue
in these cases, makes it "unlawful" for a State or
any of its subdivisions "to sponsor, operate, advertise,
promote, license, or authorize by law or compact ... a
lottery, sweepstakes, or other betting, gambling, or wagering
scheme based . . . on" competitive sporting events.
§3702(1). In parallel, §3702(2) makes it
"unlawful" for "a person to sponsor, operate,
advertise, or promote" those same gambling
schemes-but only if this is done "pursuant
to the law or compact of a governmental entity." PASPA
does not make sports gambling a federal crime (and thus was
not anticipated to impose a significant law enforcement
burden on the Federal Government). Instead, PASPA allows the
Attorney General, as well as professional and amateur sports
organizations, to bring civil actions to enjoin violations.
time of PASPAs adoption, a few jurisdictions allowed some
form of sports gambling. In Nevada, sports gambling was legal
in casinos,  and three States hosted sports lotteries
or allowed sports pools. PASPA contains
"grandfather" provisions allowing these activities
to continue. §3704(a)(1)-(2). Another provision gave New
Jersey the option of legalizing sports gambling in Atlantic
City-provided that it did so within one year of the law's
effective date. §3704(a)(3).
Jersey did not take advantage of this special option, but by
2011, with Atlantic City facing stiff competition, the State
had a change of heart. New Jersey voters approved an
amendment to the State Constitution making it lawful for the
legislature to authorize sports gambling, Art. IV, §7,
¶2(D), (F), and in 2012 the legislature enacted a law
doing just that, 2011 N. J. Laws p. 1723 (2012 Act).
2012 Act quickly came under attack. The major professional
sports leagues and the NCAA brought an action in federal
court against the New Jersey Governor and other state
officials (hereinafter New Jersey), seeking to enjoin the new
law on the ground that it violated PASPA. In response, the
State argued, among other things, that PASPA
unconstitutionally infringed the State's sovereign
authority to end its sports gambling ban. See National
Collegiate Athletic Assn. v. Christie, 926 F.Supp.2d
551, 561 (NJ 2013).
making this argument, the State relied primarily on two
cases, New York v. United States, 505 U.S. 144
(1992), and Printz v. United States, 521 U.S. 898
(1997), in which we struck down federal laws based on what
has been dubbed the "anticommandeering" principle.
In New York, we held that a federal law
unconstitutionally ordered the State to regulate in
accordance with federal standards, and in Printz, we
found that another federal statute unconstitutionally
compelled state officers to enforce federal law.
on these cases, New Jersey argued that PASPA is similarly
flawed because it regulates a State's exercise of its
lawmaking power by prohibiting it from modifying or repealing
its laws prohibiting sports gambling. See National
Collegiate Athletic Assn. v. Christie, 926 F.Supp. 2d,
at 561-562. The plaintiffs countered that PASPA is critically
different from the commandeering cases because it does not
command the States to take any affirmative act. Id.,
at 562. Without an affirmative federal command to do
something, the plaintiffs insisted, there can be no claim of
District Court found no anticommandeering violation,
id., at 569-573, and a divided panel of the Third
Circuit affirmed, National Collegiate Athletic Assn. v.
Christie, 730 F.3d 208 (2013) (Christie I). The
panel thought it significant that PASPA does not impose any
affirmative command. Id., at 231. In the words of
the panel, "PASPA does not require or coerce the states
to lift a finger." Ibid, (emphasis deleted).
The panel recognized that an affirmative command (for
example, "Do not repeal") can often be phrased as a
prohibition ("Repeal is prohibited"), but the panel
did not interpret PASPA as prohibiting the repeal of laws
outlawing sports gambling. Id., at 232. A repeal, it
thought, would not amount to "authorization]" and
thus would fall outside the scope of §3702(1).
"[T]he lack of an affirmative prohibition of an
activity, " the panel wrote, "does not mean it is
affirmatively authorized by law. The right to do that which
is not prohibited derives not from the authority of the state
but from the inherent rights of the people."
Id., at 232 (emphasis deleted).
Jersey filed a petition for a writ of certiorari, raising the
anticommandeering issue. Opposing certiorari, the United
States told this Court that PASPA does not require New Jersey
"to leave in place the state-law prohibitions against
sports gambling that it had chosen to adopt prior to PASPAs
enactment. To the contrary, New Jersey is free to repeal
those prohibitions in whole or in part." Brief for
United States in Opposition in Christie v. National
Collegiate Athletic Assn., O. T. 2013, No. 13-967 etc.,
p. 11. See also Brief for Respondents in Opposition in No.
13-967 etc., p. 23 ("Nothing in that unambiguous
language compels states to prohibit or maintain any existing
prohibition on sports gambling"). We denied review.
Christie v. National Collegiate Athletic Assn., 573
up on the suggestion that a partial repeal would be allowed,
the New Jersey Legislature enacted the law now before us.
2014 N. J. Laws p. 602 (2014 Act). The 2014 Act declares that
it is not to be interpreted as causing the State to
authorize, license, sponsor, operate, advertise, or promote
sports gambling. Ibid. Instead, it is framed as a
repealer. Specifically, it repeals the provisions of state
law prohibiting sports gambling insofar as they concerned the
"placement and acceptance of wagers" on sporting
events by persons 21 years of age or older at a horseracing
track or a casino or gambling house in Atlantic City.
Ibid. The new law also specified that the repeal was
effective only as to wagers on sporting events not involving
a New Jersey college team or a collegiate event taking place
in the State. Ibid.
the same plaintiffs promptly commenced a new action in
federal court. They won in the District Court, National
Collegiate Athletic Assn. v. Christie, 61 F.Supp.3d 488
(NJ 2014), and the case was eventually heard by the Third
Circuit sitting en banc. The en banc court affirmed, finding
that the new law, no less than the old one, violated PASPA by
"authorizing]" sports gambling. National
Collegiate Athletic Assn. v. Governor of N J., 832 F.3d
389 (2016) (case below). The court was unmoved by the New
Jersey Legislature's "artful" attempt to
frame the 2014 Act as a repealer. Id., at 397.
Looking at what the law "actually does, " the court
concluded that it constitutes an authorization because it
"selectively remove[s] a prohibition on sports wagering
in a manner that permissively channels wagering activity to
particular locations or operators." Id., at
397, 401. The court disavowed some of the reasoning in the
Christie I opinion, finding its discussion of
"the relationship between a 'repeal' and an
'authorization' to have been too facile." 832
F.3d, at 401. But the court declined to say whether a repeal
that was more complete than the 2014 Act would still amount
to an authorization. The court observed that a partial repeal
that allowed only "de minimis wagers between
friends and family would not have nearly the type of
authorizing effect" that it found in the 2014 Act, and
it added: "We need not. . . articulate a line whereby a
partial repeal of a sports wagering ban amounts to an
authorization under PASPA, if indeed such a line could be
drawn." Id., at 402 (emphasis added).
found that the 2014 Act violates PASPA's prohibition of
state authorization of sports gambling schemes, the court
went on to hold that this prohibition does not contravene the
anticommandeering principle because it "does not command
states to take affirmative actions." Id., at
granted review to decide the important constitutional
question presented by these cases, sub nom. Christie v.
National Collegiate Athletic Assn., 582 U.S.__(2017).
considering the constitutionality of the PASPA provision
prohibiting States from "authorizing]" sports
gambling, we first examine its meaning. The parties advance
dueling interpretations, and this dispute has an important
bearing on the constitutional issue that we must decide.
Neither respondents nor the United States, appearing as an
amicus in support of respondents, contends that the
provision at issue would be constitutional if
petitioners' interpretation is correct. Indeed, the
United States expressly concedes that the provision is
unconstitutional if it means what petitioners claim. Brief
for United States 8, 19.
argue that the anti-authorization provision requires States
to maintain their existing laws against sports gambling
without alteration. One of the accepted meanings of the term
"authorize, " they point out, is
"permit." Brief for Petitioners in No. 16-476, p.
42 (citing Black's Law Dictionary 133 (6th ed. 1990);
Webster's Third New International Dictionary 146 (1992)).
They therefore contend that any state law that has the effect
of permitting sports gambling, including a law totally or
partially repealing a prior prohibition, amounts to an
authorization. Brief for Petitioners in No. 16-476, at 42.
interpret the provision more narrowly. They claim that the
primary definition of "authorize" requires
affirmative action. Brief for Respondents 39. To authorize,
they maintain, means "'[t]o empower; to give a right
or authority to act; to endow with authority.'"
Ibid. (quoting Black's Law Dictionary, at 133).
And this, they say, is precisely what the 2014 Act does: It
empowers a defined group of entities, and it endows them with
the authority to conduct sports gambling operations.
do not take the position that PASPA bans all modifications of
old laws against sports gambling, Brief for Respondents 20,
but just how far they think a modification could go is not
clear. They write that a State "can also repeal or
enhance [laws prohibiting sports gambling] without running
afoul of PASPA" but that it "cannot 'partially
repeal' a general prohibition for only one or two
preferred providers, or only as to sports-gambling schemes
conducted by the state." Ibid. Later in their
brief, they elaborate on this point:
"If, for example, a state had an existing felony
prohibition on all lotteries, it could maintain the law, it
could repeal the law, it could downgrade the crime to a
misdemeanor or increase the penalty .... But if the state
modified its law, whether through a new authorization or
through an amendment partially repealing the existing
prohibition, to authorize the state to conduct a sports
lottery, that modified law would be preempted." Id.,
United States makes a similar argument. PASPA, it contends,
does not prohibit a State from enacting a complete repeal
because "one would not ordinarily say that private
conduct is 'authorized by law' simply because the
government has not prohibited it." Brief for United
States 17. But the United States claims that "[t]he 2014
Act's selective and conditional permission to engage in
conduct that is generally prohibited certainly
qualifies" as an authorization. Ibid. The
United States does not argue that PASPA outlaws all
partial repeals, but it does not set out any clear rule for
distinguishing between partial repeals that constitute the
"authorization" of sports gambling and those that
are permissible. The most that it is willing to say is that a
State could "eliminat[e] prohibitions on sports gambling
involving wagers by adults or wagers below a certain dollar
threshold." Id., at 29.
view, petitioners' interpretation is correct: When a
State completely or partially repeals old laws banning sports
gambling, it "authorize [s]" that activity. This is
clear when the state-law landscape at the time of PASPA's
enactment is taken into account. At that time, all forms of
sports gambling were illegal in the great majority of States,
and in that context, the competing definitions offered by the
parties lead to the same conclusion. The repeal of a state
law banning sports gambling not only "permits"
sports gambling (petitioners' favored definition); it
also gives those now free to conduct a sports betting
operation the "right or authority to act"; it
"empowers" them (respondents' and the United
concept of state "authorization" makes sense only
against a backdrop of prohibition or regulation. A State is
not regarded as authorizing everything that it does not
prohibit or regulate. No one would use the term in that way.
For example, no one would say that a State
"authorizes" its residents to brush their teeth or
eat apples or sing in the shower. We commonly speak of state
authorization only if the activity in question would
otherwise be restricted.
United States counters that, even if the term
"authorize, " standing alone, is interpreted as
petitioners claim, PASPA contains additional language that
precludes that reading. The provision at issue refers to
"authorization] by law, " §3702(1)
(emphasis added), and the parallel provision governing
private conduct, §3702(2), applies to conduct done
"pursuant to the law ... of a governmental entity."
The United States maintains that one "would not
naturally describe a person conducting a sports-gambling
operation that is merely left unregulated as acting
'pursuant to' state law." Brief for United
States 18. But one might well say exactly that if the person
previously was prohibited from engaging in the activity.
("Now that the State has legalized the sale of
marijuana, Joe is able to sell the drug pursuant to state
United States also claims to find support for its
interpretation in the fact that the authorization ban applies
to all "governmental entities." It is implausible,
the United States submits, to think that Congress
"commanded every county, district, and municipality in
the Nation to prohibit sports betting." Ibid.
But in making this argument, the United States again ignores
the legal landscape at the time of PASPA's enactment. At
that time, sports gambling was generally prohibited by state
law, and therefore a State's political subdivisions were
powerless to legalize the activity. But what if a State
enacted a law enabling, but not requiring, one or more of its
subdivisions to ...