Editor's note: We got this one right, down to hedging on whether Justice Breyer would side with New Jersey. In the end, he dissented "in part."
May 9, 2018: Here at AttentionFWD, we began our research on sports betting four years ago, and in early 2016, we made the prediction that sports betting had a small but meaningful chance to become legal in the US.
In the Future of Sports 2.0, we covered the future intersection of fantasy sports and sportsbook betting. We felt New Jersey’s efforts were going to intersect with the rise of federal-state conflict, due to the increasing partisanship of our country, and create a legal landscape that could result in sports betting being decriminalized, and even legalized, state by state.
Every year, the U.S. Supreme Court is besieged with some 7,000 appeals. Only about a hundred of them are chosen by the Court to be heard with oral arguments. Those are some long odds … 1.4% is what it calculates out to. But then, on June 27th, 2017, New Jersey’s case was picked. Not because any justices were particularly interested in sports betting, but because of their interest in better defining the line between states’ rights and federal powers.
Despite the long odds that New Jersey has faced to this point, we believe the odds of a favorable ruling from the Supreme Court justices, and being able to legally offer sports betting, are now dramatically in New Jersey’s favor. In the spring of 2018, late during the Supreme Court’s term, we predict the Professional and Amateur Sports Protection Act of 1992 will be ruled unconstitutional.
Likelihood Supreme Court will side with New Jersey
Supreme Court’s interest in legalizing sports betting
Supreme Court’s interest in federal vs state powers
- 7 – 2
Likely Supreme Court vote
Senator Bill Bradley, the New York Knicks legend, sponsored the PASPA legislation in 1992 to protect sports integrity. The law didn’t make sports betting a crime, and it left betting alone in states that already had it. Bradley just wanted to stop sports betting from expanding. To accomplish this, Congress invoked its right to regulate interstate commerce, and forbade state governments from further authorizing sportsbooks.
Even before it was passed, the Department of Justice warned of serious concerns about the law’s constitutionality. State revenue was traditionally the concern of the states. The federal government can’t tell state governments what to do in areas not named by the Constitution. And it was one thing for the US Attorney General to represent the federal government, as written in PASPA, but very problematic to write into the law that the NCAA and professional sports leagues had standing as well, as if they were government agencies.
The Supreme Court justices’ opinions on this case could have sweeping ramifications along the fault line of states versus federal powers:
- Sanctuary city laws protecting illegal immigrants
- Marijuana decriminalization and legalization
- State gun permitting restrictions and concealed carry laws
The fate of all of the above are going to be influenced by this case. The justices care more about those issues than they care about sports betting, and they don’t want this case to set the wrong precedent for the other tensions.
- Supremacy Clause – Federal law takes precedence over state law
- 10th Amendment – Powers not spelled out in constitution are reserved for the states
- Commerce Act – is sport betting commercial activity, or is it criminal activity?
- Wire Act of 1961 – JFK’s ban on making sports bets over the phone was an attempt to weaken organized crime.
- Brady Act – Ruled unconstitutional in 1997 in the case Printz v. United States, The Brady Act mandated that state law enforcement officers conduct background checks on gun purchasers until the national background check system could be created. Critically, the whole statute was not voided, as the NRA had argued. Just the provision that compelled local law enforcement was struck – the rest of the law was upheld.
- 2006 Unlawful Internet Gambling Enforcement Act – prohibiting using the internet wherever gambling was forbidden by state or federal law. However, the law also carved out the exception for games of skill (versus games of chance). That exception gave rise to Daily Fantasy and its many iterations.
Judge by Judge Predictions: