On December 4, 2017, the Supreme Court of the United States will be in session to hear oral argument on two consolidated cases on appeal from the Third Circuit, and will ultimately be responsible for deciding the constitutionality of a federal statute prohibiting states from authorizing sports betting. The two consolidated cases that will be before the highest court are National Collegiate Athletic Association (NCAA) v. Governor of State of New Jersey, et al. and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA, et al., both of which involve New Jersey’s repeal of its ban on sports wagering.
In the consolidated action before the Third Circuit, the State of New Jersey essentially argued that the applicable federal law impermissibly seized the regulatory power of the states, in violation of the 10th Amendment to the United States Constitution. In August 2016, the 3rd Circuit Court of Appeals rejected that argument and upheld the federal law in question, the Professional and Amateur Sports Protection Act. Specifically, the Third Circuit held that “[s]tates may not use clever drafting or mandatory construction provisions to escape the supremacy of the federal law.” The petition for certiorari to the Supreme Court was filed shortly after the Third Circuit’s decision.
The petition for certiorari contends that the Professional and Amateur Sports Protection Act is essentially tantamount to a “federal takeover of New Jersey’s legislative apparatus” and emphasized that “[n]ever before has congressional power been construed to allow the federal government to dictate whether or to what extent a state may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct.” The cert petition also asserts that the underlying case potentially could have consequences regarding the power of the states to authorize private conduct currently banned by state law, including, but not limited to, carrying concealed firearms and the recreational use of marijuana.
This is certainly a case that should be closely monitored, as the Supreme Court’s ultimate decision will likely have far-reaching implications that could impact individuals and businesses not only in New Jersey, but throughout the country.