Acting US Solicitor General Advises Scotus to Decline NJ Sports Betting Appeal

As most industry and legal experts expected, Acting United States Solicitor General Jeffrey Wall has formally recommended to the Supreme Court of the US that it not accept the appeal made on behalf of the state of New Jersey and the New Jersey Thoroughbred Horsemen's Association in the sports-betting legalization case commonly known as “Christie II”.

Wall's recommendation significantly decreases the likelihood that the Supreme Court, or SCOTUS, will accept the writ of certiorari (the formal term for the appeal) offered by the state. Such a refusal by the nine-judge SCOTUS would leave in effect an en banc ruling by the US Third Circuit Court of Appeals. That en banc ruling reaffirmed both an earlier Third Circuit ruling and the initial case ruling, which enforced an injunction against New Jersey's ongoing legislative efforts to activate legalized sports betting in the state.

As we've previously reported, New Jersey voters approved legalized sports wagering way back in 2011. However, the will of the state's voters has been legally stymied to date by five major American sports organizations. The suits filed by the National Football League (NFL), Major League Baseball (MLB), the National Hockey League (NHL), the National Basketball Association (NBA), and the National Collegiate Athletic Association (NCAA) have blocked both Christie II and its predecessor bill, now known as Christie I.

In both cases, the sports associations have successfully argued that the New Jersey measures have violated the preexisting, federal-level PASPA (Professional and Amateur Sports Protection Act), which since 1992 has blocked New Jersey and all other US states, excepting grandfathered Nevada, from legalizing single-event spots wagering. And the feds, as personified by US Department of Justice attorneys, have backed the leagues efforts to keep PASPA in place.

Should SCOTUS decline the Christie II write, PASPA stays in force, and New Jersey would have to try yet again, or seek to move federal-level legislation modifying or nullifying the measure.

Acting US Attorney General Wall's letter of recommendation carries a most-succinct conclusion. “The petitions for writs of certiorari should be denied,” Wall wrote. The meat of that recommendation comes earlier in the 30-page opinion, in which Wall repeatedly dismisses the heart of New Jersey's claim, that PASPA continues to be an unconstitutional violation of the Tenth Amendment, which grants to individual states the right to govern many forms of social behavior, including gambling.

Wrote Wall, in part:

“Under the Tenth Amendment, 'the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.' … As this Court explained [], that anti-commandeering principle precludes Congress from affirmatively requiring States to enact or administer federally prescribed regulatory requirements: We held in [New York, an earlier case on another topic] that Congress cannot compel the States to enact or enforce a federal regulatory program... .

“Congress may, however, prohibit States from enacting laws that conflict with federal policy. “A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity.” ...

“The constitutionality of such legislation follows directly from the Supremacy Clause, which makes federal laws enacted pursuant to the Constitution 'the supreme Law of the Land' and requires inconsistent State laws to give way. Countless federal statutes thus expressly prohibit States from enacting laws with specified features or bar all state regulation in particular fields. 'Although such congressional enactments obviously curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result.'”

If federal laws are indeed allowed to usurp “inconsistent state laws,” via the Supremacy Clause, then states' rights and the Tenth Amendment in general are perpetually in peril of being gutted at federal whim. Wall's opinion contains other inconsistencies that may form the basis for the reply filing that New Jersey's attorneys are allowed to make before the final SCOTUS review.

SCOTUS is expected to make that final decision in June, during its next round of actions on cases submitted to it for possible acceptance.