On the eve of when lawyers are expected in U.S. District Court to argue that a federal ban on sports betting is unconstitutional, two congressmen said they will introduce bills to allow New Jersey to authorize sports gambling even if the state were to lose the lawsuit.
U.S. Rep. Frank LoBiondo, R-N.J., and U.S. Rep. Frank Pallone, D-N.J., said on Wednesday that they will re-introduce two bills. Pallone’s proposal would exempt New Jersey from the federal ban and LoBiondo’s would allow states, including New Jersey, to enact laws legalizing sports gambling until Jan. 1, 2017.
“New Jersey has been clear about its intent to host sports betting,” LoBiondo said in a statement. “Legalizing sports betting would strengthen Atlantic City in the face of stiff competition, giving it an additional edge to attract visitors and critical tourism dollars.”
LoBiondo said there is much risk the legislation won’t proceed past introduction because there is a lack of support for the measure among some lawmakers, as well as sports organizations, but he wanted to get the discussion started.
“We want to keep moving this forward,” he said. “We have not really had a chance to make our side of the argument as formally as I would have liked to.”
The Professional and Amateur Sports Protection Act enacted in 1992 prohibits states from authorizing sports gambling except in four jurisdictions that already had legalized the activity. Disregarding PASPA, New Jersey proceeded to enact state laws authorizing the Division of Gaming Enforcement to license sports betting operations in casinos and racetracks.
The NBA, NCAA, NFL, NHL and MLB, which opposes sports betting because officials believe it will bring the integrity of the games into question and potentially lead to loss of fan dollars, subsequently sued New Jersey.
Lawyers representing the state are to appear in front of U.S. District Court Judge Michael Shipp in Trenton today to make their constitutional arguments.
New Jersey is arguing that the federal government is “commandeering” states rights by forbidding states to authorize sports betting. But the Department of Justice, which filed a brief on the matter, said PASPA does not require the state to take on any additional responsibilities, and as a result does not commandeer states rights.
“PASPA imposes no affirmative duty on states to take any action,” DOJ lawyers argued in their brief. “New Jersey has complied with PASPA for over (20) years, during much of which New Jersey took no action regarding its sports gambling laws.”
The anti-commandeering principle has been used successfully by states in some cases, most notably in connection with the Affordable Care Act. States successfully argued that a provision in the federal law requiring states to run health exchanges was a violation of the anti-commandeering principle because states cannot be forced to carry out federal mandates, observers said.
“The government cannot force states to set up these exchanges — that was all because of anti-commandeering,” said James Blumstein, a law professor at Vanderbilt Law School who has written about the anti-commandeering principle.
Other legal analysts said New Jersey is seeking a broad interpretation of the anti-commandeering principle.
“As a practical matter, it seems a major expansion of the commandeering doctrine,” said Bernard Bell, a constitutional law professor at Rutgers University.
The state’s arguments that by prohibiting New Jersey from enacting sports betting laws, PASPA was in fact requiring the state to regulate the activity “don’t seem to ring true,” Bell said.
“New Jersey’s argument that prohibiting it from authorizing gambling is requiring it to engage in affirmative regulation seems exaggerated to me,” he said. “There are surely plenty of laws that New Jersey makes no effort to enforce, and nothing in PASPA in any way requires the state to enforce the prohibition on sports betting.”
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