The U.S. Justice Department will join the NCAA and four professional sports leagues in fending off New Jersey’s constitutional challenge of a federal law limiting sports betting to a handful of jurisdictions.
Justice lawyers notified the U.S. District Court of their intention Tuesday, seeking to join the leagues in a lawsuit filed to block New Jersey from authorizing sports wagering.
The addition of the Justice Department to the case was not surprising, given that New Jersey is defending itself by attacking the constitutionality of the federal law, a legal scholar said.
“It would be very unusual for the Department of Justice to decide not to defend the constitutionality of a statute,” said Bernard Bell, a law professor at Rutgers University. “I think it might help the leagues marginally.”
At the same time, the Department of Justice will be able to weigh in on the intent of the law with its own opinions that are not necessarily the same as the leagues’, Bell said.
“DOJ has an independent interest and will not necessarily take positions in all circumstances that (the NCAA and leagues like) or would prefer that DOJ take,” Bell said.
Last year, New Jersey enacted a law authorizing sports betting in violation of the federal Professional and Amateur Sports Protection Act, which prohibits sports betting except in states that already authorized the activity prior to the act’s enactment in 1992. Nevada is the only state that authorizes all forms of sports betting, while Delaware permits only NFL parlay betting.
In August, the NCAA, NFL, NHL, NBA and Major League Baseball filed a lawsuit against New Jersey, specifically citing violation of the Sports Protection Act. New Jersey argued the federal statute is unconstitutional because it “commandeers” states’ rights and violates due process and the equal protection clause in the U.S. Constitution.
Rather than prohibiting individuals from placing a sports bet, the act bars states from authorizing sports betting, which in effect requires states to enact laws prohibiting sports betting, according to documents New Jersey filed in the case.
The U.S. Supreme Court has ruled that federal laws cannot commandeer a state’s legislative process by mandating state regulation. There have only been a couple of cases where the “anti-commandeering” argument was successfully applied, Bell said, adding that New Jersey was using it as a defense.
“There’s not a whole lot of Supreme Court or lower-level cases that have declared statutes unconstitutional based on anti-commandeering,” he said. “There is a presumption of constitutionality, and that presumption is more often overcome on infringement of individual rights as opposed to federalism issues.”
For now, other than filing the notice, the Justice Department has not detailed what arguments it intends to use. Lawyers have asked to have until Feb. 1 to file a written brief on the matter.
Justice Department officials also asked for permission to make oral arguments during a Feb. 14 hearing U.S. District Judge Michael Shipp scheduled to hear the case.
The Justice Department had only through today to file the notice of its intention. Under federal court proceedings, a judge cannot rule a law unconstitutional unless the federal government is notified and given an opportunity to defend the law if it so chooses.
Also included as parties to the lawsuit in support of New Jersey are state Senate President Stephen Sweeney, D-Salem, Gloucester, Cumberland; Assembly Speaker Sheila Oliver, D-Essex, Passaic; and the New Jersey Thoroughbred Horsemen’s Association. The horsemen’s association filed a brief that said without the addition of sports betting, Monmouth Park, which it operates, would fold.
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