Last week, the Supreme Court heard testimony on a case that could reinvigorate the Tenth Amendment of the Constitution. Surprisingly, it’s all about football and sports betting in the State of New Jersey. The results of Governor of New Jersey v. National Collegiate Athletic Association may have consequences for a range of issues, including gun control, medical/recreational marijuana, and healthcare.

The issue concerns the 1992 Professional and Amateur Sports Protection Act (PASPA). PASPA, outlawed all online gambling, with some exceptions for states that already had sports betting programs in place. Waivers were provided to Delaware, Montana, and Oregon, as they already had well-established sports lotteries. Las Vegas also received an exemption for their licensed pools, including their sportsbooks and horse-racing. Additionally, PASPA included a one-year period for states like New Jersey, which already had existing casino gambling, to extend into the sports betting realm.

It took the New Jersey state legislature nearly two decades to finally pass the Sports Wagering Act of 2011. Although it took a referendum to prove the vast majority of New Jersey residents were interested in something more than just hitting the tables at their local casinos, nevertheless the regulation of sports betting became a reality within the state, but well after the PASPA time window.

It wasn’t long before the NCAA, and the four major professional sports leagues, received a permanent injunction against the New Jersey sports betting law. The Third Circuit of the U.S. Court of appeals held that the New Jersey sports wagering act violated PASPA. However, even though states cannot authorize sports betting under PASPA, the court recognized that nothing in the wording of PASPA “requires that the states keep any law in place.”

After the court’s remarks, New Jersey thought they had found a way around PASPA and passed a new law in 2014 that repealed virtually all state bans on sports betting in casinos and racetracks throughout the state. Not surprisingly, the NCAA ran back to the Third Circuit court. The court once again sided with the NCAA, ignoring its previous distinction between “authorization” and “repeal.”

The Third Circuit court’s decision seems to be at odds with the Tenth Amendment by requiring the state to uphold laws that its elected officials had acted to eliminate. The Tenth Amendment was written to guarantee that states retain all powers not delegated to the federal government. Three dissenting judges on the panel agreed.

As the Supreme Court held in another case in the same year as PASPA, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to [its] instructions.”  But at its core that is exactly what PASPA does. If the Supreme Court upholds PASPA, it would be the equivalent of saying New Jersey officials and their voters cannot participate in their own state’s gambling laws. In essence, any state-reform would “authorize” actions that violate federal law.

If the Supreme Court sides with the NCAA rather than the states, it would strike a devastating blow to the Tenth Amendment.  It would embolden those who are willing to trample on the Constitution achieve their legislative aims.

For years, Las Vegas billionaire Sheldon Adelson has lobbied Congress to overturn state gambling laws. Last month, Sen. Lindsey Graham (R-S.C.), an Adelson donor recipient, wrote a letter demanding the DOJ intercede and reverse state laws that allowing for Internet gambling.

The Supreme Court has a chance to take a stand for the Tenth Amendment by letting states decide what is best for its own people. That is exactly what the Founding Fathers envisioned when they crafted the Tenth Amendment, and their vision should remain a reality in 2017.

Peter Weyrich
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