PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.; NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.
Nos. 16-476 and 16-477
SUPREME COURT OF THE UNITED STATES
May 14, 2018
584 U. S. ____ (2018)
(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MURPHY, GOVERNOR OF NEW JERSEY, ET AL. v. NATIONAL COLLEGIATE ATHLETIC ASSN. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 16-476. Argued December 4, 2017—Decided May 14, 2018*
New Jersey did not take advantage of that option but has since had a change of heart. After voters approved an amendment to the State Constitution giving the legislature the authority to legalize sports gambling schemes in Atlantic City and at horseracing tracks, the legislature enacted a 2012 law doing just that. The NCAA and three major professional sports leagues brought an action in federal court against New Jersey‘s Governor and other state officials (hereinafter New Jersey), seeking to enjoin the law on the ground that it violates
*Together with No. 16–477, New Jersey Thoroughbred Horsemen‘s Assn., Inc. v. National Collegiate Athletic Assn. et al., also on certiorari to the same court.
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PASPA.
In 2014, the New Jersey Legislature enacted the law at issue in these cases. Instead of affirmatively authorizing sports gambling schemes, this law repeals state-law provisions that prohibited such schemes, insofar as they concerned wagering on sporting events by persons 21 years of age or older; at a horseracing track or a casino or gambling house in Atlantic City; and only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Plaintiffs in the earlier suit, respondents here, filed a new action in federal court. They won in the District Court, and the Third Circuit affirmed, holding that the 2014 law, no less than the 2012 one, violates PASPA. The court further held that the prohibition does not “commandeer” the States in violation of the Constitution.
Held:
1. When a State completely or partially repeals old laws banning sports gambling schemes, it “authorize[s]” those schemes under PASPA. Pp. 9–14.
(a) Pointing out that one accepted meaning of “authorize” is “permit,” petitioners contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to authorization. Respondents maintain that “authorize” requires affirmative action, and that the 2014 law affirmatively acts by empowering a defined group of entities and endowing them with the authority to conduct sports gambling operations. They do not take the position that PASPA bans all modifications of laws prohibiting sports gambling schemes, but just how far they think a modification could go is not clear. Similarly, the United States, as amicus, claims that the State’s 2014 law qualifies as an authorization. PASPA, it contends, neither prohibits a State from enacting a complete repeal nor outlaws all partial repeals. But the United States also does not set out any clear rule for distinguishing between partial repeals that constitute the “authorization” of sports gambling and those that are permissible. Pp. 10–11.
(b) Taking into account the fact that all forms of sports gambling were illegal in the great majority of States at the time of PASPA’s enactment, the repeal of a state law banning sports gambling not only “permits” sports gambling but also gives those now free to conduct a sports betting operation the “right or authority to act.” The interpretation adopted by the Third Circuit and advocated by respondents
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and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. Pp. 11–13.
(c) Respondents and the United States cannot invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. Even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle. Pp. 13–14.
2. PASPA’s provision prohibiting state authorization of sports gambling schemes violates the anticommandeering rule. Pp. 14–24.
(a) As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the
(b) PASPA’s anti-authorization provision unequivocally dictates what a state legislature may and may not do. The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event. Pp. 18–19.
(c) Contrary to the claim of respondents and the United States, this Court’s precedents do not show that PASPA’s anti-authorization provision is constitutional. South Carolina v. Baker, 485 U. S. 505; Reno v. Condon, 528 U. S. 141; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264; FERC v. Mississippi, 456 U. S. 742, distinguished. Pp. 19–21.
(d) Nor does the anti-authorization provision constitute a valid preemption provision. To preempt state law, it must satisfy two requirements. It must represent the exercise of a power conferred on Congress by the Constitution. And, since the Constitution “confers upon Congress the power to regulate individuals, not States,” New York, supra, at 177, it must be best read as one that regulates private
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actors. There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors. Pp. 21–24.
3. PASPA’s provision prohibiting state “licens[ing]” of sports gambling schemes also violates the anticommandeering rule. It issues a direct order to the state legislature and suffers from the same defect as the prohibition of state authorization. Thus, this Court need not decide whether New Jersey’s 2014 law violates PASPA’s anti-licensing provision. Pp. 24–25.
4. No provision of PASPA is severable from the provisions directly at issue. Pp. 26–30.
(a) Section 3702(1)’s provisions prohibiting States from “operat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes cannot be severed. Striking the state authorization and licensing provisions while leaving the state operation provision standing would result in a scheme sharply different from what Congress contemplated when PASPA was enacted. For example, had Congress known that States would be free to authorize sports gambling in privately owned casinos, it is unlikely that it would have wanted to prevent States from operating sports lotteries. Nor is it likely that Congress would have
(b) Congress would not want to sever the PASPA provisions that prohibit a private actor from “sponsor[ing],” “operat[ing],” or “promot[ing]” sports gambling schemes “pursuant to” state law.
(c) PASPA’s provisions prohibiting the “advertis[ing]” of sports gambling are also not severable. See
832 F. 3d 389, reversed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, KAGAN, and GORSUCH, JJ., joined, and in which BREYER, J., joined as to all but Part VI–B. THOMAS, J., filed a concurring opinion. BREYER, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER, J., joined in part.
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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 16–476 and 16–477
PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[May 14, 2018]
JUSTICE ALITO delivered the opinion of the Court.
The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to “authorize” sports gambling schemes.
I
A
Americans have never been of one mind about gambling,
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and attitudes have swung back and forth. By the end of the 19th
New Jersey’s experience is illustrative. In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State.2 But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue,3 and in 1953, churches and other nonprofit organizations were allowed to host bingo games.4 In 1970, New Jersey became the third State to run a state lottery,5 and within five years, 10 other States followed suit.6
By the 1960s, Atlantic City, “once the most fashionable resort of the Atlantic Coast,” had fallen on hard times,7 and casino gambling came to be seen as a way to revitalize the city.8 In 1974, a referendum on statewide legalization failed,9 but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone.10 At that time, Nevada was the only other State with legal
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casinos,11 and thus for a while the Atlantic City casinos had an east coast monopoly. “With 60 million people living within a one-tank car trip away,” Atlantic City became “the most popular tourist destination in the United States.”12 But that favorable situation eventually came to an end.
With the enactment of the Indian Gaming Regulatory Act in 1988,
Sports gambling, however, has long had strong opposition. Opponents argue that it is particularly addictive and especially attractive to young people with a strong interest in sports,16 and in the past gamblers
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sports gambling, professional sports leagues and the National Collegiate Athletic Association (NCAA) long opposed legalization.18
B
By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling,19 and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA).
PASPA’s most important provision, part of which is directly at issue in these cases, makes it “unlawful” for a State or any of its subdivisions22 “to sponsor, operate,
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advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events.
At the time of PASPA’s adoption, a few jurisdictions allowed some form of sports gambling. In Nevada, sports gambling was legal in casinos,25 and three States hosted sports lotteries or allowed sports pools.26 PASPA contains “grandfather” provisions allowing these activities to continue.
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effective date.
New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart. New Jersey voters approved an amendment to the State Constitution making it lawful for the legislature to authorize sports gambling,
The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. In response, the State argued, among other things, that PASPA unconstitutionally infringed the State’s sovereign authority to end its sports gambling ban. See National Collegiate Athletic Assn. v. Christie, 926 F. Supp. 2d 551, 561 (NJ 2013).
In making this argument, the State relied primarily on two cases, New York v. United States, 505 U. S. 144 (1992), and Printz v. United States, 521 U. S. 898 (1997), in which we struck down federal laws based on what has been dubbed the “anticommandeering” principle. In New York, we held that a federal law unconstitutionally ordered the State to regulate in accordance with federal standards, and in Printz, we found that another federal statute unconstitutionally compelled state officers to enforce federal law.
Relying on these cases, New Jersey argued that PASPA is similarly flawed because it regulates a State’s exercise
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of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling. See National Collegiate Athletic Assn. v. Christie, 926 F. Supp. 2d, at 561–562. The plaintiffs countered that PASPA is critically different from the commandeering cases because it does not command the States to take any affirmative act. Id., at 562. Without an affirmative federal command to do something, the plaintiffs insisted, there can be no claim of commandeering. Ibid.
The District Court found no anticommandeering violation, id., at 569–573, and a divided panel of the Third Circuit affirmed, National Collegiate Athletic Assn. v. Christie, 730 F. 3d 208 (2013) (Christie I). The panel thought it significant that PASPA does not impose any affirmative command. Id., at 231. In the words of the panel, “PASPA does not require or coerce the states to lift a finger.” Ibid. (emphasis deleted). The panel recognized
New Jersey filed a petition for a writ of certiorari, raising the anticommandeering issue. Opposing certiorari, the United States told this Court that PASPA does not require New Jersey “to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA’s enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in
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part.” Brief for United States in Opposition in Christie v. National Collegiate Athletic Assn., O. T. 2013, No. 13–967 etc., p. 11. See also Brief for Respondents in Opposition in No. 13–967 etc., p. 23 (“Nothing in that unambiguous language compels states to prohibit or maintain any existing prohibition on sports gambling”). We denied review. Christie v. National Collegiate Athletic Assn., 573 U. S. 931 (2014).
Picking up on the suggestion that a partial repeal would be allowed, the New Jersey Legislature enacted the law now before us. 2014 N. J. Laws p. 602 (2014 Act). The 2014 Act declares that it is not to be interpreted as causing the State to authorize, license, sponsor, operate, advertise, or promote sports gambling. Ibid. Instead, it is framed as a repealer. Specifically, it repeals the provisions of state law prohibiting sports gambling insofar as they concerned the “placement and acceptance of wagers” on sporting events by persons 21 years of age or older at a horseracing track or a casino or gambling house in Atlantic City. Ibid. The new law also specified that the repeal was effective only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Ibid.
Predictably, the same plaintiffs promptly commenced a new action in federal court. They won in the District Court, National Collegiate Athletic Assn. v. Christie, 61 F. Supp. 3d 488 (NJ 2014), and the case was eventually heard by the Third Circuit sitting en banc. The en banc court affirmed, finding that the new law, no less than the old one, violated PASPA by “author[izing]” sports gambling. National Collegiate Athletic Assn. v. Governor of N. J., 832 F. 3d 389 (2016) (case below). The court was unmoved by the New Jersey Legislature’s “artful[]” attempt to frame the 2014 Act as a repealer. Id., at 397. Looking at what the law “actually does,” the court concluded that it constitutes an authorization because it
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“selectively remove[s] a prohibition on sports wagering in a manner that permissively channels wagering activity to particular locations or operators.” Id., at 397, 401. The court disavowed some of the reasoning in the Christie I opinion, finding its discussion of “the relationship between a ‘repeal’ and an ‘authorization’ to have been too facile.” Id., at 401. But the court declined to say whether a repeal that was more complete than the 2014 Act would still amount to an authorization. The court observed that a partial repeal that allowed only “de minimis wagers between friends and family would not have nearly the type of authorizing effect” that it found in the 2014 Act, and it added: “We need not . . . articulate a line whereby a partial repeal of a sports
Having found that the 2014 Act violates PASPA’s prohibition of state authorization of sports gambling schemes, the court went on to hold that this prohibition does not contravene the anticommandeering principle because it “does not command states to take affirmative actions.” Id., at 401.
We granted review to decide the important constitutional question presented by these cases, sub nom. Christie v. National Collegiate Athletic Assn., 582 U. S. 966 (2017).
II
Before considering the constitutionality of the PASPA provision prohibiting States from “author[izing]” sports gambling, we first examine its meaning. The parties advance dueling interpretations, and this dispute has an important bearing on the constitutional issue that we must decide. Neither respondents nor the United States, appearing as an amicus in support of respondents, contends that the provision at issue would be constitutional if petitioners’ interpretation is correct. Indeed, the United
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States expressly concedes that the provision is unconstitutional if it means what petitioners claim. Brief for United States 8, 19.
A
Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration. One of the accepted meanings of the term “authorize,” they point out, is “permit.” Brief for Petitioners in No. 16–476, p. 42 (citing Black’s Law Dictionary 133 (6th ed. 1990); Webster’s Third New International Dictionary 146 (1992)). They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization. Brief for Petitioners in No. 16–476, at 42.
Respondents interpret the provision more narrowly. They claim that the primary definition of “authorize” requires affirmative action. Brief for Respondents 39. To authorize, they maintain, means “‘[t]o empower; to give a right or authority to act; to endow with authority.’” Ibid. (quoting Black’s Law Dictionary, at 133). And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations.
Respondents do not take the position that PASPA bans all modifications of old laws against sports gambling, Brief for Respondents 20, but just how far they think a modification could go is not clear. They write that a State “can also repeal or enhance [laws prohibiting sports gambling] without running afoul of PASPA” but that it “cannot ‘partially repeal’ a general prohibition for only one or two preferred providers, or only as to sports-gambling schemes conducted by the state.” Ibid. Later in their brief, they elaborate on this point:
“If, for example, a state had an existing felony prohi-
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bition on all lotteries, it could maintain the law, it could repeal the law, it could downgrade the crime to a misdemeanor or increase the penalty . . . . But if the state modified its law, whether through a new authorization or through an amendment partially repealing the existing prohibition, to authorize the state to conduct a sports lottery, that modified law would be preempted.” Id., at 31.
B
In our view, petitioners’ interpretation is correct: When a State completely or partially repeals old laws banning sports gambling, it “authorize[s]” that activity. This is clear when the state-law landscape at the time of PASPA’s enactment is taken into account. At that time, all forms of sports gambling were illegal in the great majority of States, and in that context, the competing definitions offered by the parties lead to the same conclusion. The repeal of a state law banning sports gambling not only “permits” sports gambling (petitioners’ favored definition);
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it also gives those now free to conduct a sports betting operation the “right or authority to act”; it “empowers” them (respondents’ and the United States’s definition).
The concept of state “authorization” makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State “authorizes” its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authorization only if the activity in question would otherwise be restricted.28
The United States counters that, even if the term “authorize,” standing alone, is interpreted as petitioners claim, PASPA contains additional language that precludes that reading. The provision at issue refers to “authoriz[ation] by law,”
The United States also claims to find support for its interpretation in the fact that the authorization ban ap-
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plies to all “governmental entities.” It is implausible, the United States submits, to think that Congress “commanded every county, district,
The interpretation adopted by the Third Circuit and advocated by respondents and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. This is illustrated by the implausible conclusions that all of those favoring alternative interpretations have been forced to reach about the extent to which the provision permits the repeal of laws banning sports gambling.
The Third Circuit could not say which, if any, partial repeals are allowed. 832 F. 3d, at 402. Respondents and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime.
C
The respondents and United States argue that even if there is some doubt about the correctness of their interpretation of the anti-authorization provision, that interpretation should be adopted in order to avoid any anticommandeering problem that would arise if the provision
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were construed to require States to maintain their laws prohibiting sports gambling. Brief for Respondents 38; Brief for United States 19. They invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. See Jennings v. Rodriguez, 583 U. S. 281, 293 (2018). The plausibility of the alternative interpretations is debatable, but even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle, as we now explain.
III
A
The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. When the original States declared their independence, they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority “to do all . . . Acts and Things which Independent States may of right do.” ¶32. The Constitution limited but did not abolish the sovereign powers of the States, which retained “a residuary and inviolable sovereignty.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of “dual sovereignty.” Gregory v. Ashcroft, 501 U. S. 452, 457 (1991).
The Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty. See, e.g.,
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(2008); American Ins. Assn. v. Garamendi, 539 U. S. 396 (2003). And the Constitution indirectly restricts the States by granting certain legislative powers to Congress, see
The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.
Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, 505 U. S. 144 (1992), which concerned a federal law that required a State, under certain circumstances, either to “take title” to low-level radioactive waste or to “regulat[e] according to the instructions of Congress.” Id., at 175. In enacting this provision, Congress issued orders to either the legislative or executive branch of state government (depending on the branch authorized by state law to take the actions demanded). Either way, the Court held, the provision was unconstitutional because “the Constitution does not empower Congress to subject state governments to this type of instruction.” Id., at 176.
Justice O’Connor’s opinion for the Court traced this rule
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to the basic structure of government established under the Constitution. The Constitution, she noted, “confers upon Congress the power to regulate individuals, not States.” Id., at 166. In this respect, the Constitution represented a sharp break from the Articles of Confederation. “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.” Id., at 163. Instead, Congress was limited to acting “‘only upon the States.’” Id., at 162 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)). Alexander Hamilton, among others, saw this as “‘[t]he great and radical vice in . . . the existing Confederation.’” 505 U. S., at 163 (quoting The Federalist No. 15, at 108). The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which “Congress would exercise its legislative authority directly over individuals rather than over States.” 505 U. S., at 165.
As to what this structure means with regard to Congress’s authority to control state legislatures, New York was clear and emphatic. The opinion recalled that “no Member of the Court ha[d] ever suggested” that even “a particularly strong federal interest” “would enable Congress to command a state government to enact state regulation.” Id., at 178 (emphasis in original). “We have
Opinion of the Court
Five years after New York, the Court applied the same principles to a federal statute requiring state and local law enforcement officers to perform background checks and related tasks in connection with applications for handgun licenses. Printz, 521 U. S. 898. Holding this provision unconstitutional, the Court put the point succinctly: “The Federal Government” may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Id., at 935. This rule applies, Printz held, not only to state officers with policymaking responsibility but also to those assigned more mundane tasks. Id., at 929-930.
B
Our opinions in New York and Printz explained why adherence to the anticommandeering principle is important. Without attempting a complete survey, we mention several reasons that are significant here.
First, the rule serves as “one of the Constitution‘s structural protections of liberty.” Printz, supra, at 921. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities.” New York, supra, at 181. “To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.” Ibid. “‘[A] healthy balance of power between the States and the Federal Government [reduces] the risk of tyranny and abuse from either front.‘” Id., at 181-182 (quoting Gregory, 501 U. S., at 458).
Second, the anticommandeering rule promotes political accountability. When Congress itself regulates, the responsibility for the benefits and burdens of the regulation is apparent. Voters who like or dislike the effects of the regulation know who to credit or blame. By contrast, if a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred. See New York, supra, at 168-169; Printz, supra, at 929-930.
Third, the anticommandeering principle prevents Congress from shifting the costs of regulation to the States. If Congress enacts a law and requires enforcement by the Executive Branch, it must appropriate the funds needed to administer the program. It is pressured to weigh the expected benefits of the program against its costs. But if Congress can compel the States to enact and enforce its program, Congress need not engage in any such analysis. See, e.g., E. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1360-1361 (2001).
A
The
Neither respondents nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter. See Brief for Respondents 19; Brief for United States 12. Noting that the laws challenged in New York and Printz “told states what they must do instead of what they must not do,” respondents contend that commandeering occurs “only when Congress goes beyond precluding state action and affirmatively commands it.” Brief for Respondents 19 (emphasis deleted). This distinction is empty. It was a matter of happenstance that the laws challenged in New York and Printz commanded “affirmative” action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.
Here is an illustration.
B
Respondents and the United States claim that prior decisions of this Court show that
In South Carolina v. Baker, 485 U. S. 505 (1988), the federal law simply altered the federal tax treatment of private investments. Specifically, it removed the federal tax exemption for interest earned on state and local bonds unless they were issued in registered rather than bearer form. This law did not order the States to enact or maintain any existing laws. Rather, it simply had the indirect effect of pressuring States to increase the rate paid on their bearer bonds in order to make them competitive with other bonds paying taxable interest.
In any event, even if we assume that removal of the tax exemption was tantamount to an outright prohibition of the issuance of bearer bonds, see id., at 511, the law would simply treat state bonds the same as private bonds. The anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.
That principle formed the basis for the Court‘s decision in Reno v. Condon, 528 U. S. 141 (2000), which concerned a federal law restricting the disclosure and dissemination of personal information provided in applications for driver‘s licenses. The law applied equally to state and private actors. It did not regulate the States’ sovereign authority to “regulate their own citizens.” Id., at 151.
In Hodel, 452 U. S., at 288, the federal law, which involved what has been called “cooperative federalism,” by no means commandeered the state legislative process. Congress enacted a statute that comprehensively regulated surface coal mining and offered States the choice of “either implement[ing]” the federal program “or else yield[ing] to a federally administered regulatory program.” Ibid. Thus, the federal law allowed but did not require the States to implement a federal program. “States [were] not compelled to enforce the [federal] standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever.” Id., at 288. If a State did not “wish” to bear the burden of regulation, the “full regulatory burden [would] be borne by the Federal Government.” Ibid.
Finally, in FERC v. Mississippi, 456 U. S. 742 (1982), the federal law in question issued no command to a state legislature. Enacted to restrain the consumption of oil and natural gas, the federal law directed state utility regulatory commissions to consider, but not necessarily to adopt, federal “rate design’ and regulatory standards.” Id., at 746. The Court held that this modest requirement did not infringe the States’ sovereign powers, but the Court warned that it had “never . . . sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” Id., at 761-762. FERC was decided well before our decisions in New York and Printz, and
In sum, none of the prior decisions on which respondents and the United States rely involved federal laws that commandeered the state legislative process. None concerned laws that directed the States either to enact or to refrain from enacting a regulation of the conduct of activities occurring within their borders. Therefore, none of these precedents supports the constitutionality of the
V
Respondents and the United States defend the anti-authorization prohibition on the ground that it constitutes a valid preemption provision, but it is no such thing. Preemption is based on the Supremacy Clause, and that Clause is not an independent grant of legislative power to Congress. Instead, it simply provides “a rule of decision.” Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 324 (2015). It specifies that federal law is supreme in case of a conflict with state law. Therefore, in order for the
This mechanism is shown most clearly in cases involving “conflict preemption.” A recent example is Mutual Pharmaceutical Co. v. Bartlett, 570 U. S. 472 (2013). In that case, a federal law enacted under the Commerce Clause regulated manufacturers of generic drugs, prohibiting them from altering either the composition or labeling approved by the Food and Drug Administration. A State‘s tort law, however, effectively required a manufacturer to supplement the warnings included in the FDA-approved label. Id., at 480-486. We held that the state law was preempted because it imposed a duty that was inconsistent—i.e., in conflict—with federal law. Id., at 493.
“Express preemption” operates in essentially the same way, but this is often obscured by the language used by Congress in framing preemption provisions. The provision at issue in Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992), is illustrative. The Airline Deregulation Act of 1978 lifted prior federal regulations of airlines, and “[t]o ensure that the States would not undo federal deregulation with regulation of their own,” id., at 378, the Act provided that “no State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any [covered] air carrier.”
This language might appear to operate directly on the States, but it is a mistake to be confused by the way in which a preemption provision is phrased. As we recently explained, “we do not require Congress to employ a particular linguistic formulation when preempting state law.” Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. 87, 98 (2017) . And if we look beyond the phrasing employed in the Airline Deregulation Act‘s preemption provision, it is clear that this provision operates just like any other federal law with preemptive effect. It confers on private entities (i.e., covered carriers) a federal right to engage in certain conduct subject only to certain (federal) constraints.
“Field preemption” operates in the same way. Field preemption occurs when federal law occupies a “field” of regulation “so comprehensively that it has left no room for supplementary state legislation.” R. J. Reynolds Tobacco Co. v. Durham County, 479 U. S. 130, 140 (1986). In describing field preemption, we have sometimes used the same sort of shorthand employed by Congress in express preemption provisions. See, e.g., Oneok, Inc. v. Learjet, Inc., 575 U. S. 373, 377 (2015) (“Congress has forbidden the State to take action in the field that the federal statute pre-empts“). But in substance, field preemption does not involve congressional commands to the States. Instead, like all other forms of preemption, it concerns a clash between a constitutional exercise of Congress‘s legislative power and conflicting state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372, n. 6 (2000).
The Court‘s decision in Arizona v. United States, 567 U. S. 387 (2012), shows how this works. Noting that federal statutes “provide a full set of standards governing alien registration,” we concluded that these laws “reflect[] a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” Id., at 401. What this means is that the federal registration provisions not only impose federal registration obligations on aliens but also confer a federal right to be free from any other registration requirements.
In sum, regardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.
Once this is understood, it is clear that the
In so holding, we recognize that a closely related provision of
VI
Having concluded that
A
Respondents and the United States argue that, even if we disagree with the Third Circuit‘s decision regarding the constitutionality of the anti-authorization provision, we should nevertheless affirm based on
We need not decide whether the 2014 Act violates
B
We therefore turn to the question whether, as petitioners maintain, our decision regarding
1
Under
That seems most unlikely. State-run lotteries, which sold tickets costing only a few dollars, were thought more benign than other forms of gambling, and that is why they had been adopted in many States. Casino gambling, on the other hand, was generally regarded as far more dangerous. A gambler at a casino can easily incur heavy losses, and the legalization of privately owned casinos was known to create the threat of infiltration by organized crime, as Nevada‘s early experience
Prohibiting the States from engaging in commercial activities that are permitted for private parties would also have been unusual, and it is unclear what might justify such disparate treatment. Respondents suggest that Congress wanted to prevent States from taking steps that the public might interpret as the endorsement of sports gambling, Brief for Respondents 39, but we have never held that the Constitution permits the Federal Government to prevent a state legislature from expressing its views on subjects of public importance. For these reasons, we do not think that the provision barring state operation of sports gambling can be severed.
We reach the same conclusion with respect to the provisions prohibiting state “sponsor[ship]” and “promot[ion].” The line between authorization, licensing, and operation, on the one hand, and sponsorship or promotion, on the other, is too uncertain. It is unlikely that Congress would have wanted to prohibit such an ill-defined category of state conduct.
2
Nor do we think that Congress would have wanted to sever the
The present cases illustrate exactly how Congress must have intended
Under
These provisions implement a coherent federal policy: They respect the policy choices of the people of each State on the controversial issue of gambling. By contrast, if
3
The remaining question that we must decide is whether the provisions of
It is true that at one time federal law prohibited the use of the mail or interstate commerce to distribute advertisements of lotteries that were permitted under state law, but that is no longer the case. See United States v. Edge Broadcasting Co., 509 U. S. 418, 421-423 (1993). In 1975, Congress passed a new statute, codified at
For these reasons, we hold that no provision of
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The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.
The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act
The judgment of the Third Circuit is reversed.
It is so ordered.
JUSTICE THOMAS, concurring.
I join the Court‘s opinion in its entirety. I write separately, however, to express my growing discomfort with our modern severability precedents.
I agree with the Court that the Professional and Amateur Sports Protection Act (PASPA) exceeds Congress’ Article I authority to the extent it prohibits New Jersey from “authoriz[ing]” or “licens[ing]” sports gambling,
Because
Those precedents appear to be in tension with traditional limits on judicial authority. Early American courts did not have a severability doctrine. See Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010) (Walsh). They recognized that the judicial power is, fundamentally, the power to render judgments in individual cases. See id., at 755; Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815 (2008). Judicial review was a by-product of that process. See generally P. Hamburger, Law and Judicial Duty (2008); Prakash & Yoo, The Origins of Judicial
Despite this historical practice, the Court‘s modern cases treat the severability doctrine as a “remedy” for constitutional violations and ask which provisions of the statute must be “excised.” See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006); Booker, supra, at 245; Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 686 (1987). This language cannot be taken literally. Invalidating a statute is not a “remedy,” like an injunction, a declaration, or damages. See Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 82-88 (2014) (Harrison). Remedies “operate with respect to specific parties,” not “on legal rules in the abstract.” Id., at 85; see also Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (explaining that the power “to review and annul acts of Congress” is “little more than the negative power to disregard an unconstitutional enactment” and that “the court enjoins . . . not the execution of the statute, but the acts of the official“). And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22-23 (1937) (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute“); Harrison 82 (“[C]ourts do not make [nonseverable] provisions inoperative. . . . Invalidation by courts is a figure of speech“); Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018) (manuscript, at 4) (“The federal courts have no authority to erase a duly enacted law from the statute books“), online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3158038 (as last visited May 11, 2018).
Because courts cannot take a blue pencil to statutes, the severability doctrine must be an exercise in statutory interpretation. In other words, the severability doctrine has courts decide how a statute operates once they conclude that part of it cannot be constitutionally enforced. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1333-1334 (2000); Harrison 88. But even under this view, the severability doctrine is still dubious for at least two reasons.
First, the severability doctrine does not follow basic principles of statutory interpretation. Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make “a nebulous inquiry into hypothetical congressional intent.” Booker, supra, at 320, n. 7 (THOMAS, J., dissenting in part). It requires judges to determine what Congress would have intended had it known that part of its statute was
Second, the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions. See Stern 77; Lea, Situational Severability, 103 Va. L. Rev. 735, 788-803 (2017) (Lea). If one provision of a statute is deemed unconstitutional, the severability doctrine places every other provision at risk of
being declared nonseverable and thus inoperative; our precedents do not ask whether the plaintiff has standing to challenge those other provisions. See National Federation of Independent Business v. Sebelius, 567 U. S. 519, 696-697 (2012) (joint dissent) (citing, as an example, Williams v. Standard Oil Co. of La., 278 U. S. 235, 242-244 (1929)). True, the plaintiff had standing to challenge the unconstitutional part of the statute. But the severability doctrine comes into play only after the court has resolved that issue—typically the only live controversy between the parties. In every other context, a plaintiff must demonstrate standing for each part of the statute that he wants to challenge. See Lea 739, 751, and nn. 79-80 (citing, as examples, Davis v. Federal Election Comm‘n, 554 U. S. 724, 733-734 (2008); DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 346, 350-353 (2006)). The severability doctrine is thus an unexplained exception to the normal rules of standing, as well as the separation-of-powers principles that those rules protect. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 101 (1998).
In sum, our modern severability precedents are in tension with longstanding limits on the judicial power. And, though no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so.
I agree with JUSTICE GINSBURG that
Why would Congress enact both these provisions? The obvious answer is that Congress wanted to “keep sports gambling from spreading.” S. Rep. No. 102-248, pp. 4-6 (1991). It feared that widespread sports gambling would “threate[n] to change the nature of sporting events from wholesome entertainment for all ages to devices for gambling.” Id., at 4. And it may have preferred that state authorities enforce state law forbidding sports gambling than require federal authorities to bring civil suits to enforce federal law forbidding about the same thing. Alternatively, Congress might have seen subsection (2) as a backup, called into play if subsection (1)‘s requirements, directed to the States, turned out to be unconstitutional—which, of course, is just what has happened. Neither of these objectives is unreasonable.
So read, the two subsections both forbid sports gambling but
As so interpreted, the statutes would make New Jersey‘s victory here mostly Pyrrhic. But that is because the only problem with the challenged part of
I consequently join JUSTICE GINSBURG‘s dissenting opinion in part, and all but Part VI-B of the Court‘s opinion.
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER joins in part, dissenting.
The petition for certiorari filed by the Governor of New Jersey invited the Court to consider a sole question: “Does a federal statute that prohibits modification or repeal of state-law prohibitions on private
Assuming, arguendo, a “yes” answer to that question, there would be no cause to deploy a wrecking ball destroying the Professional and Amateur Sports Protection Act (PASPA) in its entirety, as the Court does today. Leaving out the alleged infirmity, i.e., “commandeering” state regulatory action by prohibiting the States from “authoriz[ing]” and “licens[ing]” sports-gambling schemes,
Surely, the accountability concern that gave birth to the anticommandeering doctrine is not implicated in any federal proscription other than the bans on States’ authorizing and licensing sports-gambling schemes. The concern triggering the doctrine arises only “where the Federal Government compels States to regulate” or to enforce federal law, thereby creating the appearance that state officials are responsible for policies Congress forced them to enact. New York v. United States, 505 U. S. 144, 168 (1992). If States themselves and private parties may not
operate sports-gambling schemes, responsibility for the proscriptions is hardly blurred. It cannot be maintained credibly that state officials have anything to do with the restraints. Unmistakably, the foreclosure of sports-gambling schemes, whether state run or privately operated, is chargeable to congressional, not state, legislative action.
When a statute reveals a constitutional flaw, the Court ordinarily engages in a salvage rather than a demolition operation: It “limit[s] the solution [to] severing any problematic portions while leaving the remainder intact.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 508 (2010) (internal quotation marks omitted). The relevant question is whether the Legislature would have wanted unproblematic aspects of the legislation to survive or would want them to fall along with the infirmity.3 As the Court stated in New York, “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, . . . the invalid part may be dropped if what is left is fully operative as a law.” 505 U. S., at 186 (internal quotation marks omitted). Here, it is scarcely arguable that Congress “would have preferred no statute at all,” Executive Benefits Ins. Agency v. Arkison, 573 U. S. 25, 36 (2014), over one that simply stops States and private parties alike from operating sports-gambling schemes.
The Court wields an ax to cut down
In particular, the Court holds that the prohibition on state “operat[ion]” of sports-gambling schemes cannot survive, because it does not believe Congress would have “wanted to prevent States from running sports lotteries” “had [it] known that States would be free to authorize sports gambling in privately owned casinos.” Ante, at 26. In so reasoning, the Court shutters
This plain error pervasively infects the Court‘s severability analysis. The Court strikes Congress’ ban on state “sponsor[ship]” and “promot[ion]” of sports-gambling schemes because it has (mistakenly) struck Congress’ prohibition on state “operat[ion]” of such schemes. See ante, at 27. It strikes Congress’ prohibitions on private “sponsor[ship],” “operat[ion],” and “promot[ion]” of sports-gambling schemes because it has (mistakenly) struck those same prohibitions on the States. See ante, at 27-28. And it strikes Congress’ prohibition on “advertis[ing]” sports-gambling schemes because it has struck everything else. See ante, at 29-30.
* * *
In
not prohibit States from authorizing or licensing such schemes. Deleting the alleged “commandeering” directions would free the statute to accomplish just what Congress legitimately sought to achieve: stopping sports-gambling regimes while making it clear that the stoppage is attributable to federal, not state, action. I therefore dissent from the Court‘s determination to destroy