Lead Opinion
OPINION OF THE COURT
Bеtting on sports is an activity that has unarguably increased in popularity over the last several decades. Seeking to address instances of illegal sports wagering within its borders and to improve its economy, the State of New Jersey has sought to license gambling on certain professional and amateur sporting events. A conglomerate of sports leagues, displeased at the prospect of State-licensed gambling on their athletic contests, has sued to halt these efforts. They contend, alongside the United States as intervening plaintiff, that New Jersey’s proposed law violates a federal law that prohibits most states from licensing sports gambling, the Professional and Amateur Sports Protection Act of 1992 (PASPA), 28 U.S.C. § 3701 et seq.
In defense of its own sports wagering law, New Jersey counters that the leagues lack standing to bring this case because they suffer no injury from the State’s legalization of wagering on the outcomes of their games. In addition, alongside certain intervening defendants, New Jersey argues that PASPA is beyond Congress’ Commerce Clause powers to enact and that it violates two important principles that underlie our system of dual state and federal sovereignty: one known as the “anti-commandeering” doctrine, on the ground that PASPA impermissibly prohibits the states from enacting legislation to license sports gambling; the other known as the “equal sovereignty” principle, in that PASPA permits Nevada to license widespread sports gambling while banning other states from doing so. The District Court disagreed with each of these contentions, granted summary judgment to the
On appeal, we conclude that the leagues have Article III standing to enforce PAS-PA and that PASPA is constitutional. As will be made clear, accepting New Jersey’s arguments on the merits would require us to take several extraordinary steps, including: invalidating for the first time in our Circuit’s jurisprudence a law under the anti-commandeering principle, a move even the United States Supreme Court has only twice made; expanding that principle to suspend commonplace operations of the Supremacy Clause over state activity contrary to federal laws; and making it harder for Congress to enact laws pursuant to the Commerce Clause if such laws affect some states differently than others.
We are cognizant that certain questions related to this case — whether gambling on sporting events is harmful to the games’ integrity and whether statеs should be permitted to license and profit from the activity — engender strong views. But we are not asked to judge the wisdom of PASPA or of New Jersey’s law, or of the desirability of the activities they seek to regulate. We speak only to the legality of these measures as a matter of constitutional law. Although this “case is made difficult by [Appellants’] strong arguments” in support of New Jersey’s law as a policy matter, see Gonzales v. Raich,
I. LEGAL FRAMEWORK
Wagering on sporting events is an activity almost as inscribed in our society as participating in or watching the sports themselves. New Jersey tells us that sports betting in the United States — most of it illegal — is a $500 billion dollar per year industry. And scandals involving the rigging of sporting contests in the interest of winning a wager are as old as the games themselves: the infamous Black Sox scandal of the 1919 World Series, or Major League Baseball’s (“MLB”) lifetime ban on all-time hits leader Pete Rose for allegedly wagering on games he played in come to mind. And the recent prosecution of Tim Donaghy, a National Basketball Association (“NBA”) referee who bet on games that he officiated, reminds us of problems that may stem from gambling.
However, despite its pervasiveness, few states have ever licensed gambling on sporting events. Nevada alone began permitting widespread betting on sporting events in 1949 and just three other states — Delaware, Oregon, and Montana— have on occasion permitted limited types of lotteries tied to the outcome of sporting events, but never single-game betting. Sports wagering in all forms, particularly State-licensed wagering, is and has been illegal elsewhere. See, e.g., 18 Pa. Cons. Stat. Ann. § 5513; Del.Code Ann. tit. 11, § 1401, et seq. Congress took up and eventually enacted PASPA in 1992 in response to increased efforts by states to begin licensing the practice.
A. The Professional and Amateur Sports Protection Act of 1992
PASPA’s key provision applies for the most part identically to “States” and “persons,” providing that neither may
sponsor, operate, advertise, or promote ... a lottery, sweepstakes, or other betting, gambling, or wagering schemebased directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to pаrticipate, or on one or more performances of such athletes in such games.
28 U.S.C. § 3702. The prohibition on private persons is limited to any such activity conducted “pursuant to the law or compact of a governmental entity,” id. § 3702(2), while the states are subject to an additional restriction: they may not “license! ] or authorize by law or compact” any such gambling activities, id. §§ 3702(1), 3701.
PASPA contains three relevant exceptions — a “grandfathering” clause that releases Nevada from PASPA’s grip, see id. § 3704(a)(2), a clause that permitted New Jersey to license sports wagering in Atlantic City had it chosen to do so within one year of PASPA’s enactment, see id. § 3704(a)(3), and a grandfathering provision permitting states like Delaware and Oregon to continue the limited “sports lotteries” that they had previously conducted, see id. § 3704(a)(1). PASPA provides for a private right of action “to enjoin a violation [of the law] ... by the Attorney General or by a ... sports organization ... whose competitive game is alleged to be the basis of such violation.” Id. § 3703.
Only one Court of Appeals has decided a case under PASPA — ours. In Office of the Commissioner of Baseball v. Markell we held that PASPA did not permit Delaware to license single-game betting because the relevant grandfathering provision for Delaware permitted only lotteries consisting of multi-game parlays on NFL teams.
The Act’s legislative history is sparse but mostly consistent with the foregoing. The Report of the Senate Judiciary Committee makes clear that PASPA’s purpose is to “prohibit sports gambling conducted by, or authorized under the law of, any State or governmental entity” and to “stop the spread of State-sponsored sports gambling.” Sen. Rep. 102-248, at 4, reprinted in 1992 U.S.C.C.A.N. 3553, 3555 (“Senate Report”). The Senate Report specifically notes legislators’ concern with “State-sponsored” and “State-sanctioned” sports gambling. Id. at 3555.
The Senate Report catalogues what the Committee believed were some of the problems arising from sports gambling. Importantly, the Committee noted its concern for “the integrity of, and public confidence in, amateur and professional sports” and its concern that “[widespread legalization of sports gambling would inevitably promote suspicion about controversial plays and lead fans to think ‘the fix was in’ whenever their team failed to beat the point-spread.” Id. at 3556. The Senate Report also stated its concurrence with the then-director of New Jersey’s Division of Gaming Enforcement’s statement that “most law enforcеment professionals agree that legalization has a negligible impact on, and in some ways enhances, illegal markets.” Id. at 3558. This is so because “many new gamblers will ... inevitably ... seek to move beyond lotteries to wagers with higher stakes and more serious consequences.” Id.
The Senate Report also explains the Committee’s conclusion that “[s]ports gambling is a national problem” because “[t]he moral erosion it produces cannot be limited geographically” given the thousands who earn a livelihood from professional sports and the millions who are fans of them, and because “[o]nce a State legalizes sports gambling, it will be extremely difficult for other States to resist the lure.” Id. at 3556. Finally, it notes that PASPA exempts Nevada because the Committee did not wish to “threaten [Nevada’s] econ
B. Sports Gambling in New Jersey Since PASPA Was Enacted
Although New Jersey in its discretion chose not to avail itself of PASPA’s exemption within the one-year window, “[o]ver the course of the next two decades ... the views of the New Jersey voters regarding sports wagering evolved.” Br. of Appellants Sweeney, et al. 4. In 2010, the New Jersey Legislature held public hearings during which it heard testimony that regulated sports gambling would generate much-needed revenues for the State’s casinos and racetracks, and during which legislators expressed a desire to “to stanch the sports-wagering black market flourishing within [New Jersey’s] borders.” Br. of Appellants Christie, et al. 13 (“N.J.Br.”). The Legislature ultimately decided to hold a referendum which would result in an amendment to the State’s Constitution permitting the Legislature to “authorize by law wagering ... on the results of any professional, college, or amateur sport or athletic event.” N.J. Const. Art. IV, § VII, ¶ 2(D), (F). The measure was approved by the voters, and the Legislature later enacted the law that is now asserted to be in violation of PASPA — the “Sports Wagering Law,” which permits State authorities to license sports gambling in casinos and racetracks and casinos to operate “sports pools.” N.J.S.A. 5:12A-1 et seq.; see also N.J.A.C. § 13:69N-1.1 et seq. (regulations implementing the law).
II. PROCEDURAL HISTORY
The NBA, MLB, the National Collegiate Athletic Association (“NCAA”), the National Football League (“NFL”), and the National Hockey League (“NHL”) (collectively, the “Leagues”), sued New Jersey Governor Chris Christie, New Jersey’s Racing Commissioner, and New Jersey’s Director of Gaming Enforcement (the “State” or “New Jersey”), under 28 U.S.C. § 3703, asserting that the Sports Wagering Law is invalidated by PASPA. The New Jersey Senate Majority Leader Stephen Sweeney and House Speaker Sheila Oliver intervened as defendants, alongside the New Jersey Thoroughbred Horsemen’s Association, the owner of the Monmouth Park Racetrack, a business where sports gambling would occur under the Sports Wagering Law (the “NJTHA”) (collectively, “Appellants”).
The State moved to dismiss for lack of standing and the District Court ordered expedited discovery on that question. After the completion of discovery and oral arguments, the District Court concluded that the Leagues have standing. Nat’l Collegiate Athletic Ass’n v. Christie, No. 12-4947,
With the constitutionality of PASPA then squarely at issue, the District Court invited the United States to intervene pursuant to 28 U.S.C. § 2403. The District Court ultimately upheld PASPA’s constitutionality, granted summary judgment to the Leagues, and enjoined the Sports Wagering Law from going into effect. Nat’l Collegiate Athletic Ass’n v. Christie,
III. JURISDICTION: WHETHER THE LEAGUES HAVE STANDING
The District Court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1331, and we have appellate jurisdiction over its final judgment under § 1291. Our jurisdiction, however, is limited by the Constitution’s “cases” and “controversies” requirement. U.S. CONST., art. Ill, § 2. To satisfy this jurisdictional limitation, the party invoking federal court authority
The Leagues argue they have standing because their own games are the subject of the Sports Wagering Law. They also contend that the law will increase the total amount of gambling on sports available, thereby souring the public’s perception of the Leagues as people suspect that games are affected by individuals with a perhaps competing hidden monetary stake in their outcome. Appellants counter that the Leagues cannot show a concrete, non-speculative injury from any potential increase in legal gambling.
The District Court granted summary judgment to the Leagues, reasoning that Markell supports a holding that the Leagues have standing, and that reputational injury is a legally cognizable harm that may confer standing. It also found sufficient facts in the record to conclude that the Sports Wagering Law will result in an increase in fans’ negative perceptions of the Leagues. We review de novo the legal conclusion that the Leagues have standing, and we review for clear error any factual findings underlying the District Court’s determination. Marion v. TDI Inc.,
A. The Effect of Markell
Markell, like this case, was a lawsuit by the Leagues to stop a state from licensing single-game betting on the outcome of sporting events. In Markell we “beg[a]n [our analysis], as always, by considering whether we ha[d] jurisdiction to hear [the] appeal,” and later concluded that we did have jurisdiction.
B. Standing Law Generally
Under the familiar three-part test, to establish standing, a plaintiff must show (1) an “injury in fact,” i.e., an actual or imminently threatened injury that is “concrete and particularized” to the plaintiff; (2) causation, i.e., traceability of the injury to the actions of the defendant; and (3) redressability of the injury by a favorable decision by the Court. Summers v. Earth Island Inst.,
Causation and redressability may be met when “a party ... challenge^] government action that permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government’s action.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
Accordingly, we focus on the injury-in-fact requirement, the “contours of [which], while not precisely defined, are very generous.” Bowman v. Wilson,
C. Whether the Sports Wagering Law Causes the Leagues An Injury In Fact
As noted, the Leagues offer two independent bases for standing: that the Sports Wagering Law makes the Leagues’ games the object of state-licensed gambling and that they will suffer reputational harm if such activity expands. We address each in turn.
1. The Leagues are essentially the object of the Sports Wagering Law
Injury in fact may be established when the plaintiff himself is the object of the action at issue. Id. Thus, the Leagues are correct that if the Sports Wagering Law is directed at them, the injury-in-fact requirement is satisfied.
Fairly read, however, the Sports Wagering Law does not directly regulate the Leagues, but instead regulates the activities that may occur at the State’s casinos and racetracks. We thus hesitate to conclude that the Leagues may rely solely on the existence of the Sports Wagering Law to show injury. But that is not to say that we are glib with respect to one of the main purposes of the law: to use the Leagues’ games for profit. Cf. NFL v. Governor of Del.,
Appellants counter that the Leagues’ interest in not seeing their games subject to wagering is a non-cognizable “claim for the loss of psychic satisfaction.” N.J. Br. at 31 (citing Steel Co. v. Citizens for a Better Env’t,
Appellants also argue that because the Leagues do not have a proprietary interest in the outcomes of their games they may not seek to prevent others from profiting from them. This contention relies on the holding in NFL v. Governor of Delaware, that a Delaware lottery based on the outcome of NFL games did not constitute a misappropriation of the NFL’s property.
2. Reputational Harm as Injury In Fact
The Leagues may also meet their burden of establishing injury from a law aimed at their games by proving that the activity sanctioned by that law threatens to cause them reputational harm amongst their fans and the public.
(a) Reputation Harm Is a Legally Cognizable Injury
As a matter of law, reputational harm is a cognizable injury in fact. The Supreme Court so held in Meese v. Keene, where it concluded that a senator who wished to screen films produced by a foreign company had standing to challenge a law requiring the identification of such films as foreign “political propaganda” because the label could harm his reputation with the public and hurt his chances at reelection.
The Leagues’ claim of injury is identical to that of the plaintiffs in Keene and Doe: they are harmed by their unwanted association with an activity they (and large portions of the public) disapprove of — gambling. Appellants do not dispute this legal premise, but attack the strength of the evidence that the Leagues have proffered to tie the Sports Wagering Law to the reputational harm they assert. These arguments overstate what the Leagues must show to demonstrate reputational harm in this context and, in any case, ignore the strength of the proffered evidence.
(b) The Evidence In the Record Supports the District Court’s Conclusion that Reputational Harm Will Occur
To be sure, at the summary judgment stage, mere allegations of harm are insufficient and specific facts are required. See Lujan,
For one, the conclusion that there is a link between legalizing sports gambling and harm to the integrity of the Leagues’ games has been reached by several Congresses that have passed laws addressing gambling and sports, see, e.g., H.R.Rep. No. 88-1053 (1963), 1964 U.S.C.C.A.N. 2250, 2251 (noting that when gambling interests are involved, the “temptation to fix games has become very great,” which in turn harms the honesty of the games); Senate Report at 3555 (noting that PASPA was necessary to “maintain the integrity of our national pastime”). It is, indeed, the specific conclusion reached by the Congress that enacted PASPA, as reflected by the statutory cause of action conferred to the Leagues to enforce the law when their individual games are the target of state-licensed sports wagering. See 28 U.S.C. § 3703. And, presumably, it has also been at least part of the conclusions of the various state legislatures that have blocked the practice throughout our history.
But even if polls like in Keene were always required in reputational harm cases, the Leagues have met that burden. The record is replete with evidence showing that being associated with gambling is stigmatizing, regardless of whether the gambling is legal or illegal. Before the District Court were studies showing that: (1) some fans from each League viewed gambling as a problem area for the Leagues, and some fans expressed their belief that game fixing most threatened the Leagues’ integrity [App. 1605-06]; (2) some fans did not want a professional sports franchise to open in Las Vegas, and some fans would be less likely to spend money on the Leagues if that occurred; and (3) a large number of fans oppose the expansion of legalized sports betting. [2293-98.] This more than suffices to meet the Leagues’ evidentiary burden under Keene and Doe — being associated with gambling is undesirable and harmful to one’s reputation.
Although the Leagues could end their injury in fact proffer there, they also set forth evidence establishing a clear link between the Sports Wagering Law and increased incentives for game-rigging. First, the State’s own expert noted that state-licensing of sports gambling will result in an increase in the total amount of (legal plus illegal) gambling on sports. [App. 325]. Second, a report by the National Gambling Impact Study Commission, prepared at the behest of Congress in 1999, explains that athletes are “often tempted to bet on contests in which they participate, undermining the integrity of sporting contests.” App. 743. Third, there has been at least one instance of match-fixing for NCAA games as a result of wagers placed through legitimate channels, and several as a result of wagers placed in illegal markets for most of the Leagues, and NCAA players' háve affected or have been asked to affect the outcome of games “because of gambling debt.” App. 2245. Thus, more legal gambling leads to more total gambling, which in turn leads to an increased incentive to fix or attempt to fix the Leagues’ matches.
3. Appellants’ Counterarguments
Appellants posit that the Leagues cannot establish injury based on any stigma that may attach to wagering, because fans would not think negatively of the Leagues given that it is the State that is licensing the activity against the Leagues’ wishes. But as then-Circuit Judge Scalia explained, an argument that the “public reaction [to] the' alleged harm ... is an irrational one ... is irrelevant to the question of core, constitutional injury-in-fact, which requires no more than defacto causality.” Block v. Meese,
We also find unpersuasive the contention that the increase in incentives to rig the outcome of the Leagues’ games cannot give rise to standing because they depend on unknown actions of third parties. The Leagues do not seek to enjoin individuals from rigging games; they seek to enjoin New Jersey’s law. That a third party’s action may be necessary to complete the complained-of harm does not negate the existence of an injury in fact from the Sports Wagering Law or negate causation and redressability. “It is impossible to maintain ... that there is no standing to sue regarding action of a defendant which harms the plaintiff only through the reaction of third persons. If that principle were true, it is difficult to see how libel actions or suits for inducing breach of contract could be brought in federal court....” Id. Thus, “the traceability requirement [may be] met even where the conduct in question might not have been a proximate cause of the harm.” Edmonson v. Lincoln Nat’l Life Ins. Co.,
Appellants also assert that granting summary judgment to the Leagues was
A plaintiff does not lose standing to challenge an otherwise injurious action simply because he may also derive some benefit from it. Our standing analysis is not an accounting exercise and it does not require a decision on the merits. See, e.g., Denney v. Deutsche Bank AG,
As a last resort, Appellants question the Leagues’ commitment to their own argument that state-licensed sports wagering harms them, noting that the Leagues hold events in jurisdictions, such as Canada and England, where gambling on sports is licensed, and that they promote and profit from products that are akin to gambling on sports, such as pay-to-play fantasy leagues. But standing is not defeated by a plaintiffs alleged unclean hands and does not require balancing the equities. That the Leagues may believe that holding events in Canada and England is not injurious to them does not negate that harm may arise from an expansion of sports wagering to the entire country. The same can be said of the Leagues’ promotion of fantasy sports, even if we accept that these activities are akin to head-to-head gambling.
* * *
That the Leagues have standing to enforce a prohibition on state-licensed
IV. THE MERITS
We turn now to the merits. The centerpiece of Appellants and amici’s attack on PASPA is that it impermissibly commandeers the states. But at least one party raises the spectre that PASPA is also beyond Congress’ authority under the Commerce Clause of the U.S. Constitution. We thus examine first whether Congress may even regulate the activities that PAS-PA governs. Only after concluding that Congress may do so can we consider whether, in exercising its affirmative powers, Congress exceed a limitation imposed in the Constitution, such as by the anti-commandeering and equal sovereignty principles. See, e.g., Reno v. Condon,
A. Whether PASPA is Within Congress’ Commerce Clause Power
1. Modern Commerce Clause Law
Among Congress’ enumerated powers in Article I is the ability to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. L, § 8, cl. 3. As is well-known, since NLRB v. Jones & Laughlin Steel Corporation,
2. Gambling and the Leagues’ Contests, Considered Separately or Together, Substantially Affect Interstate Commerce
Guided by these principles, it is self-evident that the activity PASPA targets, state-licensed wagering on sports, may be regulated consistent with the Commerce Clause.
First, both wagering and national sports are economic activities. A wager is simply
Second, there can be no serious dispute that the professional and amateur sporting events at the heart of the Leagues’ operations “substantially affect” interstate commerce. The Leagues are associations comprised of thousands of clubs and members, [App. 105], which in turn govern the operations of thousands of sports teams organized across the United States, competing for fans and revenue across the country. “Thousands of Americans earn a ... livelihood in professional sports. Tens of thousands of others participate in college sports.” Senate Report at 3557. Indeed, some of the Leagues hold sporting events abroad, affecting commerce with Foreign Nations.
Third, it immediately follows that placing wagers on sporting events also substantially affects interstate commerce. As New Jersey indicates, Americans gamble up to $500 billion on sports each year. [App. 330-31], And whatever effects gambling on sports may have on the games themselves, those effects will plainly transcend state boundaries and affect a fundamentally national industry. Accordingly, we have deferred to Congressional determinations that “gambling involves the use and has an effect upon interstate commerce.” United States v. Riehl,
At bottom, it is clear that PASPA is aimed at an activity that is “quintessentially economic” and that has substantial effects on interstate commerce. See Raich,
3. PASPA Does Not Unconstitutionally Regulate Purely Local Activities
Appellants nevertheless assert that PASPA is unconstitutional because it “reaches unlimited betting activity ... that cannot possibly affect interstate commerce ... [such as] a casual bet on a Giants-Jets football game between family members.” Br. of NJTHA at 34. Parsing words from the statute, they insist PASPA reaches these activities because it prohibits betting in “competitive gаmes” involving “amateur or professional athletes.” 28 U.S.C. § 3702. This argument is merit-less.
For one, PASPA on its face does not reach the intrastate activities that Appellants - contend it does. PASPA prohibits only gambling “schemes” and only those carried out “pursuant to law or compact.” 28 U.S.C. § 3702. The activities described in Appellants’ examples are nor carried out pursuant to state law, or pursuant to “a systemic plan; a connected or orderly arrangement ... [or] [a]n artful plot, or
Moreover, even entertaining that PASPA somehow reaches these activities, Congressional action over them is permissible if Congress has a “rational basis” for concluding that the activity in the aggregate has a substantial effect on interstate commerce. Raich,
Appellants finally seek support in the Supreme Court’s holding that the “individual mandate” of the Affordable Care Act is beyond Congress’ power under the Commerce Clause. See Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S.-,
B. Whether PASPA Impermissibly Commandeers the States
Having concluded that Congress may regulate sports wagering consistent with the Commerce Clause, we turn to PAS-PA’s operation in the case before us.
As noted, PASPA makes it “unlawful for a governmental entity to ... authorize by law or compact” gambling on sports. 28 U.S.C. § 3702. This is classic preemption language that operates, via the Constitution’s Supremacy Clause, see U.S. Const., art. VI, cl. 2, to invalidate state laws that are contrary to the federal statute. See, e.g., Am. Trucking Ass’ns v. City of Los Angeles, — U.S. -,
Appellants do not contest any of the foregoing, but argue instead that PASPA’s operation over the Sports Wagering Law violates the “anti-commandeering” principle, which bars Congress from conscripting the states into doing the work of federal officials. The import of this argument, then, is that impermissible anti-commandeering may occur even when all a federal law does is supersede state law via the Supremacy Clause. But the Supreme Court’s anti-commandeering jurisprudence has never entertained this position, let alone accepted it.
1. The Anti-Commandeering Principle
“As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government.” Gregory v. Ashcroft,
Among the important corollaries that flow from the foregoing is that any law that “commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program” is beyond the inherent limitations on federal power within our dual system. Hodel v. Va. Surface Mining & Reclamation Ass’n,
(a) Permissible regulation in a pre-emptible field: Hodel and FERC
The first modern, relevant incarnation of the anti-commandeering principle appeared in Hodel v. Virginia Surface Mining & Reclamation Ass’n. The law at issue there imposed federal standards for coal mining on certain surfaces and required any state that wished to “assume permanent regulatory authority over ... surface coal mining operations” to “submit a proposed permanent program” to the Federal Government, which, among other things, required the “state legislature [to] enact[ ] laws implementing the environmental protection standards established by the [a]ct.” Hodel,
The next year, in F.E.R.C. v. Mississippi, the Court upheld a provision requiring state utility regulatory commissions to “consider” whether to enact certain standards for energy efficiency but leaving to the states the ultimate choice of whether to adopt those standards or not.
(b) Permissible Prohibitions on State Action: Baker and Reno
In a different pair of anti-commandeering cases, the Court upheld affirmative prohibitions on state action that effectively invalidated contrary state laws and even required the states to enact new measures. First, in South Carolina v. Baker, the Supreme Court upheld the validity of laws that “directly regulated the States by prohibiting outright the issuance of bearer bonds.”
Then, in Reno v. Condon, the Court unanimously rejected an anti-commandeering challenge to a law prohibiting states from disseminating personal information obtained by state departments of motor vehicles. South Carolina complained that the act required its employees to learn its provisions and expend resources to comply and, indeed, the federal law effectively blocked the operation of state laws governing the disclosure of that information.
(c) Impermissible Anti-Commandeering: New York and Printz
In contrast to the foregoing, the Court has twice struck down portions of a federal law on anti-commandeering grounds. The first was in New York v. United States, which dealt with a law meant to regulate and encourage the orderly disposal of low-level radioactive waste by the states.
The Court then applied these principles, in Printz, to invalidate the provisions of the Brady Act that required local authorities of certain states to run background checks on persons seeking to' purchase guns. The Court held that Congress “may neither issue directives requiring the States to address particular problems, nor command the States’ officers ... to administer or enforce a federal regulatory program.”
To date, the schemes at issue in New York and Printz remain the only two that the Supreme Court has struck down under the anti-commandeering doctrine. Our Court has not yet had occasion to consider an anti-commandeering challenge.
2. Whether PASPA Violates the Anti-Commandeering Principle (a) Anti-Commandeering and the Supremacy Clause
Appellants’ arguments that PASPA violates anti-commandeering principles run into an immediate problem: not a single
In light of the fact that the Supremacy Clause is the Constitution’s answer to the problem that had made life difficult under the Articles of Confederation — the lack of a mechanism to enforce uniform national policies — accepting Appellants’ position that a state’s sovereignty is violated when it is precluded from following a policy different than that set forth by federal law (as New Jersey seeks to do with its Sports Wagering Law), would be revolutionary. See The Federalist No. 44, at 323 (James Madison) (B. Fletcher ed.1996) (explaining that without the Supremacy Clause “all the authorities contained in the proposed Constitution ... would have been annulled, and the new Congress would have been reduced to the same impotent condition with [the Articles of Confederation]”).
And it is not hard to see why invalidating contrary state law does not implicate a state’s sovereignty or otherwise commandeer the states. When Congress passes a law that operates via the Supremacy Clause to invalidate contrary state laws, it is not telling the states what to do, it is barring them from doing something they want to do. Anti-commandeering challenges to statutes worded like PASPA have thus consistently failed. See, e.g., Kelley v. United States,
(b) PASPA is Unlike the Laws Struck Down in New York and Printz
Appellants’ efforts to analogize PASPA to the provisions struck down in Neiv York and Pñntz are unavailing. Unlike the problematic “take title” provision and the background check requirements, PASPA does not require or coerce the states to lift a finger—they are not required tо pass laws, to take title to anything, to conduct background checks, to expend any funds, or to in any way enforce federal law. They are not even required, like the states were in F.E.R.C., to expend resources considering federal regulatory regimes, let alone to adopt them. Simply put, we discern in PASPA no “directives requiring the States to address particular problems” and no “eommand[s] to the States’ officers ... to administer or enforce a federal regulatory program.” Pñntz,
As the District Court correctly reasoned, the fact that PASPA sets forth a prohibition, while the New York/Pñntz regulations required affirmative action(s) on the part of the states, is of significance. Again, it is hard to see how Congress can “commandeer” a state, or how it can be found to regulate how a state regulates, if it does not require it to do anything at all. The distinction is palpable from the Supreme Court’s anti-commandeering cases themselves. State laws requiring affirmative acts may or may not be constitutional, compare F.E.R.C.,
Under PASPA, “[i]t shall- be unlawful for ... a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact ” a sports wagering scheme. 28 U.S.C. § 3702(1) (emphasis added). Nothing in these words requires that the states keep any law in place. All that is prohibited is the issuance of gambling “license[s]” or the affirmative “authorization] by law” of gambling schemes. Appellants contend that to the extent a state may choose to repeal an affirmative prohibition of sports gambling, that is the same as “authorizing” that activity, and therefore PASPA precludes repealing prohibitions on gambling just as it bars affirmatively licensing it. This argument is problematic in numerous respects. Most basically, it ignores that PASPA speaks only of “authorizing by law” a sports gambling scheme. We do not see how having no law in place governing sports wagering is the same as authorizing it by law. Second, the argument ignores that, in reality, the lack of an affirmative prohibition of an activity does not mean it is affirmatively authorized by law. The right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people. Indeed, that the Legislature needed to enact the Sports Wagering Law itself belies any contention that the mere repeal of New Jersey’s ban on sports gambling was sufficient to “authorize [it] by law.” The amendment to New Jersey’s Constitution itself did not purport to affirmatively authorize sports wagering but indeed only gave the Legislature the power to “authorize by law” such activities. N.J. Const. Art. IV, § VII, ¶ 2(D), (F). Thus, the New Jersey Legislature itself saw a meaningful distinction between repealing the ban on sports wagering and authorizing it by law, undermining any contention that the amendment alone was sufficient to affirmatively authorize sports wagering — the Sports Wagering Law was required. Cf Hernandez v. Robles,
In short, Appellants’ attempt to read into PASPA a requirement that the states must affirmatively keep a ban on sports gambling in their books rests on a false equivalence between repeal and authorization and reads the term “by law” out of the statute, ignoring the fundamental canon that, as between two plausible statutory constructions, we ought to prefer the one that does not raise a series of constitutional problems. See Clark v. Martinez,
To be sure, we take seriously the argument that many affirmative commands can be easily recast as prohibitions. For example, the background check rule of Printz could be recast as a requirement that the states refrain from issuing handgun permits unless background checks are conducted by their officials. The anti-commandeering principle may not be circumvented so easily. But the distinction between PASPA’s blanket ban and Printz’s command, even if the latter is recast as a prohibition, remains. PASPA does not say to states “you may only license sports gambling if you conscript your officials into policing federal regulations” or otherwise impose any condition that the states carry out an affirmative act or implement a federal scheme before they may regulate or issue a license. It simply bars certain acts under any and all circumstances. And if affirmative commands may always be recast as prohibitions, then the prohibitions in myriads of routine federal laws may always be rephrased as affirmative commands. This shows that Appellants’ argument proves too much — the anti-commandeering cases, under that view, imperil a plethora of acts currently termed as prohibitions on the states.
And, to the extent we entertain the notion that PASPA’s straightforward prohibition on action may be recast as presenting two options, these options are also quite unlike the two coercive choices available in New York — pass a law to deal with radioactive waste or expend resources in taking title to it. Neither of PASPA’s two “choices” affirmatively requires the states to enact a law, and both choices leave much room for the states to make their own policy. Thus, under PASPA, on the one hand, a state may repeal its sports wagering ban, a move that will result in the expenditure of no resources or effort by any official. On the other hand, a state may choose to keep a complete ban on sports gambling, but it is left up to each state to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be.
We agree that these are not easy choices. And it is perhaps true (although there is no textual or other support for the idea) that Congress may have suspected that most states would choose to keep an actual prohibition on sports gambling on the books, rather than permit that activity to go on unregulated. But the fact that Congress gave the states a hard or tempting choice does not mean that they were given no choice at all, or that the choices are otherwise unconstitutional. See United States v. Martinez-Salazar,
Finally, we note that the attempt to equate a ban on state-sanctioned sports gambling to a plan by Congress to force the states into banning the activity altogether gives far too much credit to Congress’ strong-arming powers. The attendant reality is that in the field of regulating certain activities, such as gambling, prostitution, and drug use, states have always gravitated towards prohibitions, regardless of Congress’ efforts. Indeed, as noted, all but one state prohibited broad state-sponsored gambling at the time PASPA was enacted. Congress, by prohibiting state-licensing schemes, may indeed have made it harder for states to turn their backs on the choices they previously made (although in PASPA it made it less hard for New Jersey), but that choice was already very hard, and very unlikely to be made to begin with (as New Jersey’s history with the regulation of sports gambling also illustrates).
(c) PASPA as Regulating State Conduct — Baker and Reno
Additionally, PASPA is remarkably similar to the prohibitions on state action upheld in Baker and Reno. Baker’s regulations prohibited the states from issuing bearer bonds, which in turn required states to issue new regulations and invalidated old ones; Reno’s anti-disclosure provisions prohibited the states from disseminating certain information, necessitating the expenditure of resources to comply with the federally imposed prohibitions. To the extent PASPA makes it unattractive for states to repeal their anti-sports wagering laws, which in turn requires enforcement by states, the effort PASPA requires is simply that the states enforce the laws they choose to maintain, and is therefore plainly less intrusive than the laws in Baker and Reno. PASPA also has thе effect, like the laws in those two cases, of rendering inoperative any contrary state laws.
We are not persuaded by Appellants’ arguments that Baker and Reno are inap-posite. They contend, first, that Reno is different because it involved regulation of the states in the same way as private parties. But that overstates the regulations at issue in Reno, which were directed at state DMVs and only incidentally prohibited private persons from further disseminating data they may obtain from the DMVs. See
Despite the fact that PASPA is very similar to the prohibition on state activity upheld unanimously in Reno, Appellants insist that certain statements in that opinion support its view that PASPA is unconstitutional. Appellants insist that under Reno a law is unconstitutional if it requires the states to govern according to Congress’ instructions or if it “influences” the ways in which the states regulate their own citizens. See N.J. Br. at 3, 18, 40, 42, 43, 45-46, 52. But no one contends that PASPA requires the states to enact any laws, and we have held that it also does not require states to maintain existing laws. And one line from Reno, that the law upheld there did not “control or influence the manner in which States regulated private parties,”
(d) The Sports Wagering Law Conflicts With Federal Policy With Respect to Sports Gambling and is Therefore Preempted
Alternativеly, to the extent PAS-PA coerces the states into keeping in place their sports-wagering bans, that coercion may be upheld as fitting into the exception drawn in anti-commandeering cases for laws that impose federal standards over conflicting state rules, in areas where Congress may otherwise preempt the field. Under this view, PASPA gives states the choice of either implementing a ban on sports gambling or of accepting complete deregulation of that field as per the federal standard. In Hodel, for example, the choice was implementing certain minimum-
PASPA makes clear that the federal policy with respect to sports gambling is that such activity should not occur under the auspices of a state license. As noted, PASPA prohibits individuals from engaging in a sports gambling scheme “pursuant to” state law. 28 U.S.C. § 3702(2). In other words, even if the provision that offends New Jersey, § 3702(1), were excised from PASPA, § 3702(2) would still plainly render the Sports Wagering Law inoperative by prohibiting private parties from engaging in gambling schemes pursuant to that authority. Thus, the federal policy with respect to sports wagering that § 3702(2) evinces is clear: to stop private parties from resorting to state law as a cover for gambling on sports. The Sports Wagering Law, in purporting to permit individuals to skirt § 3702(2), “authorizes [private parties] to engage in conduct that the federal [Act] forbids, [and therefore] it ‘stands as an obstacle to the[ ] accomplishment and execution of the full purposes and objectives of Congress,’ ” and accordingly conflicts with PASPA and is preempted. See Mich. Canners & Freezers Ass’n, Inc. v. Agric. Mktg. & Bargaining Bd.,
And there are other provisions in federal law, outside of PASPA, aimed at protecting the integrity of sports from the pall of wagering and that further demonstrate the federal policy of disfavoring sports-gambling. Indeed, in enacting PASPA, Congress explicitly noted that the law was “complementary to and ■ consistent with [then] current Federal law” with respect to sports wagering. Senate Report at 3557. Congress has, for example, criminalized attempts to'fix the outcome of a sporting event, 18 U.S.C. § 224, barred the placement of a sports gambling bet through wire communications to or from a place where such bets are illegal, 18 U.S.C. § 1084, and proscribed interstate transportation of means for carrying out sports lotteries, 18 U.S.C. §§ 1301,1307(d).
Appellants contend that Congress has not preempted state law but instead incorporated it to the extent certain prohibitions are tied to whatever is legal under state law. But PASPA itself is not tied to state law. Rather, PASPA prohibits en
Appellants also attempt to distinguish PASPA from other preemptive schemes. They note that preemptive schemes normally either impose an affirmative federal standard or a rule of non-regulation, and that PASPA does not impose an affirmative federal standard and cannot possibly be construed as a law aimed at permitting unregulated sports gambling because its aim was to stop the spread of sports gambling. But, PASPA’s text and legislative history reflect that its goal is more modest — to ban gambling pursuant to a state scheme — -because Congress was concerned that state-sponsored gambling carried with it a label of legitimacy that would make the activity appealing. Whatever else we may think were Congress’ secret intentions in enacting PASPA, nothing we know of speaks to a desire to ban all sports wagering. Moreover, the argument once again ignores that PASPA does impose a federal standard directly on private individuals, telling them, essentially, thou shall not engage in sports wagering under the auspices of a state-issued license. See 28 U.S.C. § 3702(2).
We hold that PASPA does not violate the anti-commandeering doctrine. Although many of the principles set forth in anti-commandeering cases may abstractly be used to support Appellants’ position, doing so would result in an undue expansion of the anti-commandeering doctrine. If attempting to influence the way states govern private parties, or requiring the expenditure of resources, or giving the states hard choices, were enough to violate anti-commandeering principles, then what of Hodel, F.E.R.C., Baker, and Reno The overriding of contrary state law via the Supremacy Clause may result in influencing or changing state policies, but there is nothing in the anti-commandeering eases to suggest that the principle is meant to apply when a law merely operates via the Supremacy Clause to invalidate contrary state action. Missing here is an affirmative command that the states enact or carry out a federal scheme and PASPA is simply nothing like the only two laws struck down under the anti-commandeering principle. Several important points buttress our conclusion: first, PASPA operates simply as a law of pre-emption, via the Supremacy Clause; second, PASPA thus only stops the states from doing something; and, finally, PASPA’s policy of stopping state-sanctioned sports gambling is confirmed by the independent prohibition on private activity pursuant to any such law. When so understood, it is clear that PASPA does not commandeer the states.
C. Whether PASPA Violates the Equal Sovereignty of the States
Finally, we address Appellants’ contention that PASPA violates the equal sovereignty of the states by singling out Nevada for preferential treatment and allowing only that State to maintain broad state-sponsored sports gambling.
1. Equal Sovereignty Cases — Northwest Austin and Shelby County
The centerpiece of Appellants’ equal sovereignty argument is the Supreme Court’s analysis of the Voting Rights Act of 1965 (“VRA”) in Northwest Austin Municipal Utility District Number One v.
In Shelby County, when asked to revisit the constitutionality of § 5, the Court reiterated the “basic principles” of equal sovereignty set forth in Northwest Austin and invalidated § 4(b) of the VRA, which set forth a formula used to determine what jurisdictions are covered by § 5 preclearance.
Appellants ask that we leverage these statements to strike down all of PASPA because it permits Nevada to license sports gambling. We decline to do so. First, the VRA is fundamentally different from PASPA. It represents, as the Supreme Court explained, “an uncommon exercise of congressional power” in an area “the Framers of the Constitution intended the States to keep for themselves ... the power tо regulate elections.” Shelby County,
Second, New Jersey would have us hold that laws treating states differently can “only” survive if they are meant to “remedy local evils” in a manner that is “sufficiently related to the problem that it targets.” N.J. Br. at 55. This position is overly broad in that it requires the existence of a one-size-fits-all test for equal sovereignty analysis, which, as the foregoing shows, is a perilous proposition in the context of the Commerce Clause. And Northwest Austin’s statement that equal sovereignty may yield when local evils appear was made immediately after the statement that regulatory “[distinctions
Third, there is nothing in Shelby County to indicate that the equal sovereignty principle is meant to apply with the same force outside the context of “sensitive areas of state and local policymaking.” Shelby County,
Fourth, even accepting that the equal sovereignty principle applies in the same manner in the context of Commerce Clause legislation, we have no trouble concluding that PASPA passes muster. Appellants’ argument that PASPA’s exemption does not properly remedy local evils because it “targetfed] the States in which legal sports wagering was absent,” N.J. Br. at 56 (emphasis omitted), again distorts PASPA’s purpose as being to wipe out sports gambling altogether. When the true purpose is considered — to stop the spread of state-sanctioned sports gambling — it is clear that regulating states in which sports-wagering already existed would have been irrational. Targeting only states where the practice did not exist is thus more than sufficiently related to the problem, it is precisely tailored to address the problem. If anything, Appellants’ quarrel seems to be with PASPA’s actual goal rather than with the manner in which it operates.
Finally, Appellants ignore another feature that distinguishes PASPA from the VRA — that far from singling out a handful of states for disfavored treatment, PASPA treats more favorably a single state. Indeed, it is noteworthy that Appellants do not ask us to invalidate § 3704(a)(2), the Nevada grandfathering provision that supposedly creates the equal sovereignty problem. Instead, we are asked to strike down § 3702, PASPA’s general prohibition on state-licensed sports gambling. Appellants do not explain why, if PASPA’s preferential treatment of Nevada violates the equal-sovereignty doctrine, the solution is not to strike down only that exemption. The remedy New Jersey seeks — a complete invalidation of PASPA — does far more violence to the statute, and would be a particularly odd result given the law’s purpose of curtailing state-licensed gambling on sports. That New Jersey seeks Nevada’s preferential treatment, and not a complete ban on the preferences, undermines Appellants’ invocation of the equal sovereignty doctrine.
2. Grandfathering Clause
Cases Appellants also argue that PAS-PA’s exemption for Nevada is invalid under the Supreme Court’s analysis in City of New Orleans v. Dukes,
Two cases upholding economic ordinances aimed at private parties have little to say about state sovereignty. While Appellants contend that Dukes and Clover Leaf Creamery support their position be
Appellants note that there is no case where a court has “permitted a grandfathering rationale to serve as a justification for violating the fundamental principle of equal sovereignty.” N. J. Br. at 59. But it is not hard to see why this is the ease: only two Supreme Court cases in modern times have applied the equal sovereignty principle.
V. CONCLUSION
If baseball is a game of inches, constitutional adjudication may be described as a matter of degrees. The questions we have addressed are in many ways sui generis. Neither the standing nor the merits issues we have tackled permit an easy solution by resorting to a controlling case that provides a definitive “Eureka!” moment. Our role thus is to distill an answer from precedent and the principles embodied therein. But we are confident that our adjudication of this dispute and our resolution of its merits leave us well within the strict bounds set forth by the Constitution and preserves intact the state-federal balance of power.
Having examined the difficult legal issues raised by the parties, we hold that nothing in PASPA violates the U.S. Constitution. The law neither exceeds Congress’ enumerated powers nor violates any principle of federalism implicit in the Tenth Amendment or anywhere else in our Constitutional structure. The heart of Appellants’ constitutional attack on PASPA is their reliance on two doctrines that — while of undeniable importance — have each only been used to strike down notably intrusive and, indeed, extraordinary federal laws. Extending these principles as Appellants propose would result in significant changes to the day-to-day operation of the Supremacy Clause in our constitutional structure. Moreover, we see much daylight between the exceedingly intrusive statutes invalidated in the anti-commandeering cases and PASPA’s much more straightforward mechanism of stopping the states from lending their imprimatur to gambling on sports.
New Jersey and any other state that may wish to legalize gambling on sports within their borders are not left without redress. Just as PASPA once gave New
The District Court’s judgment is AFFIRMED.
Notes
. The United States notes there may be questions as to whether the District Court’s injunction is an appealable final order because it does not specify what steps the State must undertake to comply with the injunction, but we conclude that the injunction is an appeal-able final order because the merits opinion describes what the State must do—refrain from licensing sports gambling. See NCAA II,
. More fundamentally, it is clear to us that gambling and matсh-fixing scandals tend to tarnish the Leagues' reputations. Media reports to that effect abound. To take but one, after the Tim Donaghy NBA gambling and game-fixing scandal, commentators noted that "the integrity of the [NBA’s] games just took a major hit.” J.A. Adande, Ref investigation only adds to bad perception of NBA, ESPN.com, July 19, 2007, http://sports.espn. go.com/nba/columns/story?id=2943704. It is simply untenable to hold that the Leagues have not identified a trifle of reputational harm from an increase in even legal of licensed sports gambling.
. Appellants rely almost exclusively on Simon v. Eastern Kentucky Welfare Rights Organization,
. We note, however, the legal difference between paying fees to participate in fantasy leagues and single-game wagering as contemplated by the Sports Wagering Law. See Humphrey v. Viacom, Inc., No. 06-2768(DMC),
. We also note that, although the United States’ intervention does not always give us jurisdiction, a court may treat intervention as a separate suit over which it has jurisdiction, if the intervenor has standing, particularly when the intervenor enters the proceedings at an early stage. See, e.g., Disability Advocates, Inc. v. New York Coal. For Assisted Living, Inc.,
. We review de novo a determination regarding PASPA's constitutionality, Gov't of V.I. v. Steven,
. But see Federal Baseball Club of Balt. v. Nat'l League of Prof'l Baseball Clubs,
. Moreover, if PASPA reaching activities that are purely intrastate in nature were constitutionally problematic, we would construe its language as not reaching such acts. After all, "[t]he cardinal principle of statutory construction is to save and not to destroy.... [A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act.” Jones & Laughlin Steel,
. This straightforward operation of the Supremacy Clause, which operates on states laws that are foreclosed by a stand-alone federal provision, is not to be confused with field preemption of sports wagering, a topic we discuss at part IV.B.2.d below.
. Three other cases complete the constellation of the Supreme Court’s modern anti-commandeering jurisprudence but deal with the applicability of federal labor laws to certain State employees. See Nat’l League of Cities,
. As the Leagues note, numerous federal laws are framed to prohibit States from enacting or enforcing laws contrary to federal standards, and these regulations all enjoy different preemptive qualities. See, e.g., Farina v. Nokia,
. The circuits that have considered anti-commandeering challenges, although addressing laws that are fundamentally different from PASPA, have similarly found this distinction significant. See, e.g., Connecticut v. Physicians Health Servs. of Conn.,
. Appellants also rely on Coyle v. Smith, where the Supreme Court struck down a law requiring Oklahoma to not change the location of its capital within seven years of its admission into the Union,
. And, arguably, the Supreme Court’s Tenth Amendment jurisprudence cautions against drawing lines between activities that are “traditional” to state government and those that are not. See Garcia,
. The parties spar over how the accountability concerns of anti-commandeering cases weigh here. But New York and Printz make clear that they are not implicated when Congress does not enlist the States in the implementation of a federal regulatory program. To strike down any law that may cause confusion as to whether a prohibition comes from the federal government or from a State’s choice, before considering whether that law actually commandeers the States, is to put the cart before the horse. Indeed, the Supreme Court in Reno rejected the notion that simply raising the specter of accountability problems is enough to find an anti-commandeering violation. See
. New Jersey asks that we ignore this argument because it was not raised by the United States below. But it is axiomatic that we may affirm on any ground apparent on the record, particularly when considering de novo the constitutionally of a Congressional enactment. The United States may decide not to advance particular arguments, but we may not, consistent with our duty to "save and not to destroy,” Jones & Laughlin Steel,
. Appellants point to a statement in the Senate Report wherein the Committee notes that, according to the Congressional Budget Office, there would be "no cost to the federal government ... from enactment of this bill,” Senate Report at 3561, as proof that PASPA seeks to foist upon the states the responsibility for banning sports wagering. But this statement is taken out of context. The import of it was that PASPA would require no "direct spending or receipts” of funds, id, but the Senate Report itself makes clear that the Justice Department would use already-earmarked funds to permit it to "enforce the law without utilizing criminal prosecutions of State officials,” id. at 3557. For a report issued well before the opinions in New York and Printz delineated the contours of modern anti-commandeering jurisprudence, the Senate Report is remarkably clear in that it seeks to increase the federal government's role in policing sports wagering, not pass that obligation along to the states.
. Nor does our decision in Delaware River Basin Commission v. Bucks County Water & Sewer Authority support the notion that permanent grandfathering clauses are invalid, given that in that case we simply remanded for development of a record as to why the law at issue contained a grandfathering provision.
. Appellants also rely on the so-called "equal footing” principle, the notion that Congress may not burden a new state's entry into the Union by disfavoring them over other states in support of their attack on Nevada's exemption. See, e.g., Escanaba & Lake Mich. Transp. v. Chicago,
Concurrence Opinion
concurring in part and dissenting in part.
I agree with my colleagues that the Leagues have standing to challenge New Jersey’s Sports Wagering Law, N.J. Stat. Ann. § 5:12A-2, and that the Professional and Amateur Sports Protection Act (“PAS-PA”), 28 U.S.C. :§ 3702, does not violate the principle of “equal sovereignty.” I therefore join parts III and IV.C of the majority’s decision in full. I also agree that, ordinarily, Congress has the authority to regulate gambling pursuant to the Commerce Clause, and thus I join part IV.A of the majority opinion as well. Yet, PASPA is no ordinary federal statute that directly regulates interstate commercе or activities substantially affecting such commerce. Instead, PASPA prohibits states from authorizing sports gambling and thereby directs how states must treat such activity. Indeed, according to my colleagues, PASPA essentially gives the states the choice of allowing totally unregulated betting on sporting events or prohibiting all such gambling. Because this congressional directive violates the principles of federalism as articulated by the Supreme Court in New York v. United States,
I.
I agree with my colleagues that an appropriate starting point for addressing Appellants’ claims is Hodel v. Virginia Surface Mining & Reclamation Ass’n,
[i]f a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Thus, there can be no suggestionthat the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.
Id. at 288,
As the majority points out, a year later, in FERC v. Mississippi,
PURPA should not be invalid simply because, out of deference to state authority, Congress adopted a less intrusive scheme and allowed the States to continue regulating in the area on the condition that they consider the suggested federal standards. While the condition here is affirmative in nature — that is, it directs the States to entertain proposals — nothing in this Court’s cases suggests that the nature of the condition makes it a constitutionally improper one. There is nothing in PURPA “directly compelling” the States to enact a legislative program. In short, because the two challenged Titles simply condition continued state involvement in a pre-empti-ble area on the consideration of federal proposals, they do not threaten the States’ “separate and independent existence,” Lane County v. Oregon, [74 U.S. 71 ]7 Wall. 71 , 76,19 L.Ed. 101 (1869); Coyle v. Oklahoma,221 U.S. 559 , 580,31 S.Ct. 688 , 695,55 L.Ed. 853 (1911), and do not impair the ability of the States “to function effectively in a federal system.” Fry v. United States, 421 U.S. [542], at 547, n. 7, 95 S.Ct. [1792], at 1795, n. 7 [44 L.Ed.2d 363 (1975) ]; National League of Cities v. Usery, 426 U.S. [833], at 852, 96 S.Ct. [2465], at 2474 [49 L.Ed.2d 245 (1976) ]. To the contrary, they offer the States a vehicle for remaining active in an area of overriding concern.
Id. at 765-66,
Subsequently, the Supreme Court struck down provisions in two cases based on violations of federalism principles. At issue in the first case, New York, was a federal statute that intended to incentivize “States to provide for the disposal of low level radioactive waste generated within their borders.” New York,
The Court in New York held the “take title” provision unconstitutional because it “ ‘commandeer[ed] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program’ ” in violation of the princi-
Second, in Pnntz, the Court reviewed a temporary federal statutory provision that required certain state law enforcement officers to conduct background checks on potential handgun purchasers as part of a federal regulatory scheme. Printz,
Later, in Reno v. Condon,
The DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases. It does not require the South Carolina Legislаture to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.
Id. at 151,
Most recently, in National Federation of Independent Business v. Sebelius, — U.S.-,
While Chief Justice Roberts’ opinion concerning the Medicaid expansion provisions in Sebelius garnered the signatures of only three justices, the four dissenting justices also invoked the federalism principles of New York in concluding that the funding conditions in the Medicaid expansion impermissibly compelled states to govern as directed by Congress by coercing states’ participation in the expanded program. Id. at 2660-62 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). Thus, seven justices found the Medicaid expansion unconstitutional, citing the federalism principles articulated in New York as part of the basis for their conclusion. Importantly, the seven-justice rejection of the Medicaid expansion based, in part, on New York, represents a clear signal from the Court that the principles enunciated in New York are not limited to a narrow class of cases in which Congress specifically directs a state legislature to affirmatively enact legislation. Cf. United States v. Richardson,
II.
New York and PHntz clearly established that the federal government cannot direct state legislatures to enact legislation and state officials to implement federal policy. It is true that the two particular statutes
even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.
New York,
If the objective of the federal government is to require states to regulate in a manner that effectuates federal policy, any distinction between a federal directive that commands states to take affirmative action and one that prohibits states from exercising their sovereignty is illusory. Whether stated as a command to engage in specific action or as a prohibition against specific action, the federal government’s interference with a state’s sovereign autonomy is the same. Moreover, the recognition of such a distinction is untenable, as affirmative commands to engage in certain conduct can be rephrased as a prohibition against not engaging in that conduct. Surely the structure of Our Federalism does not turn on the phraseology used by Congress in commanding the states how to regulate. An interpretation of federalism principles that permits congressional negative commands to state governments will eviscerate the constitutional lines drawn in New York and Printz that recognized the limit to Congress’s power to compel state instrumentalities to carry out federal policy-
In addition, PASPA implicates the political accountability concerns voiced by the Supreme Court in New York and Printz. In New York, the Court observed that when the federal government preempts an area with a federal law to impose its view on an issue, it “makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New York,
I do not suggest that the federal government may not prohibit certain actions by state governments — indeed it can. If Congress identifies a problem that falls within its realm of authority, it may provide a federal solution directly itself or properly incentivize states to regulate or comply with federal standards. For example, if Congress chooses to regulate (or deregulate) directly, it may require states to refrain from enacting their own regulations that, in Congress’s judgment, would thwart its policy objectives. Illustrating this point, the Supreme Court held in Morales v. Trans World Airlines, Inc., 504 U.S. 374,
Moreover, contrary to the majority opinion’s suggestion, other federal statutes relating to sports gambling do not aggregate to form the foundation of a federal regulatory scheme that can be interpreted as рreempting state regulation of sports gambling. First, Section 1084 of Title 18 of the United States Code makes it a federal crime to use wire communications to transmit sports bets in interstate commerce unless the transmission is from and to a state where sports betting is legal. See 18 U.S.C. § 1084(a)-(b). Thus, under that section, state law, rather than federal law, determines whether the specified conduct falls within the criminal statute.
In addition to preempting state regulation with federal regulation, in some circumstances, Congress may regulate states directly as part of a gеnerally applicable law. See, e.g., New York,
Nor does Reno stand more generally for the proposition that a violation of “anti-commandeering” federalism principles occurs only when Congress requires affirmative activity by state governments. It is true that in upholding the DPPA, the Court noted that it “d[id] not require the South Carolina Legislature to enact any laws or regulations, and it d[id] not require state officials to assist in the enforcement of federal statutes regulating private individuals.” Reno,
Second, the Court explained in Reno that, “[t]he DPPA regulates the States as owners of data bases” of personal information in motor vehicle records. Reno,
The direct federal regulation of interstate commerce under the DPPA obviously distinguishes Reno from New York and Printz, where the federal statutes at issue in those cases required states to enact legislation and enforce federal policy, respectively. But it also distinguishes Reno from this case. As the Court recognized, “[t]he DPPA established] a regulatory scheme.” Reno,
Hodel and FERC also provide no support for upholding PASPA. In Hodel, the statute at issue permitted states to submit a state regulatory plan for federal approval if they wished to regulate surface coal mining; if states did not seek or obtain approval, then a federal enforcement program would take effect. Hodel,
In addition, in upholding Titles I and III of PURPA in FERC, the Court focused on the fact that those titles merely required that states “consider the suggested federal standards” as a condition to continued state regulation. FERC,
Finally, as recognized by the majority, our decision in Office of the Commissioner of Baseball v. Markell,
In sum, no case law supports permitting Congress to achieve federal policy objectives by dictating how states regulate sports gambling. Instead of directly regulating state activities or interstate commerce, PASPA “seek[s] to control or influence the manner in which States regulate private parties,” a distinction the Supreme Court has recognized as significant. See Reno,
Moreover, no legal principle exists for finding a distinction between the federal government compelling state governments to exercise them sovereignty to enact or enforce laws on the one hand, and restricting state governments from exercising their sovereignty to enact or enforce laws on the other. In both scenarios the federal government is regulating how states regulate. If Congress identifies a problem involving or affecting interstate commerce and wishes to provide a policy solution, it may regulate the commercial activity itself, see New York,
. The majority also characterizes Baker as "remarkably similar” to PASPA’s prohibition of state action. (Maj. Op. at 223-24.)
. In Baker, the Court observed:
The [intervenor] nonetheless contends that § 310 has commandeered the state legislative and administrative process because many state legislatures had to amend a substantial number of statutes in order to issue bonds in registered form and because state officials had to devote substantial effort to determine how best to implement a registered bond system. Such "commandeering” is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.
Baker,
. I agree with my colleagues that Congress has the authority under the Commerce Clause to ban gambling on sporting events, and that such a ban could include state-licensed gambling. I part company with my colleagues because that is not what PASPA does. Instead, PASPA conscripts the states as foot soldiers to implement a congressional policy choice that wagering on sporting events should be prohibited to the greatest extent practicable. Contrary to the majority’s view, the Supremacy Clause simply does not give Congress the power to .tell the states what they can and cannot do in the absence of a validly-enacted federal regulatory or deregu-latory scheme. As explained at pages 13-14, infra, there is no federal regulatory or deregu-latory scheme on the matter of sports wagering. Instead, there is the congressional directive that states not allow it.
. Significantly, the majority opinion does not cite any case that sustained a federal statute that purported to regulate the states under the Commerce Clause where there was no underlying federal scheme of regulation or deregulation. In this sense, PASPA stands alone in telling the states that they may not regulate an aspect of interstate commerce that Congress believes should be prohibited.
. The majority reasons that PASPA does not commandeer the states in battling sports gambling because the states retain the choice of repealing their laws outlawing such activity, observing that PASPA does not “require [] that the states keep any law in place.” (Maj. Op. at 232.) Contrary to the majority's supposition, it certainly is open to debate whether a state's repeal of a ban on sports gambling would be akin to that state's "authorizing” gambling on sporting events, action that PAS-PA explicitly forecloses.
. Accordingly, if a state repealed an existing ban on wagering on sporting events, federal law would not be implicated.
. PASPA only extends its prohibition to private persons to the extent persons "sponsor, operate, advertise, or promote [sports gambling] pursuant to the law or compact of a governmental entity.” 28 U.S.C. § 3702(2). Because the federal statute applies only to persons who act pursuant to state law, it cannot be said to directly .regulate persons.
. According to the majority, a state would presumably not run afoul of PASPA if it merely refused to prohibit sports gambling. The resulting unregulated market, however, portends grave consequences for which state officials would be held accountable, even though it would be federal policy that prohibits the states from taking effective measures to regulate and police this activity. In this sense, PASPA is indeed coercive.
. The majority asserts that the two "choices” presented to a state by PASPA — to "repeal its sports wagering ban [or] to keep a complete ban on sports wagering” — “leave much room for the states to make their own policy.” (Maj. Op. at 233.) Even if the majority's reading of PASPA as affording these choices is correct, I fail to discern the "room” that is accorded the states to make their own policy on sports wagering. It seems to me that the only choice is to allow for completely unregulated sports wagering (a result that Congress certainly did not intend to foster), or to ban sports wagering completely.