*1 Sо, Jersey Thoroughbred clear: it’s New Horsemen’s was “No. judge’s response $20,000.00. Inc.; the sanction. That’s Association, Stephen That’s M. Swee- bankruptcy at 161. The (Intervenors it.” Appendix ney; Y. Oliver Sheila avenues for sanctions judge rejected other Court) District indeed, and, citation to him his available 105(a) subsequent in his order 11 U.S.C. Sweeney Stephen M. Sheila of other vehicles knowledge evinces Oliver, Appellants. Y. I also note imposing sanctions. explore failed themselves Collegiate National Athletic Associa through other means. request sanctions tion, association; unincorporated an however, this, colleagues my Contrary to Association, National Basketball perilously and come remand order the venture; joint National Football that sanc- position expressing close to League, unincorporated an associa under different tions be awarded should tion; Hockey League, National an un when, statutes, my reading, the bank- incorporated association; of Office already rejected those ave- judge ruptcy Baseball, un the Commissioner of an assumption no other I can make nues. incorporated doing association busi my than believe some other colleagues Baseball; Major League ness as Unit type required are here. That of sanctions (Intervenor ed States Of America however, call nor is issue our Court) I affirm the District us. would the District before aspects. in all v. Jersey; Governor of State New Rebuck, David L. Director of the New Jersey Gaming Division of Enforce Attorney ment and Assistant General ATHLETIC NATIONAL COLLEGIATE Jersey; Frank of the State New ASSOCIATION, unincorporated as- an Zanzuccki, Executive Director of the sociation; Asso- National Basketball Jersey Racing New Commission New joint venture; ciation, National Jersey Thoroughbred Horsemen’s As unincorporated League, Football an Inc.; Sweeney; sociation, Stephen M. Hockey association; League, National (Intervenors Y. Sheila Oliver Dis association; unincorporated an Office Court) trict Baseball, an Commissioner unincorporated doing association Jersey Thoroughbred Horsemen’s League Baseball; Major business as Association, Inc., Appellant. (Intervenor United States of America Court) in the District Collegiate National Athletic Associa- tion, association; unincorporated an
GOVERNOR OF the State of NEW Association, National Basketball JERSEY; Rebuck, Director David L. venture; joint National Football Jersey Gaming Division of the New League, unincorporated an associa- Attorney Assistant Enforcement tion; Hockey League, an un- Natiоnal Jersey; General of the of New State association; incorporated Office Zanzuccki, Director Frank Executive Baseball, un- the Commissioner of Jersey Racing of the New Commission *2 incorporated doing association busi Major League Baseball;
ness Unit (Intervenor
ed States of America Court)
the District Jersey;
Governor of the State New Rebuck,
David L. Director New
Jersey Gaming Division of Enforce Attorney
ment Assistant General Jersey; State of New Frank
Zanzuccki, Executive Director of the Jersey Racing Commission New
Jersey Thoroughbred Horsemen’s As
sociation, Inc.; Stephen Sweeney; M. (Intervenors Y. Oliver
Sheila Dis Court)
trict Jersey;
Governor of the of New State
David L. Rebuck and Frank
Zanzuccki, Appellants. 13-1714,
Nos. 13-1715. Appeals,
United States
Third Circuit.
Argued: June
Opinion Filed: Sept. *6 Olson, [Argued], B. Mat- Esq.,
Theodore McGill, Johnson, Esq., E. Ashley thew D. FUENTES, FISHER, and Johnson, Esq., Before: Gibson E. Robert Esq., DC, LLP, VANASKIE, Crutcher, Washington, Judges. Circuit Dunn & Hoffman, S. Esq., Christopher John J. Feinblatt, Esq., M.
Porrino, Esq., Stuart THE COURT OPINION OF Slocum, the Attor- Esq., Office of Peter M. FUENTES, Judge: Circuit Jersey, of New the State ney General Trenton, NJ, Appellants Governor for activity that has sports is an Betting Rebuck, David L. Jersey, New the State of popularity over unarguably increased Jersey Division of New Director Seeking to ad- several decades. the last Enforcement, Frank Zan- Gaming illegal sports wagering dress instances of Director of the New Jer- zuccki, Executive improve its econ- its borders and to within sey Racing Commission. Jersey sought has omy, the State of New [Argued], Griffinger, Esq., R. Michael professional to license on certain Hradil, Valen, A. Esq., Jennifer R. Thomas conglom- A sporting and amateur events. P.C., Newark, NJ, for Inter- Esq., Gibbons at the sports leagues, displeased erate of Sweeney and Sheila Oli- Stephen venors gambling on prospect of State-licensed ver. contests, sued to halt their athletic [Argued], Eliot Riccio, Esq., Ronald J. contend, alongside the They these efforts. Deutsch, Mulva- Berman, McElory, Esq., intervening plaintiff, United States Morristown, NJ, LLP, & ney Carpenter law violates a fed- Jersey’s proposed New Jersey Thoroughbred New for Intervenor most states from prohibits eral law that Association, Inc. Horsemen’s licensing sports gambling, the Professional Clement, [Argued], Cand- Esq., Paul D. Act of Sports and Amateur Protection Levi, Esq., Erin Chiu, R. Esq., ice William seq. et (PASPA), 28 U.S.C. PLLC, Wash- Murphy, Esq., E. Bancroft wagering In defense of its own O’Shaughnessy, DC, ington, J. William law, Jersey leagues that the New counters Hernandez, Esq., McCarter Esq., Richard standing bring lack this case because NJ, Newark, Jeffrey A. LLP, English & injury no from the le- they suffer State’s Slate, Mishkin, Skadden, Arps, Esq., wagering on the outcomes of galization York, NY, LLP, New Meagher & Flom addition, alongside cer- games. Athletic As- Appellees Collegiate National defendants, Association, Jersey *7 sociation, intervening tain Basketball National Congress’ National Hock- League, argues beyond National Football that PASPA is the Commissioner ey League, of and Office and powers Clause enact Commerce League Baseball. Major of Baseball principles important d/b/a that it violates two system our of dual state and that underlie Fishman, Esq., [Arguеd], Office Paul J. sovereignty: one known as the Newark, Attorney, of the United States “anti-commandeering” doctrine, on the McIntosh, NJ, Esq., Peter Scott Phipps, J. Justice, impermissibly prohib- ground PASPA Esq., of Department United States DC, enacting legislation Intervenor United its the states from Washington, for States of America. known sports gambling; license the other in “equal sovereignty” principle, as the Lin, Dodrill, Esq., Elbert Christopher S. permits Nevada to license PASPA Virginia, Esq., of West Attorney General banning widespread sports gambling while Charleston, WV, Amici Curiae States for doing so. The District other states from Kansas, of and and Virginia, Georgia, West conten- disagreed with each of these Court in Virginia Support Commonwealth tions, summary judgment to the granted and Reversal. leagues, enjoined Jersey New I. LEGAL FRAMEWORK licensing betting. sports on Wagering sporting is an events activ- ity as our society almost in inscribed leagues appeal, On conclude that the we in participating watching standing Article III to enforce PAS- have themselves. New tells Jersey us that and that is constitutional. As PA sports betting in the United States —most clear, accepting Jersey’s bewill made New illegal billion dollar per $500 —is arguments require on the merits would us year industry. And involving scandals extraordinary steps, to take several includ- rigging sporting contests the interest ing: invalidating the first our for time in winning wager games are as as the old a law jurisprudence Circuit’s under themselves: Black infamous Sox scan- anti-commandeering principle, a move Series, dal of Major World even United States (“MLB”) League Baseball’s lifetime ban on made; only twice expanding principle all-time hits leader for allegedly Pete Rose suspend commonplace operations games on wagering played he come to Supremacy over state con- activity Clause mind. And the recent prosecution of Tim laws; trary to federal and making it hard- Donaghy, a National Basketball Associa- enact pursuant er laws (“NBA”) tion bet games referee who on if the Commerce such officiated, Clause laws affect problems he reminds us of differently than some others. from gambling. stem However, despite pervasiveness, its few cognizant We are questions certain states have ever gambling licensed on to this related case—whether sporting began events. Nevada alone per- sporting games’ events is harmful to the mitting widespread betting sporting integrity and whether states should be just events in 1949 and three other permitted profit license from the Delaware, Oregon, and Montana— states — activity engender strong But we views. — permitted have on types occasion limited judge are asked to the wisdom of of lotteriеs tied to the of sporting outcome law, Jersey’s PASPA or of or of events, single-game betting. but never desirability of the activities seek to forms, Sports wagering in particularly all regulate. only speak legality We wagering, State-licensed is and has been matter of these measures as a constitution See, illegal 18 Pa. e.g., elsewhere. Cons. Although al law. this “case diffi is made 5513; § Stat. Ann. Ann. tit. Del.Code [Appellants’] strong arguments” cult seq. Congress up took et Jersey’s support of New a policy law as eventually enacted PASPA 1992 in re- matter, Raich, see Gonzales sponse to increased efforts states to (2005), 9, 125 2195, 162 L.Ed.2d 1 our begin licensing practice. is,” duty is to *8 “say Marbury what law A. The Professional Amateur and Madison, 137, 177, 1 Cranch Sports Protection of 1992 Act (1803).
2 L.Ed. “If two conflict laws other, each courts with must decide on key applies provision PASPA’s for the operation Jersey’s of each.” Id. New identically “per- most part to “States” and sports wagering sons,” conflicts with PASPA may law providing neither and, Constitution, under our yield. must advertise, sponsor, operate, promote or will affirm judg We the District Court’s lottery, ... or other sweepstakes, bet- ting, ment. or gambling, wagering scheme “prohibit gambling to conducted (through sports is directly indirectly or based of, or other- any references under law geographical by, use of or authorized wise), games competitive on more one or governmental entity” “stop or and to State professional ath- in which amateur gam- spread State-sponsored sports par- or are intended participate, letes bling.” Rep. reprinted Sen. performances or more ticipate, or on one (“Senate in 1992 U.S.C.C.A.N. games. of such athletes such specifically Report”). Report The Senate prohibition pri- § The 28 U.S.C. 3702. legislators’ “State-spon- notes concern with activity such any vate is limited persons gam- and sored” “State-sanctioned” compact to the law or “pursuant conducted bling. Id. at 3555. 3702(2), entity,” § governmental id. Report catalogues The Senate what the subject an addition- the states are while Committee believed were some ] al restriction: not “license! problems arising gambling. from sports by compact” authorize law or such Importantly, noted its con- the Committee 3702(1), activities, §§ 3701. id. of, for confi- integrity public cern “the and excep- three PASPA contains relevant in, sports” professional dence amateur and “grandfathering” that re- tions—a clause legali- its that “[widespread and concern grip, see id. leases Nevada from PASPA’s sports gambling inevitably zation of would 3704(a)(2), § that permitted a clause promote suspicion about controversial Jersey sports wagering in Atlan- license plays and fans to think fix was in’ lead ‘the City tic within had it chosen do so one whenever their team failed to beat enactment, year of see id. PASPA’s point-spread.” Id. at 3556. The Senate 3704(a)(3), provi- § a grandfathering and Report also its concurrence with stated Delaware permitting sion states like and Jersey’s then-director of New Division of lot- Oregon “sports to continue the limited Gaming Enforcement’s statement conducted, that they previously teries” had professionals agree law “most enforcement 3704(a)(1). § PASPA provides see id. legalization on, a negligible impact private enjoin action a viola- right of “to enhances, mar- ways illegal some Attorney tion ... Gen- [of law] kets.” Id. at 3558. This is so because sports organization eral or a ... “many new gamblers inevitably will ... game alleged to competitive
whose beyond ... seek to move lotteries wa- the basis of violation.” Id. such gers higher stakes more serious Only Appeals one Court of has decided a consequences.” Id. case under PASPA —ours. Office Report explains The Senate also Commissioner v. Markell we Baseball “[s]ports gam- conclusion permit held that did not Committee’s Delaware bling problem” to license is a single-game betting “[t]he because the national because grandfathering provision relevant for De- produces moral cannot be limit- erosion permitted only laware consisting lotteries given geographically” ed the thousands multi-game teams. 579 parlays NFL professional who earn a livelihood from (3d Cir.2009). F.3d This is sports and the millions are fans of who addressing first case constitu- PASPA’s them, legalizes “[o]nce because State tionality. extremely sports gambling, it will be diffi- cult for other States resist the lure.” sparse legislative history Act’s Finally, that PASPA *9 exempts Nevada because the Committee Report Judiciary The the Com- Senate mittee purpose clear that did wish to “threaten econ- [Nevada’s] makes PASPA’s (the omy,” or of the three other states that had Director of Gaming Enforcement past to enact limited forms of chosen Jersey”), or “New “State” under 28 U.S.C. sports gambling. Id. at 3559. § asserting Sports that the Wager- ing by Law is invalidated PASPA. The Jersey Sports Gambling B. in New Jersey Majority New Senate Leader Ste- PASPA Was Enacted Since phen Sweeney Speaker and House Sheila Although in its Jersey New discretion defendants, Oliver intervened as alongside not to exemp- chose avail itself of PASPA’s Jersey Thoroughbred the New Horse- window, one-year tion within the “[o]ver Association, men’s owner of the Mon- the course the next two decades ... Racetrack, mouth Park a business where Jersey views New voters regarding sports gambling would occur under the sports wagering evolved.” Br. of Appel- (the “NJTHA”) (col- Sports Wagering Law Sweeney, lants et al. 4. In the New lectively, “Appellants”). Legislature Jersey public held hearings The State moved to dismiss for lack of which during testimony it heard that regu- standing and the District Court ordered sports gambling generate lated would expedited discovery that question. Af- much-needed revenues for the State’s casi- the completion discovery ter and oral racetracks, during leg- nos and and which arguments, the District Court concluded expressed islators a desire to “to stanch Leagues standing. have Nat’l sports-wagering black market flourish- Christie, Collegiate v. Athletic Ass’n No. Jersey’s] within [New borders.” Br. of (D.N.J. (“N.J.Br.”). Christie, WL 6698684 Dec. et al. 2012) (“NCAA I”). Legislature ultimately The decided to hold referendum which would result constitutionality With the of PASPA amendment Constitution State’s issue, squarely then the District Court permitting Legislature to “authorize invited the pur- United States intervene by wagering ... law on the results of § suant to 28 U.S.C. The District professional, college, sport or amateur ultimately upheld PASPA’s constitu- IV, event.” athletic N.J. Const. Art. tionality, granted summary judgment ¶ (F). VII, 2(D), § The measure was ap- Leagues, enjoined Sports Wa- voters, proved Legislature gering Law from going into effect. Nat’l later enacted law that now asserted Collegiate Christie, Athletic Ass’n “Sports to be in violation of PASPA —the (D.N.J.2013) (“NCAA II”). F.Supp.2d 551 Law,” Wagering permits State au- expedited appeal This followed. sports gambling thorities license in casi- operate nos and racetracks and casinos III. WHETHER JURISDICTION: “sports pools.” seq.; N.J.S.A. 5:12A-1 et THE LEAGUES HAVE § seq. see also N.J.A.C. et (reg- 13:69N-1.1 STANDING law). implementing ulations subject-matter The had District Court II. PROCEDURAL HISTORY § jurisdiction pursuant to 28 U.S.C. jurisdiction we appellate have over its NBA, MLB, Collegiate the National judgment juris- final under 1291. Our (“NCAA”), Athletic Association the Na- diction, however, is limited the Consti- (“NFL”), League tional Football and the tution’s “cases” and “controversies” re- (collec- (“NHL”) Hockey National League CONST., Ill, § art. quirement. U.S. 2. To tively, “Leagues”), Jersey sued New satisfy limitation, Christie, jurisdictional this Jersey’s Governor Chris Commissioner, Racing Jersey’s party invoking authority and New federal court *10 appellate jurisdiction that he or we had un she whether
must demonstrate 1292(a). case.1 standing bring the der 28 U.S.C. See id. We did explicitly standing, consider Article III they standing have Leagues argue The “drive-by jurisdictional ruling, and a subject are the of games their own because jurisdiction by which has been assumed They Law. also con- Wagering Sports ... parties binding does not create increase total the law will tend that Stoerr, available, precedent.” v. United States of amount (3d Cir.2012) (internal F.3d 277 n. 5 public’s perception thereby souring omitted). suspect games quotation as Leagues people marks and alterations by perhaps individuals Therefore, are affected rely we will not on Markell for monetary stake in their hidden competing analysis. our standing Appellants counter outcome. Standing Generally B. Law concrete, non-spec- cannot
Leagues show any potential injury from increase ulative test, three-part the familiar Under in legal gambling. standing, must plaintiff establish show (1) fact,” i.e., “injury an an actual or granted The District Court sum imminently injury threatened is “con Leagues, reasoning mary judgment to plaintiff; particularized” crete and to the supports holding that Markell that the (2) causation, i.e., standing, reputa traceability injury have and that Leagues injury legally cognizable defendant; (3) is harm tional to the actions of the standing. It may confer also found redressability the injury by a favorable facts the record sufficient to conclude by the decision Court. Summers Earth Sports Wagering Law will result that the Inst., 488, 493, Island negative perceptions in an increase in fans’ (2009). 1142, 173 L.Ed.2d Leagues. review de novo the We redressability Causation legal Leagues conclusion have may party be met when “a chal standing, and we review clear error lenge^] government permits action that underlying findings factual the District third-party authorizes conduct would TDI Court’s determination. Marion v. illegal be otherwise in the absence of the (3d Cir.2010). Inc., 137, 146 591 F.3d Government’s action.” Nat’l Wrestling Educ., A. The Effect Markell Dep’t Coaches Ass’n v. F.3d (D.C.Cir.2004). Here, 940-41 Markell, case, this like was a law Leagues enjoin do not purport third stop a Leagues suit state from parties games. from to fix attempting licensing betting on out single-game Leagues have sued to block the sporting come of events. Markell we Sports Law, Wagering assert analysis], always, “beg[a]n by con [our taint upon games, will result in a jurisdiction sidering we ha[d] whether is a law that definition constitutes state appeal,” hear and later concluded [the] action to license conduct that would not jurisdiction. that we did have 579 F.3d at But, contrary to otherwise occur. Leagues’ reasoning Under analysis Coaches, suggestion, Wrestling our was limited to National causation ques- injunction appeal- 1. The United States notes there we that the conclude opinion as to the District tions whether Court’s in- able final order because the merits junction an appealable final order what because describes State must do—refrain II, specify steps licensing sports gambling. does not what the State must See NCAA comply injunction, F.Supp.2d undertake to with the but at 579.
219
satisfied,
however,
read,
redressability
Fairly
Sports
are thus
the
Wager
directly
at
Law does not
arguments implicitly
all
aimed
those
the
Leagues,
regulates
but instead
the activi
suspect.
are
prongs
two
may
ties that
occur at the State’s casinos
focus on
in
Accordingly, we
the
and racetracks.
thus hesitate
We
to con
the
jury-in-fact requirement,
“contours of
may rely
clude that the Leagues
solely on
[which],
defined,
while
precisely
not
are
the existence of the Sports Wagering Law
Wilson,
generous.”
v.
very
Bowman
672
injury.
to show
But
is not
say
that
Cir.1982).
1145,
(3d
Indeed,
1151
F.2d
all
glib
we are
to one of
respect
the main
an
requires
that Article III
is
identifiable
purposes of the law: to use the Leagues’
v. Students
injury,
trifle
United States
games
profit.
for
NFL v. Governor
Cf.
Challenging Regulatory Agency Proce Del.,
1372,
(D.Del.1972)
435 F.Supp.
1378
dures,
14,
412
n.
U.S.
690
J.)
(Stapleton,
(explaining
Delaware’s
(1973),
2405, 37
which may
L.Ed.2d 254
sports lottery
to use
sought
the NFL’s
if
plaintiff
personal
the
a
exist
“has
“schedules,
public popularity”
scores and
in
litigation.”
stake
the outcome
[the]
profits
to “mak[e]
[Delaware] [c]ould
Fisher,
Pitt News v.
215 F.3d
The
NFL”).
make but for the existence of the
(3d Cir.2000);
Lujan
see
v.
also
Defenders
thus,
The Sports Wagering Law is
in a
Wildlife,
n. 112
U.S.
S.Ct.
sense, as much
at
Leagues’
directed
the
(1992)
2130, 119
(noting
L.Ed.2d 351
as it
the
events
is aimed at
casinos. This
satisfy
requirement
the injury-in-fact
generalized
not a
grievance
like those
“injury
plaintiff
the
must
in
affect the
a
asserted
groups
environmental
over
way”).
personal and individual
To meet
regulation of
in
wildlife
cases where the
burden,
Leagues
present
this
must
standing,
Court has found no
way
“in the
evidence
same
[for]
in Lujan
such as
or Summers. The law
[they]
matter on
other
bear[]
here aims to
private
license
individuals to
proof.” Lujan,
burden
U.S.
Leagues’
cultivate the fruits of the
labor.
Leagues’
counter that the
in-
seeing
games subject
terest
Sports Wagering
Whether
C.
Law
wagering
non-cognizable
is a
“claim for
Leagues
Injury
An
Causes the
In
psychic
the loss of
satisfaction.” N.J. Br.
Fact
(citing
Steel Co.
Citizens
a
for
noted,
Leagues
As
offer two inde-
Env’t,
83, 107,
Better
pendent
standing:
bases for
(1998)).
1003,
enforcement of (3d Cir.2007) Moreover, Leagues (concluding attorney do not assert harm, public reputational standing challenge repri- but merely psychic, mand very injury. redressable because the sanction very “affeet[s] [his] real *12 reputation”); Doe v. Nat’l Med. Bd. of argue that Appellants also because the (3d Cir.1999) Exam’rs, F.3d proprietary have a interest Leagues do not (holding standing that a student had games they may their in the of outcomes that challenge requiring a rule be iden- he others profiting from prevent not seek to tified disabled because such could as label This contention relies on the from them. by sour of him who perception “people Delaware, NFL v. Governor holding in of livelihood”). can affect his future and his lottery the out- that a based on Delaware injury games Leagues’ did constitute The claim of identical come of NFL to that property. plaintiffs NFL’s of the Keene and Doe: misappropriation they at 1378-79. But here the are harmed their unwanted associ- F.Supp. (and activity they ation Leagues complain large por- an invasion of with an do interest, any public) disapprove but refer to tions of the proprietary gam- of— bling. dispute do not appropriation legal fact of their labor this Sports Wagering premise, show Law is but attack the strength of the Leagues proffered at them. evidence that the have directed Sports Wagering to tie Law to Injury In Reputational 2. Harm as reputational harm assert. ar- These Fact guments overstate what the Leagues must show to reputational demonstrate harm in The also meet their bur- Leagues and, case, this ignore context injury den a law establishing from strength the proffered evidence. by proving aimed that the games at their activity by that law threatens to sanctioned (b) Sup- In The Evidence the Record amongst cause harm reputational them ports the District Court’s Conclusion their public. fans and the Reputational Harm Will Occur
(a) Reputation Legally Harm Is a sure, at summary To be Cognizable Injury judgment stage, allegations mere of harm are specific insufficient and facts are re law, reputational a matter of
As
quired.
Lujan,
See
504 U.S. at
injury
harm
in fact.
cognizable
is a
plaintiffs
And a
Keene,
claim of fear
so held
Court
Meese v.
reputational
harm must always be
where
that a
who
it concluded
senator
Doe,
“based in reality.”
at 153.
F.3d
produced by
films
a for
wished to screen
But the “nature and extent of
eign
standing
facts
company
challenge
had
must
depends
be averred”
on the nature of
law
of such
requiring
identification
injury. Lujan,
“political
films
asserted
foreign
propaganda”
be
cause
could harm
224
Nations,
foreign
late
with
athletic
seems
Commerce
on their
contests
States,
among the
and with the
conclusion,
several
particu-
straightforward
us a
L,
8,§
Art.
Indian Tribes.” U.S.
Const.,
effect
proven stigmatizing
given the
larly
well-known,
As
NLRB v.
cl. 3.
is
since
contests associated
having sporting
Laughlin
Corporation,
&
Steel
301
Jones
by
is confirmed
com-
link
gambling,
1,
615,
(1937),
U.S.
S.Ct.
L.Ed. 893
Congress’ own conclusions.5
monsense and
the Commerce Clause has been construed
give
lati-
Congress “considerable]
MERITS
THE
IV.
conduct and transac-
regulating
tude
now the merits.
We turn
Morrison, 529
tions.” United States v.
amici’s
at
centerpiece
598, 608,
120 S.Ct.
146 L.Ed.2d
U.S.
it impermissibly
is
tack
(2000).
one,
may
Congress
regu-
For
states. But at least one
commandeers the
“substantially
activity
affects
late
that PASPA is
party
spectre
raises the
if
out
“arise[s]
interstate commerce”
authority under the
beyond Congress’
also
connected with
commercial trans-
[is]
Constitution.
Clause
U.S.
Commerce
Lopez, 514
action.” United States v.
Congress
first
thus examine
whether
We
L.Ed.2d 626
PAS-
even
activities
(1995).
contrast,
By
of non-
regulations
concluding
after
governs. Only
PA
Id.
activity
economic
are
disfavored.
may do so can we consider
(striking
Among
and
ability
“regu-
wager
in
are economic activities. A
is
powers
simply
Article I is
that,
regard-
although the
6. We
de novo a
5. We also
United
review
determination
note
always give
States’
does
us
ing
constitutionality,
intervention
PASPA's
Gov't V.I. v.
jurisdiction,
Steven,
Cir.1998),
intervention
(3d
a court
treat
as
134 F.3d
527
jurisdiction,
separate
a
suit over
it has
begin
presumption
with the “time-honored
standing, particularly
if the
intervenor
Congress]
a
[an
act of
is
constitutional
proceedings
when the
enters
intervenor
Reno,
legislative power.”
exercise of
528
Advocates,
See,
early
e.g., Disability
stage.
(internal quotation
lege sports.”
In-
Report
Senate
at 3557.
its betting
“competitive games”
involv
deed,
Leagues
some of the
sporting
hold
professional
“amateur
athletes.” 28
abroad, affecting
events
commerce with
argument
U.S.C.
3702. This
is merit-
Foreign Nations.
less.
Third,
immediately
that plac-
follows
one,
For
PASPA on
does
its face
ing wagers on sporting events also sub-
Appel-
reach the intrastate
activities
stantially affects interstate
As
commerce.
-
prohibits
lants contend
does. PASPA
indicates,
Jersey
gamble
Americans
only
gambling “schemes” and
those
up
year.
billion
each
$500
“pursuant
carried
compact.”
out
law or
330-31],
[App.
And whatever
gam-
effects
*17
§
28
3702. The
U.S.C.
activities described
bling
sports may
on
games
have on the
in Appellants’ examples are
carried out
themselves,
nor
plainly
those effects will
tran-
law,
pursuant
state
pursuant
or
to “a
state
scend
boundaries and affect a funda-
systemic
mentally
industry. Accordingly,
plan;
orderly
a
ar-
national
connected or
Congressional
rangement
we have deferred to
...
plot,
deter-
artful
[or] [a]n
ball,
7. But see
purely
Federal Baseball Club
Balt. v.
of base
are
exhibitions
of
Clubs,
affairs,”
League
Nat'l
Baseball
concluding
U.S.
259
that baseball is
of Prof'l
200, 208-09,
465,
purposes
42 S.Ct.
66
898
L.Ed.
in interstate commerce
of
(1922)
Act).
(describing
“giving
MLB’s business as
the Sherman Antitrust
(9th
Dictionary
Congress’
under the Com-
beyond
power
Black’s Law
plan.”
“scheme”).
Ed.2009) (defining
Indep.
merce Clause.
Nat’l Fed’n
See
of
—
Sebelius,
U.S.-,
v.
Bus.
S.Ct.
Moreover,
entertaining that
even
(2012).
2566,
But
ple imposed there federal standards for coal mining on required certain surfaces and learns, every “As schoolchild our Consti- any state that perma- wished “assume dual system tution establishes a sover- authority regulatory nent over ... surface eignty between the States the Federal Ashcroft, mining operations” Gregory pro- Government.” 501 coal “submit a 452, 457, U.S. 115 L.Ed.2d posed permanent to the program” Federal (1991). And is well-known that all Government, which, among things, other powers explicitly conferred to the fed- required the legislature “state [to] enact[ ] government eral are reserved to the laws environmental implementing pro- states, a maxim in the text of reflected by tection standards established the [a]ct.” X; Tenth Amendment. amdt. Const., U.S. Hodel, S.Ct. 2352. If Darby, also see United States v. particular imple- state did not wish to 85 L.Ed. standards, ment the federal the federal (1941) (describing this a “truism” em- in to government step would do so. Id. at Amendment). bodied the Tenth noting upheld provisions, nei-
Among
important
corollaries
compelled
adopt
flow
ther
the states to
from the
is that
foregoing
standards,
legislative pro-
required
law
“commandeers the
them
nor
“to
straightforward
provision,
operation
9. This
eral
Su-
is not to be confused with field
Clause,
premacy
operates
wagering,
preemption
topic
we
part
laws
are foreclosed
stand-alone fed-
discuss at
below.
IV.B.2.d
*19
funds,”
the states to enact new measures.
required
them
nor coerced
any state
expend
Baker,
First,
in
v.
regula-
South Carolina
in the federal
“participat[ing]
into
upheld
validity
of laws
Supreme Court
any
in
manner whatsoever.”
tory program
by pro-
“directly regulated
the States
288,
2352. The Court
101 S.Ct.
Id. at
outright
the issuance of bearer
Congress
hibiting
could
further concluded
511,
1355,
505,
108 S.Ct.
preempt
bonds.” 485 U.S.
completely
chosen to
have
(1988).
rules,
These
(b)
Prohibitions on
Permissible
State
require
regulations, and
d[id]
Action: Baker
Reno
in the
officials to assist
enforcement
private individ-
pair
regulating
of anti-commandeer-
federal stаtutes
a different
cases,
666. More-
upheld affirmative
uals.” Id. at
the Court
over,
effectively
the law did not “seek to
prohibitions
control[ ]
on state action
regu-
in which
contrary
and even influence the manner
States
invalidated
state laws
*20
229
Baker,
167, 175,
(citing
Id.
ment
coercion.”
at
private parties.”
from
Id.
112
late
1355).
514-15, 108
at
S.Ct.
S.Ct.
The Court also emphasized
485 U.S.
2408.
anti-commandeering principle
the
was
(c) Impermissible Anti-
designed,
part,
stop Congress
to
from
Commandeering: New
line of
blurring
accountability
the
between
Printz
York and
federal and state officials and from skirt-
foregoing,
responsibility
by
for its choices
foisting
In contrast to the
the Court
168,
them
portions
struck
of a
on the states.
Id. at
120
has twice
down
federal
S.Ct.
The
anti-commandeering grounds.
law on
666.
States,
was in New
v. United
first
York
applied
The
then
principles,
Court
these
dealt
a law meant to
with
Printz,
provisions
to invalidate the
orderly disposal
encourage
of low-
Brady
Act that
local
required
authori-
by
radioactive
level
waste
states.
background
ties of certain
states
run
at
ter. See
(upholding
provision
and Reno
Conduct —Baker
disposal sites
with waste
states
permitting
Additionally, PASPA is remark
non-compliant
to
states
more
charge
ably
prohibitions
similar to
taxing such
to the
states
statute
in
and Reno. Baker’s
upheld
action
Baker
states);
compliant
City
see also
benefit of
regulations prohibited the states from issu
(5th
EPA,
325 F.3d
Abilene v.
bonds,
ing
required
which
turn
bearer
Cir.2003)
long
that as
“the
(explaining
as
regulations
to issue new
and invali
states
regu-
federal
implementing
alternative
ones;
old
Reno’s anti-disclosure
dated
the Consti-
latory program
offend
does
prohibited the states from dis
provisions
federalism,
the fact
guarantees
tution’s
information,
seminating certain
necessitat
difficult, expensive
is
the alternative
expenditure
comply
of resources
is insufficient
unappealing
or otherwise
federally imposed prohibitions.
with the
violation”).
Amendment
establish a Tenth
To the extent PASPA makes
unattrac
punishment
punitive
no
imposes
repeal
anti-sports
tive for states to
disagree
suggestion
tax. We also
laws,
wagering
requires
which in turn
en
face under PASPA
choices states
states,
forcement
effort PASPA
expansion
are as coercive
Medicaid
as
Sebelius,
requires
simply
is
that the states enforce
struck down
provision
participate
unwilling
maintain,
threatened states
is
laws
choose
regula-
complex
in a
and extensive
plainly
therefore
intrusive than the
less
funding
the loss of
tory program with
laws in Baker and Reno. PASPA also
ten percent
to over
of their
amounting
effect,
cases,
two
like the laws
those
Sebelius,
budget.
132 S.Ct. at
overall
rendering
any contrary
inoperative
laws.
Finally,
attempt
note that
we
persuaded by Appellants’
are not
We
on state-sanctioned
equate a ban
arguments
inap-
that Baker and Reno are
by Congress to
plan
to a
force
first,
contend,
posite. They
Reno
banning
activity
into
alto-
regulation
because
involved
different
gether
far too much credit to Con-
gives
private
way
states in
same
strong-arming powers. The attend-
gress’
parties. But that
the regula-
overstates
of regulating
ant
field
reality
Reno,
at issue in
which were directed
tions
*25
activities,
gambling, prosti-
such
certain
as
incidentally
pro-
at state
and
DMVs
use,
tution,
always
drug
and
states have
private persons
hibited
from further dis-
prohibitions, regardless
gravitated towards
seminating
they may
from the
data
obtain
Indeed,
noted,
as
Congress’
efforts.
all
See
safety
Ass’n,
Agric. Mktg. Bargain
Inc. v.
&
government enforced
ers
the federal
where
Bd.,
461, 469,
ing
them.
(1984).16
PASPA
provisions
And there are other
in federal
sports gambling
to
is
policy
respect
with
PASPA,
law,
protect-
outside of
aimed at
activity should not occur under
that such
sports
pall
of
from the
of
ing
integrity
noted,
license. As
of a state
auspices
wagering and that further demonstrate
from engag-
individuals
prohibits
PASPA
disfavoring sports-gam-
policy
federal
of
“pursuant
ing
sports gambling
scheme
PASPA,
Indeed, in
bling.
enacting
Con-
3702(2).
§
law.
to”
28 U.S.C.
state
gress explicitly noted that
the law was
words,
if
provision
even
other
n
“complementary to and consistent with
3702(1),
§
Jersey,
were ex-
offends New
respect
with
to
current Federal law”
[then]
3702(2)
PASPA, §
would still
cised from
sports wagering.
Report
Senate
at 3557.
Law
plainly
Sports Wagering
render the
has,
Congress
example,
for
criminalized
private parties
inoperative
prohibiting
attempts to'fix the
of a sporting
outcome
engaging
gambling
pursu-
from
schemes
event,
§
place-
18 U.S.C.
barred the
Thus, the
authority.
ant
federal
to
gambling
through
of a
bet
sports
ment
sports wagering that
policy
respect
to
place
wire communications to or from a
3702(2)
stop
§
clear: to
private
evinces is
illegal,
such
are
bets
18 U.S.C.
where
resorting
as a
parties from
to
law
§
trans-
proscribed
and
interstate
The
sports.
Sports
cover for
portation
carrying
of
for
means
out
Law,
purporting
permit
to
Wagering
lotteries,
1301,1307(d).17
§§
18 U.S.C.
3702(2),
“authorizes
individuals
skirt
[private parties]
engage
in conduct that
Appellants
contend that
has
forbids,
[and therefore]
federal
incor-
preempted
[Act]
not
state law but instead
accomplish-
an
porated
prohibi-
the[ ]
‘stands as
obstacle
certain
extent
full purposes
ment and
are
legal
execution
tions
tied to whatever is
under
” and
objectives Congress,’
of
accord-
state law. But PASPA itself is
tied to
Rather,
law.
ingly
prohibits
conflicts with PASPA and
PASPA
en-
argu-
ignore
govern-
Jersey
asks
we
this
there would be "no cost to the federal
bill,”
not raised
the United
ment because it was
ment ...
enactment of this
Senate
may
States below.
it is axiomatic
we
But
Report
proof
that PASPA seeks to
record,
any ground apparent
on the
affirm
upon
responsibility
foist
the states the
considering
particularly
de
novo
when
banning sports wagering. But this statement
Congressional
constitutionally
enactment.
import
taken
context.
it was
out of
may
The United
decide not
advance
States
require
spend-
that PASPA would
no "direct
not,
particular arguments,
may
but we
consis-
id,
funds,
ing
receipts”
but
Senate
duty
tent with
to de-
our
to "save
Report
itself
clear that
Justice De-
makes
Steel,
stroy,”
Laughlin
Jones
&
partment
already-earmarked
would use
funds
un-
that choice
declare
use
permit
it to "enforce the law without utiliz-
Congress.
constitutional
act of
The same
officials,”
prosecutions
State
criminal
arguments
be said
that the
United
report
id. at 3557. For a
issued well before
reading
Leagues'
States
opinions in New York and
delineat-
Printz
changed throughout
litigation
and should
ed
contours of modern anti-commandeer-
discounted, see, e.g.,
Arg.
Oral
therefore
Tr.
ing jurisprudence,
Report
the Senate
is re-
(June 26, 2013).
71:14-19
markably clear in that it seeks to increase the
government's
policing sports
role in
point to a
in the Sen-
statement
*27
that,
obligation along
wagering,
pass that
to
not
Report
ate
wherein the Committee notes
Office,
according
Congressional Budget
states.
to
the
the
pursuant
govern private parties,
to state law.
gaging
requiring
schemes
3702(2).
sure,
§
resources,
To be
some of
expenditure
28 U.S.C.
of
or giving the
provisions
the other cited
tie themselves to
choices,
hard
enough
states
were
to violate
state law—but the Tenth Amendment does
anti-commandeering principles, then what
require
Congress leave
room
less
Hodel, F.E.R.C., Baker,
of
and Reno The
F.E.R.C.,
govern.
for
states
456 overriding
contrary
of
state law via
Cf.
(noting
U.S. at
sponsored sports gambling. We hold that PASPA does not violate Equal Sovereignty Cases—North- anti-commandeering doctrine. Al- Shelby County west Austin though many principles set forth in centerpiece Appellants’ equal anti-commandeering may abstractly cases sovereignty argument is the support Appellants’ position, be used to analysis Voting Rights Act result Court’s doing expan- so would undue (“VRA”) in sion Mu- anti-commandeering doctrine. Northwest Austin If attempting way to influence nicipal Utility District Number One v. *28 li- 2504, permits Nevada to 193, 174 PASPA because
Holder,
129 S.Ct.
557 U.S.
do
(2009),
County,
gambling. We decline to
Shelby
cense
L.Ed.2d 140
—
Holder,
First,
fundamentally
-,
the
dif-
133 so.
v.
U.S.
VRA
Alabama
(2013).
represents,
In
It
the
ferent from PASPA.
L.Ed.2d
S.Ct.
Austin,
Supreme
explained,
Court was
“an uncommon
Supreme
the
Court
Northwest
utility district to rule
in an area
congressional power”
a small
of
asked
exercise
VRA,
constitutionality
§ 5
the
of
of
“the Framers of the Constitution intended
pre-
district to obtain
required
keep
for themselves ...
which
the States
before it
authorities
Shelby
clearance
elections.”
power
changes
to the manner
reg-
could make
The
County,
at
133 S.Ct.
The
was elected.
district
its board
ulation of
via the Commerce
pre-
from the
sought
exemption
had
an
thus not of the same nature as
Clause is
but
the district
requirement,
clearance
pursuant
regulation
of elections
eligible
are
court held that
states
Indeed,
Amendments.
Reconstruction
Austin,
Act. Nw.
under the
such “bailouts”
uniformity
treat-
guarantee
while the
196-97,
Fourth, accepting equal even complete preferences, ban on the under- sovereignty in principle applies the same mines invocation Appellants’ equal in manner the context of Commerce sovereignty doctrine. legislation,
Clause
we
no
con-
have
trouble
cluding
passes
Ap-
PASPA
muster.
Grandfathering
Clause
pellants’ argument
exemp-
that PASPA’s
Cases
also
argue
PAS-
remedy
tion
not properly
does
local evils
PA’s
for Nevada
exemption
is invalid un-
“targetfed]
because it
in
States which
City
der the
in
Supreme
analysis
Court’s
legal
absent,”
sports wagering was
N.J.
Dukes,
New Orleans v.
omitted),
Br. at
(emphasis
again
dis-
(1976),
L.Ed.2d 511
torts PASPA’s purpose
being
wipe
Creamery,
Minnesota
Clover
Leaf
out sports gambling altogether. When the
101 S.Ct.
Finally, Appellants ignore another fea- private parties nances aimed have little ture distinguishes PASPA from say state sovereignty. Ap- far about While singling VRA—that out a handful treatment, pellants states for contend that disfavored Dukes Clover favorably single Creamery treats more In- support position state. be- Leaf and our resolution of its upheld temporary grandfather- dispute of this cause clauses, indication strict was no us well within the there merits leave upheld clauses were that the either case set forth the Constitution bounds *30 legislatures that the temporary, indeed intact the state-federal balance preserves in fu- them the to rescind obligated were power. ture, supposedly temporal even that legal is- Having examined thе difficult was the basis of the the laws quality of that by the we hold parties, sues raised in than a statement holdings, other Court’s in Con- nothing PASPA violates U.S. had in Dukes legislature that the passing Con- The law neither exceeds stitution. target only particu- a “initially” chosen to powers any nor violates gress’ enumerated 305, 96 products. 427 U.S. lar class of implicit in the principle of federalism S.Ct. 2513.18 in our anywhere Amendment else Tenth that is no case there Appellants note Ap- structure. The heart of Constitutional grandfa- “permitted
where a court on PASPA pellants’ constitutional attack is justification to serve as a thering rationale on two that —while their reliance doctrines principle fundamental violating for each importance of undeniable —have N.J. at 59. But it equal sovereignty.” Br. notably used intrusive been to strike down why ease: to this hard see not and, indeed, extraordinary federal laws. in Supreme Court cases modern only two Extending Appellants as principles these sovereignty applied equal have times changes propose significant would result in principle.19 day-to-day operation Suprem- to the acy in our structure. Clause constitutional V. CONCLUSION Moreover, daylight see much between we inches, constitu- game If is a baseball invali- exceedingly intrusive statutes may described as adjudication tional anti-commandeering dated cases have degrees. questions we matter of straightforward and PASPA’s much more generis. sui many ways are in addressed stopping mechanism of states nor standing the merits issues Neither lending imprimatur gambling on easy an solution permit we tackled have sports. controlling pro- case that resorting to Jersey other state that New “Eureka!” moment. Our a definitive vides may legalize gambling wish to an from prece- role answer thus is distill their borders are not left without therein. within principles dent and the embodied adjudication gave redress. once But are confident that our Just PASPA we by disfavoring River over other does decision in Delaware Union them states Nor our County support exemp- v. Water & of their on Nevada's Commission Bucks attack Basin See, support per- e.g., Authority the notion that tion. Escanaba & Lake Mich. Sewer invalid, grandfathering Transp. Chicago, are 2 clauses S.Ct. manent given simply (1883) (explaining case we remanded L.Ed. why development the law may imposed record as whatever restriction have been grandfathering provision. ability operation at issue contained over Illinois' (3d Cir.1981). River, PAS- bridges Chicago 641 F.2d 1096-98 such re- over history pur- legislative is clear as PA’s disappeared was strictions once Illinois ad- state); pose exemptions, thus own Coyle, behind its mitted intо the Union as a River Basin. (holding survives Delaware that Con- require gress may Oklahoma change capital rely "equal as a condition of admission on the so-called its also Union). speak footing” into But PASPA does not principle, the notion entry the Union. may into the to conditions of admission into not burden a new state's preferential con- Jersey upholds treatment PASPA as a constitutional sports, Congress may text of congressional authority. exercise of again or, broadly, choose do so more I.
may
altogether.
choose to undo PASPA
It
place
Congress’
is not our
to usurp
role
I agree
my
colleagues that an ap-
may
simply because
have become propriate starting point for addressing Ap-
unpopular
forty-nine
law. The
pellants’ claims is
v. Virginia
Hodel
Sur-
not enjoy
do
PASPA’s solicitude
Mining
Ass’n,
& Reclamation
face
easily
Congress’ authority
invoke
should
69 L.Ed.2d
desire.
(1981).
so
Hodel,
the Court reviewed the
*31
constitutionality of the federal Surface
judgment
The District
AF-
Court’s
Mining
Act,
Control and Reclamation
a
FIRMED.
comprehensive statutory scheme designed
VANASKIE,
Judge, concurring
regulate against
Circuit
the harmful effects of
in part
dissenting
and
in part.
268,
surface
mining.
coal
Id. at
101 S.Ct.
act permitted
2352. The
states
I agree
my colleagues
with
wished to
permanent regulatory
exercise
Leagues
standing
have
challenge
authority
mining
over surface coal
to sub-
Law,
Jersey’s Sports Wagering
Stat.
N.J.
plans
mit
that met federal standards for
5:12A-2,
§Ann.
and
the Professional
271,
approval.
federal
Id. at
101 S.Ct.
(“PAS-
and Amateur
Act
Sports Protection
addition,
the federal government
PA”),
3702,
:§
28 U.S.C.
does not violate
created a
program
federal enforcement
for
the principle
“equal
I
sovereignty.”
states that did not
approval
obtain federal
join parts
therefore
III and IV.C of the
272,
plans.
for state
Id. at
preme [i]f Court State does wish to submit New York v. United States, 144, 2408, proposed permanent program 505 112 that com- U.S. S.Ct. 120 (1992), plies implementing 120 L.Ed.2d and Printz v. Act and United States, 898, 2365, 521 regulations, regulatory U.S. 117 S.Ct. 138 the full burden (1997), 914 L.Ed.2d I will respectfully dissent be borne the Federal Govern- Thus, part majority’s from that can opinion suggestion ment. there be no 242 tence,” legisla- County Oregon, v. [74 Lane U.S. Act commandeers
that the
(1869);
by directly
the States
The DPPA 2408). ultimately con- capacity plurality The sovereign in their S.Ct. regu- DPPA The own citizens. were conditions cluded the Medicaid as the owners data the States lates that “Con- unduly coercive and reiterated require It not South bases. does gress may ‘conscript state simply laws Legislature enact Carolina the national bureaucratic [agencies] into ” require does regulations, (quoting 2606-07 army.’ Id. at in the enforce- to assist state officials FERC, S.Ct. regulating pri- statutes ment of federal in (O’Connor, J., in concurring judgment individuals. vate dissenting in part part)). 151,108 Id. S.Ct. opinion Roberts’ Chief Justice While recently, in Federation Most National concerning expansion provi- the Medicaid — Sebelius, Business v. Independent of U.S.-, garnered signatures in sions Sebelius L.Ed.2d 450 dissenting justices, the four three (2012), down, as violative the Court struck justices princi- also invoked the federalism Clause, a in the Spending provision of the in ples concluding that of New York and Affordable Care Patient Protection expan- in funding the Medicaid conditions (“ACA”) fed- Act that would have withheld compelled states impermissibly sion grants to unless eral Medicaid govern Congress by coerc- directed re- expanded eligibility their Medicaid the expanded participation states’ quirements accordance with conditions (Scalia, Kennedy, program. Id. 2660-62 (plu- in the ACA. Id. at 2606-07 Thus, Thomas, Alito, JJ., dissenting). York, rality). Justice Quoting New Chief justices expan- found the Medicaid seven Roberts, three-justice plurali- writing for unconstitutional, citing the federalism sion ty, “‘the observed that Constitution principles part articulated in New York as upon never to confer been understood Impor- for their conclusion. ability require States basis govern according Congress’ seven-justice rejection instruc- tantly, ” York, tions.’ (quoting Id. at 2602 New based, part, expansion Medicaid 2408). plurality U.S. at York, represents signal clear that, then explained princi- based on principles enunciated *34 ple, York PHntz had struck down New to a class York are not limited narrow New federal statutes that “commandeer[ed] Congress specifically di- of cases which legislative appa- State’s or administrative affirmatively to legislature rects a state ratus purposes.” plu- for federal Id. The legislation. enact United States Cf. that, rality authority also noted within (3d Richardson, Cir. 658 F.3d Clause, Spending Congress may 2011) binding (observing that if not even power akin create “inducements exert Court, of a “the splintered due to votes “pressure to undue influence” where is, majority justices [a of] collective view of (in- compulsion.” into Id. [would] turn[] course, authority”). persuasive omitted). quotations Recognizing ternal “ simply Constitution does ‘[t]he II. give Congress authority require ” clearly New York and PHntz established plurality regulate,’ States to observed government that the cannot direct federal Congress is true whether di- “[t]hat legislation legislatures to state enact rectly regulate or commands State to implement policy. state officials to federal indirectly adopt feder- coerces a State to particular al is true that the two statutes regulatory system of its own.” Id. It under If objective review those cases involved con- of the federal govern- gressional commands states affirma- ment is to require regulate states to in a York, tively legislation, see enact New 505 manner that effectuates policy, any federal or affirma- distinction between federal directive that tively regulatory scheme, enforce a federal commands take affirmative action Printz, see 521 U.S. at prohibits S.Ct. 2365. and one that states from exercis- Printz, Nothing in or however, New York sovereignty illusory. Whether limited principles of federalism upon stated as a engage command to in specific which those cases relied to situations in or action as a prohibition against specific action, Congress directed affirmative activi- government’s federal interfer- ty part Rather, on the of the states. ence sovereign with a state’s autonomy general principle by Moreover, articulated the Court the same. recognition in New York was that untenable, such a distinction is as affirma- tive engage commands to in certain con- Congress
even where
authority
has the
duct can
rephrased
be
a prohibition
under
pass
the Constitution to
laws re-
against not engaging in that
quiring
prohibiting
acts,
conduct.
or
certain
Surely the structure of Our
power directly
lacks the
Federalism
compel
does not turn on the phraseology
require
prohibit
States to
used
or
those acts.
Congress
commanding the states how to
of power
allocation
contained in the
regulate.
interpretation
An
Clause,
of federalism
Commerce
for example, author-
principles
permits congressional
nega-
izes Congress
regulate
interstate
tive commands to
governments
state
will
directly;
commerce
does not author-
eviscerate the constitutional lines drawn in
ize
regulate
govern-
New York and Printz
recognized
regulation
ments’
interstate
com-
limit
Congress’s power
to compel state
merce.
carry
instrumentalities to
out
poli-
federal
York,
New
112 S.Ct.
understandably
Federal
bling,
Government
citizens will
explained, “where
its
may
regulate,
it
reg-
though
the States
state
directs
blame state officials even
bear the brunt of
who will
state officials
puppet
gambling
ulation
has become
of
offi-
the federal
while
public disapproval,
strings
government,
whose
federal
regulatory program
cials
devised
who
cut)
(or
in
PASPA.
reality pulled
by
are
from the electoral
may
insulated
remain
regulate
and
some
States can authorize
169,
Id. at
of
decision.”
their
ramifications
casi-
e.g.,
gambling,
forms of
lotteries
recognized
also
2408. The Court
S.Ct.
nos,
gambling
other
of
but not
forms
where Con-
in situations
Printz
by Con-
implement policy choices made
“imple-
officials to
gress compels state
Thus, accountability
aris-
gress.
concerns
regulatory program,
a federal
]ment
regu-
ing from PASPA’s restraint
state
can take credit for
Congress
of
Members
concluding
counsel in favor of
lation also
having to ask
‘solving’ problems without
it
of
principles
federalism.
violates
for the solutions
pay
their
constituents
taxes” and that
higher
suggest
govern-
with
federal
states
I do
the federal
position
taking
of
put
“are ...
may
prohibit
ment
certain actions
program’s] burden-
blame for
federal
[the
governments
it
If Con-
state
can.
—indeed
Printz, 521
and for its defects.”
someness
problem
within
gress identifies
falls
Although
at
248 York, example to in New is not deference state PASPA indicating federal
ther subjects generally applicable a law subject, a fourth federal stat laws on the regulation federal as states to same transport wagering to it a crime ute makes York, parties. See New private interstate commerce but in paraphernalia (“This litigation betting materials to be at S.Ct. to apply not does to or revisit the presents apply no occasion sporting events states where used 1953(a)-(b). holdings [concerning generally ... § Id. cases legal. betting such is laws], as this is not a case result, applicable prohibition As a the federal Congress subjected State to sports gambling not which does state-authorized applicable private legislation the same to regulatory a federal scheme emanate from In to its restrictions parties.”). addition expressly implicitly preempts or state governments relating state conflict with federal on actions that would regulation Instead, PASPA also forbids “a attempts sports gambling, im to policy. PASPA to advertise, sponsor, policy by telling person operate, to plement federal sports gambling “pursu if done they may regulate promote” not an otherwise governmen activity. compact af to the law or The Constitution ant unregulated 3702(2) § (emphasis Congress power. entity." no New tal such See U.S.C. fords (“The added); Thus, York, 178, 112 PAS- supra see also note predicated gives private parties au PA’s reach to is Congress the Constitution directly sponsorship, to authorization of thority to matters state’s advertisement, promotion of pre-empt contrary regulation. operation, state law.8 sufficiently sports gambling pursuant interest state Where federal is Congress legislate, Accordingly, cannot be said to strong cause directly....”). “subject[ legis ... States[s] so to the same ] must do parties,” applicable private lation New preempting regula- In state addition York, for 505 U.S. at regulation, tion with some cir- federal 3702(2) whether state law determines cumstances, Congress regulate states any particular reaches individual. applicable directly part generally as See, York, generally Nor more e.g., law. 505 U.S. does Reno stand cases). (collecting That is that a violation of “anti- proposition S.Ct. 2408 DPPA, commandeering” what did with the oc- principles federalism expressly Congress requires found in Reno to be curs when affirma- the Court Reno, generally activity by governments. It applicable. See tive (“[W]e DPPA, need in upholding S.Ct. 666 not ad- true that the question general appli- require dress whether Court noted that it not “d[id] cability requirement Legislature is a constitutional for South enact Carolina States, regulation regulations, require because laws or and it not d[id] federal generally DPPA The officials to assist in the enforcement applicable. indi- regulates regulаting private DPPA of entities of federal universe statutes Reno, suppliers to the market viduals.” participate ”). Yet, context, however, for motor information.... 666. Read that state- vehicle Reno, like that the suggest principles unlike the DPPA in but the act ment does accountable, though majority, According to a state would cials would be held even policy prohibits presumably run afoul of PASPA if it mere- would regu- prohibit sports gambling. taking effective ly refused to states from measures sense, market, however, resulting police activity. unregulated por- late and this this grave consequences for PASPA is indeed coercive. tends which state offi-
249 York comply regulations of federalism articulated New with federal is not to Printz are limited situations necessarily fatal to a federal law that Congress to compels states enact “‘regulate[s] activities,’ state rather than regulation. laws or enforce federal The ‘seeking]'to control or influence the man- preceding two sentences statement regulate ner in which private States par- First, make that clear. recog- Reno, ties.’” 528 at 120 S.Ct. require nized that “the DPPA not d[id] Baker, (quoting 514-15, 666 485 U.S. at sovereign capacity regu- States in their 1355) (second origi- alteration in here, late own Id. But citizens.” nal). states in “require does their sover- regulation direct federal of inter- eign regulate their own capacity to citi- state obviously commerce under the DPPA id., zens,” because it they dictates how distinguishes Reno from New York and must regulate sports gambling. Pursuant Printz, where the federal statutes at issue PASPA, “sponsor, oper- states not in those required cases states to enact ate, advertise, license, promote, or author- legislation and enforce policy, federal re- 3702(1). activity, ize” such 28 U.S.C. spectively. But it distinguishes also Reno Thus, govern accordingly, states must even from this by refraining recognized, if that means case. As the Court providing regulatory governs scheme that DPPA regulatory “[t]he established] gambling. Reno, 144, 148, 151, scheme.” above, As S.Ct. 666. discussed howev-
Second,
explained
the Court
in Reno
er, PASPA is
regulatory
not
itself a
that,
regulates
DPPA
“[t]he
States as
scheme, nor does it combine with several
personal
owners of data bases” of
infor-
other
criminal
Reno,
scattered statutes in the
mation in motor vehicle records.
code to
(emphasis
regulatory
S.Ct. 666
create
federal
scheme.
added).
regulat-
The fact that the DPPA
Congress
regulated
And while
could have
as “suppliers
ed states
to the market for
sports gambling directly under the Com-
information,” id,
motor
clearly
vehicle
in-
Clause, just
it regulated
merce
motor
dicates that the Court
the DPPA
viеwed
DPPA,
vehicle information under the
did
it
congressional regulation
as direct
of in-
Instead,
not.
pa-
chose to set federal
commerce,
terstate
id. at
may regulate
rameters as to how states
(recognizing
that motor vehicle infor-
sports gambling.
result, any
As a
reliance
mation,
DPPA,
in the context of the
uphold
misplaced.
Reno to
PASPA is
commerce”),
“an article of
than
rather
provide
sup-
Hodel and FERC also
no
requirement
federal
for
to reg-
the states
Hodel,
port for upholding PASPA.
York,
activity,
ulate such
see New
permitted
statute
issue
states to submit
(“The
U.S. at
regulation.
sippi’s
*39
925-26,
Printz,
at
117
S.Ct.
also
PASPA does indeed suffer
S.Ct.
(“In
... we concluded that the
Hodel
a
the obverse of such
constitutional
Reclamation
Mining
and
Control
Surface
prohibits
it
exercise of states’
defect:
present
[a
not
Tenth
Act
1977 did
of
sovereign powers. FERC is thus distin-
it
problem
because mere-
Amendment]
guishable
inapposite.
and
federal standards
ly
compliance with
made
Finally,
recognized by
majority,
regula-
to continued state
precondition
a
in
our decision
the Commissioner
Office of
(ci-
pre-empted field.”
tion in an otherwise
(3d
Markell,
al regulating how states
regulate. problem If identifies Id. notes mostly foregoing. but consistent with the