National Collegiate Athletic Ass'n v. Governor of New Jersey

Stephen Sweeney, M. President of the of question viola- substantial present Jersey Senate; Prieto, Thus, New Vincent duty obligation. tion of federal Speaker of the New of Green- General question squarely faced (Intervenors Assembly validity, District we conclude that continuing berg’s Court), Appellants in 14-4568 prece- cast doubt on our Vaden fundamental- holding but rendered dent Jersey; David L. Governor with the Court’s ly inconsistent Rebuck; Zanzuccki, Frank inquiries under analysis jurisdictional Appellants 14-4546 Accordingly, Green- Act. we overrule courts federal berg conclude Jersey Thoroughbred Horsemen’s petitions, applying through” “look Association, Inc., Appellant in 14- federal-question ju- ordinary principles of underlying dispute as de- to the risdiction 14-4546, 14-4568, judg- and the Nos. and 14-4569 fined Vaden. order VACATED, Court are ment of District Appeals, United States Court of REMANDED for further case Third Circuit. opinion. consistent with proceedings 17, 2015

Argued on March before Merits Panel En Rehearing Banc Court Ordered 14, 2015 on October Argued February Banc En 2016) August filed: (Opinion (Amended: 11, 2016) August ATHLETIC NATIONAL COLLEGIATE ASSOCIATION, unincorporated an

association; National Basketball As- venture;

sociation, joint National League, unincorporated an

Football

association; Hockey League, National association; unincorporated Office Baseball, an

of the Commissioner doing

unincorporated association Major League Baseball

business as

v. OF NEW

GOVERNOR Rebuck,

JERSEY; L. David Director Gaming the New Division of Attorney

Enforcement Assistant Jersey; the State of

General of Zanzuccki, Executive Director

Frank Jersey Racing Commis-

of the New

sion; Thoroughbred Association, Inc; New

Horsemen’s Jer- Authority

sey Sports Exposition & P.C., Center, Gateway

quire, Gibbons One Newark, Counsel for Sweeney M. Appellants Stephen and Vin- cent Prieto. Clement, (ARGUED), Esquire

Paul D. PLLC, Murphy, Esquire, Erin Bancroft Street, N.W., 470, M Washing- 1919 Suite 20036, ton, Mishkin, Jeffrey A. DC Es- Anthony Dreyer, Esquire, quire, J. Skad- den, Flom, Slate, & Arps, Meagher, 4 10036, York, Square, Times New NY Wil- O’shaughnessy, Esquire, liam J. Richard Hernandez, & En- Esquire, McCarter Street, Mulberry Gateway Four glish, 100 Newark, Center, Floor, 07102, 14th NJ Collegiate Appellees Counsel for National Association; Athletic National Basketball Hoffman,, Acting Attor- Esquire, John J. Association; League; National Football Jersey, of New ney General League; Hockey National Office Jacobson, Esquire, Stuart M. Jeffrey S. Commissioner of Baseball. Feinblatt, Slocum, Es- Esquire, Peter M. Branda, Joyce Esquire, Acting R. Assis- of New quire, Attorney General Office Division, General, Attorney tant Paul Civil Street, Trenton, NJ Jersey, Market Fishman, (ARGUED), Esquire J. United Hoffman, 08625, Esquire, M. Gib- Matthew Attorney States of the District of New Dunn, Avenue, Los son South Grand McIntosh, Esquire, Jersey, Scott R. Peter Johnson, 90071, Ashley E. Angeles, CA Esquire, Attorneys, Phipps, Civil Divi- J. Dunn, McKinney Av- Esquire, Gibson sion, Justice, Department P.O. Box U.S. 75201, 1100, Dallas, enue, TX Theo- Suite 883, 20044, Washington, for DC Counsel (ARGUED), Olson, Esquire Mat- dore B. Amicus States of America. United Dunn, McGill, Esquire, thew D. Gibson Floor, Avenue, N.W., 9th 1050 Connecticut FUENTES, AMBRO, SMITH, Before: 20036, for Washington, Appel- DC Counsel JORDAN, HARDIMAN, FISHER, Jersey, of New lants Governor of the State JR., VANASKIE, GREENAWAY Rebuck, L. and Frank Zanzuccki. David RENDELL, KRAUSE, RESTREPO, Berman, Esquire, McElroy, M. Elliott BARRY, Judges Circuit Deutsch, Mulvaney Carpenter, & 100 Mul- Center, Street, Gateway Three New- berry OPINION ark, Riccio, 07102, Esquire Ronald J. NJ RENDELL, Judge: Circuit Hartnett, (ARGUED), Esquire, A. Edward Deutsch, Mulvaney Carpenter, McElroy, & presented the en banc The issue before Avenue, Box 1300 Mount Kemble P.O. 2460, which court whether SB Morristown, 07962, for NJ Counsel par- Jersey enacted Legislature Thoroughbred Appellant Jersey prohibitions on tially repeal certain Horsemen’s Association. (the Law”), violates feder- “2014 Serv. Ch. law. Sess. Law Thomas al 2014 N.J. Griffinger, Esquire, Michael R. - §§ Hradil, Ann. 5:12A-7 to Valen, at N.J. Stat. R. A. Es- codified Esquire, Jennifer Delaware, District held that the Court exception also an for New Professional Law violates the and Amateur Jersey Jersey but if New were to (“PASPA”), Sports Act Protection sports gambling enact a scheme within one §§ A panel U.S.C. 3701-3704. of this Court 3704(a). year § of PASPA’s enactment. Id. ruling affirmed this a divided opinion so, did not do thus which was subsequently upon vacated exception Notably, sports expired. grant Rehearing the Petition for en gambling prohibited banc. We now District hold Court many years statute and the New correctly ruled that because See, e.g., Constitution. Const. N.J. terms, prohibits ¶ states from authorizing by 2; § § Art. VII IV N.J. Stat. Ann. 2C:37- gambling, law sports and because the 2014 2; N.J. Stat. Ann. 2A:40-1. In how- that, exactly Law does the 2014 Law vio- ever, Jersey the New Legislature held lates federal We hold law. also that we public hearings advisability on the of al- correctly ruled in Chñstie 1 that PASPA lowing sports gambling. hearings These does not in way commandeer the states a testimony included sports gambling that runs afoul of the Constitution. generate would Jersey’s revenues for New In struggling casinos and racetracks. Background I. Legislature asking held referendum passed Congress PASPA in 1992 to Jersey New sports gam- voters whether hibit sports gambling. state-sanctioned bling permitted, sixty-four should be provides: PASPA percent voted in amending favor of Jersey New to permit sports It shall be for— Constitution unlawful The gambling. constitutional amendment (1) a governmental to entity sponsor, provided: advertise, license, operate, promote, or or by compact, authorize law or It shall also Legisla- be lawful for the (2) person sponsor, operate, ad- ture to wagering authorize law at vertise, promote, pursuant or to the law or gambling casinos in houses Atlantic compact governmental or of a entity, a City of any professional, on results lottery, sweepstakes, or betting, other college, sport or amateur or athletic gambling, wagering or event, scheme based except that wagering shall not be ... one competitive games on or more permitted college on a sport or athletic professional which amateur or athletes Jersey event that takes place New or participate, partici- or are intended on sport event in any athletic which pate, or on performances one or more college New team participates such games. athletes in such regardless of where the event takes place.... added). § (emphasis U.S.C. PASPA “governmental defines entity” to include §VII, ¶2(0). IV, N.J. Art. Const. states and their political subdivisions. Id. amendment thus permitted the New Jer- 3701(2). It provision includes remedial sey Legislature to “authorize law” that permits any sports league whose sports “wagering at casinos gambling games are or will subject be the of sports City,” houses in Atlantic except that wa- gambling an bring enjoin action to gering permitted was not gambling. §Id. college teams or on collegiate event exceptions included occurring Jersey. An additional for state-sponsored sports wagering in permitted Ne- section of the amendment vada in Oregon Legislature lotteries to “authorize law” rejected the running In Christie we New Jer- or former “wagering current racetracks,” subject sey argument Parties’ PASPA was horse and harness by commandeering New unconstitutional New Jer- regarding restrictions the same so, doing Jersey’s legislative process. events sey college collegiate teams and ¶ 2(F). “[njothing we stated [PASPA’s] Id. occurring Jersey. in New keep any that the states requires words approved sports-wager- After voters place. prohibited All that is the amendment, the New ing constitutional ‘license[sj’ issuance of or the af- Sports Wa- Jersey Legislature enacted the gam- firmative law’ of ‘authorization] (“2012 Law”), which gering Act in (alterations bling Id. at schemes.” sports wagering at provided regulated original). The New Parties had Jersey’s N.J. casinos and racetracks. urged that PASPA commandeered the (2012). seq. §§ Ann. 5:12A-1 et Stat. it prohibited state because comprehensive 2012 Law established a Jersey’s prohibitions sports gam- scheme, regulatory requiring licenses for bling; they repealing reasoned that a stat- employees, individual exten- operators and activity be barring equivalent ute would documentation, minimum cash re- sive activity, and “authoriz- serves, Gaming Enforce- and Division of not allowed PASPA. ing” was We re- security ment and surveillance access to jected argument, observing that that systems. ‘authorizing speaks “PASPA of enjoin leagues1 the Five sued to scheme,” gambling and “[w]e law’ of The 2012 Law as violative PASPA.2 place in having not see how no law [did] Jersey dispute not that New Parties did sports wagering is same as governing the urged but the 2012 Law violated law.” (emphasis Id. in instead that PASPA was unconstitutional original). emphasized We further “the anti-commandeering under the doctrine. lack of an affirmative of an that PASPA was activity The District Court held affirmatively does not mean it is enjoined implementation The right constitutional and law. to do that authorized Jersey prohibited of 2012 Law. The New Parties derives not from the which is authority we in National the of the state but from the appealed, and affirmed (empha- the rights people.” v. inherent of Id. Collegiate Athletic Ass’n Governor of (3d 2013) short, concluded that Jersey, original). Cir. sis we New 730 F.3d (Christie I). Jersey rested argument the New Parties’ Association, leagues oughbred Inc. the Colle- Horsemen’s 1. were National Association, defendant, ("NJTHA”) giate Football Athletic National as intervened as a did Association, League, Na- National Basketball Sweeney, Stephen the New M. President of Hockey League, tional and the Office of Senate, Oliver, Speaker Jersey and Sheila Y. Baseball, doing as of business Commissioner ("State Jersey Assembly the New General of (collectively, Major League Baseball Legislators”). collectively We refer these "Leagues”). parties Jersey In the as the “New Parties.” case, Jersey are present the New Parties Leagues 2. The named as defendants Christo- same, exceptions. with some NJTHA was Christie, pher J. the Governor of the State of (i.e., it not inter- named as a defendant did Roebuck, Jersey; David the Director New L. vene), Jersey Sports New and Jersey Gaming of Division En- of Authority; partici- Exposition the latter is not Attorney General of forcement and Assistant Additionally, pating appeal. this Vincent Jersey; Zan- of New and Frank State Prieto, Oliver, Speak- zuccki, is now the not Sheila Y. Jersey Executive Director Assembly. Jersey Racing Thor- er of the General Commission. The sport on “false between teur or athletic equivalence contests events.... Jersey authorization.” Id. 233. The New appealed Parties to the Court of N.J. Law Stat. Ann. 5:12A-7. The 2014 States, United which denied certiorari. specifically prohibited wagering on New Jersey college competitions teams’ and on Undeterred, Legislature any collegiate competition occurring in Law, passed SB which Jersey, sports wager- and it limited part: vided ing “persons years age or older location[s],” namely situated at such casi- [A]ny regulations may rules and nos and racetracks. Id. any require agency or authorize license, authorize, permit or otherwise History II. Procedural Ar- Parties’ any person take action to allow to en- guments placement acceptance or gage Leagues enjoin filed suit to wager any professional, collegi- Jersey giving the New Parties from effect ate, sport or amateur contest or athletic to the 2014 The District Law. Court held event, prohibit participation or PASPA, grant that the 2014 Law violates accepts operation pool such summary judgment ed in favor of the wagers, repealed to the they are extent Leagues, injunc permanent and issued a apply apply or be construed to at a against Jersey, tion the Governor New operating casino or house in the Director of the New Division of City a running this State in Atlantic Enforcement, Gaming and the Executive State, or harness horse racetrack Director of the New Com Racing placement acceptance to the of wa- (collectively, mission En the “New Parties”).3 gers professional, collegiate, joined or ama- The District Court inter- Court, Jersey the the New District En- mative ultra vires act But the state officials. joined urged the passive. Parties that Eleventh Amend- 2014 Law from is far As we conclude gave immunity they length, regula- that ment them such at the 2014 Law establishes a challenging regime tory wagering could not be in an action sued the that authorizes on rejected sports per- particular 2014 Law. The District Court in for limited locations we, that, sons, argument, Jersey as do and we note while so it is an affirmative act New briefed, Jersey issue the New the En- state officials authorize bet- to such, press joined ting, imple- Parties did not even men- in of As violation PASPA. —or argument squarely at tion—this issue oral before either mentation of the law the falls within panel They parte exception en Young sovereign the merits or the banc court. Ex to immu- that, nity upon “simply illegal contend because the 2014 Law is a self- because an act executing repeal requires part attempting, by that no action the of a from state official official, state, they them or other state are im- the of the name of the a use to enforce argument legislative mune from suit. This The fails. New enactment which is void because" 159, Jersey Enjoined subject contrary are to Parties suit it is to federal law. 209 at U.S. parte Young exception the determining under Ex to Elev- "In 28 S.Ct. 441. whether the immunity, "permitís] enth parte Young Amendment which of Ex doctrine avoids an Eleventh suit, rights federal courts to vindicate federal Amendment bar a court need responsible straightforward inquiry and hold state officials 'the conduct into wheth- " authority supreme complaint alleges ongoing of the United States.' er the violation Halderman, Hosp. properly Pennhurst State Sch. & v. of federal law and seeks relief char- 89, 105, 900, Maryland, prospective.” 465 U.S. 104 S.Ct. 79 L.Ed.2d acterized as Verizon (1984) (quoting parte Young, Maryland, Ex Inc. v. Pub. Serv. Comm'n of 123, 160, 1753, (1908)). S.Ct. 52 L.Ed. 714 U.S. S.Ct. 152 L.Ed.2d argument (2002) (internal contrary Jersey quotation of the New and marks al- omitted). Enjoined premise precisely Parties relies on a false that terations That is the situa- execution of the 2014 Law no We involves affir- tion we face in this case. therefore need stated, regard I holding PASPA chairman that preted Law, maintaining give that want to the race- “[w]e to states: offers two choices com- help a shot the arm. We want tracks something It City. reasoned We want to do pletely repealing them. Atlantic of PASPA be- gaming Law runs afoul in the state of New business partial repeal cause the 2014 Law is which tremendous Jersey, has been under 91.) necessarily sports wagering Jersey results New (App. duress....” imprimatur. Jersey Lesniak, law, the State’s The New Ray sponsor of the Senator appealed. betting Parties has that “[sjports likewise stated n casinos, putting will be a lifeline to the Parties ar- appeal, On New people generating to work and economic 2014 Law does not constitute gue that the 94.) activity growth industry.” (App. in a of PASPA and an authorization violation And Joseph State Senator with Christie I because it is consistent Kyrillos Jersey’s “New stated that contin- Legislature repeal- effected sports betting ued our I specifically permitted. er as contrary to casinos and racetracks is our 2014 Law Leagues urge supporting employers interest it “authorizes PASPA because violates jobs vide and add tens thousands wagering impermissi- and law” also economy” to our and that billions state’s activity by confining the bly “licenses” “[sjports betting help will set Jer- to licensed gambling prohibitions sey’s from wagering apart facilities effect, thus, and en- gambling facilities competition strengthen Monmouth gaming li- existing the terms of larging industry.” Park our struggling casino submitted an censes. The United States 138.) (App. stymied clearly PASPA has Leagues. support amicus brief Jersey’s its attempts revive casinos A in a of this Court affirmed panel provide jobs for its racetracks and subsequently opinion, which was divided workforce. banc, we, sitting en es- vacated. Because reasoning of the sentially agree with Moreover, PASPA is not without majority’s incorporate panel opinion, we critics, even aside from its economic much in this opinion. of it verbatim impact. prohibit It has for been criticized activity, i.e., ing sports gambling, an Analysis4 III. neither immoral nor its critics view as n A. The 2014 Law Violates PASPA dangerous. It also been criticized for has matter, illegal sports encouraging spread we preliminary As a ac making to fix salutary pur gambling and it easier knowledge the Law’s for 2014 precludes transparency it legalize sports gam games, since pose attempting to legal Simply activities. accompanies casino and that bling to revive its troubled ques put, are that certain cognizant The New As “[w]e racetrack industries. gam- to case—whether Gaming tions related sembly and Tourism Committee Am., (3d 413 Cir. question Co. N. 642 F.3d not address the of whether unsettled exception 2011). grant parte Young must exist in the Ex “We review a district court’s truly self-executing law because the case of permanent injunction for abuse discre- 2014 Law is one. Soc’y, Meyer Mut. v. CUNA Ins. tion.” (3d 2011). F.3d Cir. grant 4. "We review a of sum- district court’s ” mary judgment Viera v. Ins. de novo.... Life bling on events is harmful to the sporting rights people” from inherent of the and games’ and integrity whether states should that no law do not having “[w]e see how permitted profit be license and from to place governing sports wagering is the views.” Christie strong I, activity engender law.” same as — provi- 730 F.3d at 215. While PASPA’s at 730 F.3d 232. But this is not a situation (and, are sions and its reach controversial are no laws there governing sports where unwise), say, some might “we are not gambling Jersey. Absent the 2014 judge asked to the wisdom of PASPA” and Law, Jersey’s myriad prohibit- laws place usurp Congress’ is not our “[i]t ing sports gambling apply would to the simply role may because PASPA have be- Thus, casinos and racetracks. Id. come an law.” unpopular provides Law authorization conduct I in noting We echo that “New clearly is otherwise and completely may and other state that wish prohibited. legally to legalize gambling sports ... are not Second, the 2014 Law authorizes left without redress. Just as once gambling by selectively dictating where gave Jersey preferential treatment occur, sports gambling may may place who gambling context of on sports, Con- in such gambling, bets and which athletic gress may choose ... again to do so or permissible subjects are contests for such altogether.” choose to undo PASPA Law, gambling. Under the 2014 New Jer Id. at 240-41. that happens, Unless howev- sey’s gambling prohibitions spe are er, duty-bound we are to interpret the text cifically casinos, removed from the law as wrote it. houses, long and horse as racetracks as turn primary ques We now to the age over, are people the bettors or tion before us: whether the 2014 Law vio long as there are no bets either New lates PASPA. We hold that it Under does. Jersey college collegiate competi teams or govern it shall be unlawful for “a occurring Jersey. tions The word entity sponsor, mental operate, adver means, alia, empow “authorize” inter “[t]o tise, promote, license, or authorize er; give right authority act,” or compact” sports gambling. 28 U.S.C. permit thing to be done in the “[t]o 3702(1). We conclude Law (6th Dictionary future.” Black’s Law violates PASPA because it authorizes 1990).5 The ed. 2014 Law allows casinos law sports gambling. patrons and racetracks and their to en First, the 2014 Law authorizes casinos circumstances, under gage, enumerated operate sports gambling racetracks conduct other businesses and their prohibit while other laws gambling patrons cannot do. That selectiveness con by all other entities. Without specific permission empower stitutes Law, sports gambling prohibitions ment. would apply to casinos and Ap- racetracks. pellants urge Appellants urge that the 2014 that because the 2014 Law does hot provide only authority “repeal” removing prohibi- for Law is gambling be- previously against cause we held right sports gambling, that tions it is not an “[t]he to do prohibited that which is not “affirmative authorization” under derives authority not from the I. To the extent that in Christie I we took of but the state 5. We passed. cite the version of Black’s Law Dictio- PA was nary that year was current in PAS- the

397 permitted sports gam ception cannot constitute would have that a position the reject casinos, rea- authorization, Jersey’s now that New which is bling we Moreover, the adopt do not we soning. just the 2014 Law does. can what We the avail- options that Court’s view District that, explicitly easily excepting infer limited to Neither a state are two. able to sports gambling of in New Jer scheme necessary to were propositions these sey’s prohibitions, casinos from PASPA’s were, in es- respective rulings and their Congress that such a scheme intended Furthermore, sence, our dicta. discussion violate If had not would PASPA. similarly repeals versus total is partial in sports gambling that New perceived 2014 unnecessary determining the PASPA, Jersey’s casinos would violate question pre- legality because the Law’s needed the then it would not have to insert what straightforward i.e., here is sented — words, if Jersey exception. other law does not turn on the the do—and does in New casinos sports gambling Jersey’s which the state has enacted way in not violate then PASPA’s does directive. exception for New would one-year “repeal” the word does presence read superfluous. have been We will not the examining us from what prevent not statutory provisions to be See surplusage. does, Legisla- provision actually the —Corp., Marx v. Gen. Revenue U.S. change the not use of term does ture’s -, 1166, 1178, 185 242 S.Ct. L.Ed.2d 133 selectively grants permission Law (“[T]he (2013) against is surplusage canon gam- engage to certain entities interpretation strongest when an would gambling prohi- Jersey’s sports bling. superfluous part another render remain, may engage no one bitions scheme.”). In order statutory same those out except singled conduct such Jersey exception rendering avoid artfully Law. couched While we Law as surplusage, must read essen- repealer, of a Law terms clearly violates scheme that, any notwithstanding tially provides PASPA.6 law, race- casinos and other to have permitted shall hereafter be tracks argument that the support As for their This is an authorization. sports gambling. PASPA, Appel- violate 2014 Law does not Law’s lants cite construction Third, exception vision, provi- provides “[t]he which take Jersey, which the State did not ... are not intended sions of act lim one-year time advantage before causing be the State shall not construed remarkably similar to expired, advertise, sponsor, promote, operate, PAS- exception Law. The states that license, compact” or authorize or apply betting, gambling, PA does not to “a § N.J. Stat. Ann. 5:12A-8. sports wagering. ... exclu wagering scheme conducted mirrors lan- conveniently PASPA’s This ..., the extent sively casinos but “spon- that states guage providing gaming ... commercial casino license, advertise, sor, promote, operate, throughout ... operation scheme was compact” sports wa- law or authorize 10-year period” before PASPA 3702(1). 3704(a)(3)(B). § gering. The ex- U.S.C. enacted. U.S.C. Granted, Jersey exception applies the because the to horse canee of 2014 Law casinos, already gambling places al- to while the PAS- refers racetracks well as within gambling, fall exception only to and the racetracks refers low PA for casinos, signifi- change that rubric. but that does not the provision construction does not which regulatory scheme, involved broad

save the 2014 Law. States not use as evidence that the 2014 Law does not drafting clever mandatory construction violate PASPA. It is true that the 2014 provisions escape supremacy the of fed Law does not set forth a comprehensive Haywood Drown, eral law. v. 556 U.S. provide scheme or regulatory for a state Cf. 729, 742, 2108, role, S.Ct. 173 L.Ed.2d 920 However, as the 2012 Law did. PAS- (2009) (“[T]he Supremacy Clause cannot PA does not limit its reach to active state by formalism.”); be evaded Howlett ex rel. involvement or regulation extensive Rose, 356, 382-83, Howlett v. 496 U.S. gambling. It prohibits a range (1990) (“[t]he S.Ct. 110 L.Ed.2d 332 activity, state the least intrusive of which Supremacy force Clause is not so is by “authorization” law of gam- weak that it can be by evaded mere men bling. word).

tion particular of’ a In the same We conclude that the 2014 Law violates vein, the New Jersey Legislature cannot PASPA because it authorizes law sports a targeted use provision construction gambling.7 limit the reach of PASPA or to dictate to a court a construction that would limit that Impermissibly B. PASPA Does Not PASPA, reach. 2014 Law violates Commandeer the States provision the construction cannot alter that Appellants expend significant effort fact. appeal this revisiting our conclusion in Appellants also draw a comparison be- Christie I that PASPA not does unconsti- Law, tween Law and the 2012 tutionally commandeer They the states. 7. Because we conclude that the provision 2014 Law dealing Law’s with casinos from sports gambling, authorizes law we need provision dealing with racetracks.” Id. at 24. argument by Appellees address the made limitation, Lifting age permitting betting and Amicus that the Law also licenses games, on New limiting schools' sports gambling by permitting only those enti- authorization category to an even narrower already gambling ties that have licenses or venues, however, would not alter our conclu- recently had such licenses to conduct sion that the Law authorizes law gambling operations. reject argu- We also sports betting. determining standard "The Legislators ment of the State and the NJTHA severability provi- anof unconstitutional that, aspect extent that of the 2014 sion is well established: Unless it is evident Law violates apply we should Legislature that the would not have enacted severability Citing Law’s clause. provisions those power, which are within its broadly-worded severability provision of N.J. not, independently of that which is the invalid 5:12Ar-9, they Stat. Ann. argue that the Dis- part may be dropped if fully what is left is trict Court should have saved the 2014 Law Airlines, operative as a law.” Alaska v. Inc. by severing objectionable parts. the most For Brock, 678, 684, 107 S.Ct. that, example, urges the NJTHA "if the Court (1987) (internal quotation L.Ed.2d 661 marks ... concludes that a prohibit state decision to omitted). Jersey’s legislature, Because New persons under 21 making sports from bets is Law, both the 2012 Law and the 2014 authorization activity by [an] for that permit sports betting loath to gam- outside of persons age over limitation could be establishments, bling reasonably we cannot severed, leaving sports gambling op- it to the say that it would have enacted of its impose ... age erators a reasonable limit.” restriction, gambling age laws without the that, Reply argues NJTHA’s Br. at 23. It also without the restriction on "if the Court concludes that a state decision Jersey-based college sports, prohibit sports betting ... games on some without geographic [an] authorization by betting law as to restriction to casinos and race- games, other all speculate limitation could tracks. We thus be sev- need not about oth- ered,” and that "the possible Court can sever the er might forms that severance take.

399 v. v. States Printz New York United Court’s erro- the District effort in root this States, 898, 117 S.Ct. United 521 U.S. presents that PASPA neous conclusion (1997). main- 2365, choice—either We summa- binary 138 L.Ed.2d 914 states wa- complete prohibition prior our review below. tain a rize prohibitions. state wholly repeal or gering First, in passing action congressional I, lengthy in a engaged In Christie we fields has pre-emptible laws otherwise assertion Appellants’ discussion rebut the states attack cases where withstood Jersey’s re- that New that if we conclude imple- or compelled not to enact laws were permitted of its peal pro- statutes or regulatory ment federal unconstitutionally it has then Hodel, Supreme In grams themselves. doing, In so Jersey. commandeered a law constitutionality upheld Court clear Court’s Supreme we discussed the coal imposed that federal standards commandeering. prior Our law on case A a choice. mining. The law left states afoul does not run that PASPA conclusion regulatory permanent could “assume state remains anti-commandeering principles mining op- authority ... surface coal over attempt call Appellants’ despite sound perma- a proposed erations” and “submit the 2014 Law as using question into that that program” “demonstrate^] nent exemplar. im- has laws legislature the state enacted protection plementing the environmental Anti-Commandeering Jurispru- 1. that the has the ... and standards State dence ability to en- and technical administrative I, noted Christie the Su As we Hodel, 452 U.S. at standards.” the[ ] force anti-commandeering princi preme Court’s However, if 271, a state 101 S.Ct. 2389. “Congress the conclusion ple rests on authority, regulatory chose not to assume directly compel power ‘lacks “adminis- government federal would which require prohibit’ acts States and contin- the Act within ] ter[ require prohibit.” itself a ‘state unless and until as such ue[ ] I, (quoting at 227 Christie 730 F.3d 272, approved.” Id. at 101 gram’ [wa]s 166, States, 505 U.S. 144, v. York United I: in As we described S.Ct. 2389. (1992)). 2408, 120 L.Ed.2d 112 S.Ct. 120 provi- upheld the Supreme Court The of the anti-commandeer prior survey our compelled sions, they noting neither grouped we four law in ing case stan- the federal adopt the states feder upholding commandeering cases any dards, expend required them “to nor (1) categories: into two at issue al laws funds,” them into nor coerced state pre-emptible in a regulation permissible regulatory in the federal “participat[ing] & Virginia Min. Hodel v. field, Surface manner whatsoever.” program Ass’n, Inc., 264, 101 452 U.S. Reclamation [Hodel, 288, at S.Ct. U.S.] (1981), 2389, L.Ed.2d S.Ct. that Con- further concluded Court 742, 102 Mississippi, 456 U.S. F.E.R.C. v. completely have chosen to gress could (2) (1982); 2126, 72 L.Ed.2d 532 S.Ct. assuming field simply preempt Car action, South on state itself. Id. It regulations oversight of Baker, 505, S.Ct. olina v. Amendment Tenth thus held v. (1988) and Reno L.Ed.2d 592 by which system ato posed no obstacle Condon, 528 U.S. 120 S.Ct. the States to allow Congress “chose (2000). Court L.Ed.2d 587 290, 101 S.Ct. Id. role.” regulatory laws on anti-com down federal has struck characterized later cases, the Court 2389. As two grounds mandeering Hodel, constitutionality the scheme there did not violate prohibited of a law that anti-commandeering principle releasing gathered the be states from information departments state “merely compliance it made of motor vehicles. cause ultimately The Court concluded that the precondition federal standards to con law at issue require “d[id] not the States in regulation tinued state an otherwise sovereign capacity their to regulate their preempted field.” Printz v. United citizens!,] own (cid:127) (cid:127) (cid:127) require hot the States, d[id] 898, 926, 2365, 117 S.Ct. Legislature^] [State] enact laws or (1997). 138 L.Ed.2d 914 regulations, require not state d[id] I, Christie at F.3d 227-28. The Su officials to assist the enforcement of preme opinion Court’s in F.E.R.C. v. Mis federal regulating private statutes individ- sissippi following year the confirmed its Reno, uals.” 528 U.S. at S.Ct. view that a unconstitutionally law does not (as 228). I, altered Christie at 730 F.3d commandeer the states when the law does above, As Supreme noted the Court has impose requirements not federal on the invalidated laws on anti-commandeering states, but leaves states the choice to de grounds two occasions. In New implement cline to federal standards. 456 York, Supreme the Court struck down a 742, 767-68, 102 U.S. (upholding S.Ct. 2126 “take-title” provision whereby states were a provision required utility state com required to take title to radioactive waste panies expend state resources to “con date, by a specific at the generator’s waste standards, enacting sider” federal but did request, if they adopt did not a federal , require states to enact those stan I, program. As we stated in Christie dards). provision “compelled] the states to either Second, Supreme Court has found regulatory enact a program, expend Congress’s prohibition of certain state ac- in taking resources title to the waste.” tions to not constitute unconstitutional I, Christie Supreme 730 F.3d at 229. The commandeering. In South Carolina v. ultimately Court concluded New York Baker, upheld the Court federal laws that provision that the take-title “crossed the prohibited bonds, the issuance of bearer distinguishing line encouragement from which required states to legislation amend coercion.” 505 U.S. at 112 S.Ct. 2408. 511, 514, to be in compliance. 485 U.S. Similarly States, in Printz v. United (1988). 108 S.Ct. 1355 As we characterized Supreme Court concluded that this case in I: “may neither issue requiring directives The Court concluded this result did not particular problems, States to address nor run afoul [of] Tenth Amendment command the States’ ... officers to admin- because it did not seek to control or ister or enforce a federal regulatory pro- influence the manner which States gram.” 521 U.S. at 117 S.Ct. 2365 regulate private parties simply but was (finding a federal law requiring state offi- consequence inevitable of regulating cers to conduct background checks on activity. cases, a state In subsequent spective gun owners to commandeer the explained Court regulation in states in violation of the Tenth Amend- permissible Baker was simply because it ment).

subjected a State to legislation the same 2. PASPA Not

applicable private Does Violate Anti-Com- parties. mandeering Principles (internal 730 F.3d at quota- omitted). Later, tion marks and citations We continue to view PASPA’s Condon, Reno v. upheld Court as more akin to those laws not rest on F.E.R.C., Baker, terchangeable, our decision did Hodel, upheld to excise Today, we.choose those discussion. Reno, distinguishable from prior opinion from our in New that discussion Court down struck clear, unnecessary To be a state’s articulation of dicta. Our and Printz. York selectively prohibition remove a anti- decision to not violate does way which PASPA in per- in a manner that on wagering refine- warrants commandeering principles activity to missively wagering in which the channels ment, however, way given is, in operators particular and locations es- to skirt PASPA attempted 2014 Law sence, under PASPA. in this “authorization” arguments Appellants’ the thrust a However, that such our determination appeal. certain repeal selective anti-com reopen attempt In to an under PASPA to amounts authorization previously decid question we mandeering not that states are afforded does not mean rely certain ed, creatively Appellants room under PASPA to craft sufficient I. In was used Christie language that policies. their own un a PASPA for declaration pressing urge that our conclusion Appellants the states commandeered constitutionally I does not unconsti- Christie that PASPA characterized Appellants in Christie tutionally the states rested affirma commandeer the states to requiring PASPA as to allows states on our view that PASPA against sports keep prohibition tively many potential books, among be different they “choos[e] lest on their wagering that do not wagering policies authorized found to have authoriza- licensing include or affirmative prohibition. by repealing Br. 29. This Appellants’ the State.” posi tion opined Appellants’ response, we not command correct. PASPA does be is equivalence on a false tion “rest[ed] actions, it authorization,” to affirmative implying states take repeal tween binary a coercive choice. present 730 does not an authorization. repeal is not I that PASPA Christie Appellants reasoning now Our Before us F.3d at 233. the states remains not commandeer does [in /] held urge Court “[t]his be unshaken. precisely , that PASPA is constitutional to to permits it States elect cause 2014 Law as characterize the Appellants even if prohibit sports wagering, affirma space in the PASPA af- a lawful exercise unlawful.” authorizing it would be tively policy. to create their own fords states original). (emphasis Br. 22 Appellants’ beyond a options They argue that without effect, <cWetold saying, are Appellants ban on complete or a complete repeal repeal cannot you legislature so”—if the repeal partial as the sports wagering, such attempted it Jersey’s as prohibition runs afoul of PASPA pursued, Law, required in the 2014 then to do argu- This anti-commandeering principles. on the keep affirmatively to specific That a broadly. sweeps ment too unconstitutionally com books, and PASPA Jersey chose repeal which New partial reject argu the states. We mandeers not valid under 2014 Law is pursue ment. possibility preclude does not PASPA muster. may pass options .in that other said, we view our discussion That given which a relationship be- issue of extent regarding I authorization, in a vac- “authorization” to would constitute “repeal” and an tween us, uum, specifi- it was not is not we before have too facile. While considered been However, as I. in Christie cally in- before us are repeal and authorization whether argument Leagues noted oral before require does not or coerce the court, states to lift a partial finger they the en banc not all are not re- repeals — laws, quired pass instance, to take title to equal. are created For a state’s anything, checks, background to conduct partial repeal sports wagering of a ban to expend any funds, any way or to in wagers allow de minimis between friends enforce They federal law. are not even family nearly type would not have required, like the states were effect that we find in the F.E.R.C., expend resources consider- not, however, 2014 Law. We need articu- ing federal regulatory regimes, let alone whereby partial repeal late a line aof adopt them. Simply put, we discern in sports wagering ban amounts to an author- requiring PASPA no directives ization under if indeed such a line particular States to address problems It could be drawn. is sufficient to conclude and no commands to the States’ officers overstepped the 2014 Law it. to administer or regu- enforce a federal Appellants latory seize on the District program. Court’s interpretation erroneous of Christie I’s (internal 730 F.3d at 231 quotation marks anti-commandeering analysis namely, — omitted) (emphasis alterations in origi- presents that PASPA states with a strict nal). simply, Put impose PASPA does not binary repeal choice between total requirement coercive either-or or affirma- keeping complete ban on their books—to tive command. again urge once that if PASPA commands We will not allow Appellants to boot- choice, such a it comparable then to the strap already questions decided of PAS- First, challenged law in New York. unlike PA’s constitutionality onto our determina- provision take-title included in the tion that the 2014 Law violates PASPA. York, statute at issue New PASPA’s reject We the notion that presents text present does not states with a coer- states with a binary coercive choice or adopt cive choice to program. federal To conclude, affirmative command and as we interpret require PASPA to such a coer- I, did Christie that it does not unconsti- cive choice something is to read into the tutionally commandeer the states. simply statute that is not there. Second, distinguish- PASPA is further IV. Conclusion able from the law at issue in York The 2014 Law violates PASPA because require because it does not states to take by sports gambling. authorizes We York, any action. In continue to find PASPA constitutional. We Court held that a that required federal law will affirm. states to regulatory pro- enact a federal gram or take title to radioactive waste at FUENTES, RESTREPO, joined by generators behest “crossed the line Judges, dissenting: Circuit distinguishing encouragement from coer- cion.” 505 U.S. at 112 S.Ct. 2408. question November York, Unlike the law at issue New PAS- whether to sports betting allow PA by includes no coercive direction Jersey went before 2-1 By the electorate. government. federal previously As we con- margin, passed voters a refer- I, cluded Christie PASPA does not com- endum to amend the New Constitu- mand states to take steps: Jersey Legislature affirmative tion to allow the New satisfy adhering to betting.1 Ac- its constituents while sports law” “authorize I our decision in Christie are still in viola- enacted Legislature cordingly, Law”). (“2012 According majority, tion of PASPA. to the Act Sports Wagering Law, nature of Repeal the “selective” Leagues challenged Sports “authorizing by law” a the Professional amounts to it violated claiming is, wagering scheme. That because the Protection Act’s Sports Amateur (“PASPA”) “author- State retained certain restrictions on on states majority the au- betting.2 sports betting, In Christie law” izing] infers agree law. I cannot with this Leagues and thorization agreed Sports with the we interpretation thus of PASPA. violated and held that the Law explained, by PASPA. We preempted was ways— the states in six PASPA restricts however, free to that New was advertise, “sponsor, operate, a state cannot betting prohibitions it repeal the sports license, promote, or authorize law or place. rejected the ar- already had We one of compact” sports betting.4 that a gument “by includes these six restrictions authoriz- betting equivalent “authorize.” None of the other re- law” is the mat- by sports betting. When ing say anything strictions about how the Court, brought to the ter was Thus, I states are restricted. believe senti- General echoed that same Solicitor gave special this restriction a that, ment, does not even stating “PASPA by meaning a state’s “authorization] —that in Jersey place to leave obligate New merely sports betting law” of cannot be against sports gam- prohibitions state-law inferred, requires specific leg- but rather a adopt prior it had chosen to bling that affirmatively islative enactment allows contrary, To the New PASPA’s enactment. people sports. of the state to bet on prohibitions those Jersey repeal is free reading Any interpretation other would be in part.”3 in whole or “by law” out of the statute. phrase just that. In Jersey New did So Indeed, exactly we stated this Christ- cer- Jersey Legislature repealed prohibits I—that all PASPA is “the ie betting prohibitions tain at casinos gam- law’ of ‘authoriz[ation] affirmative City in Atlantic and gambling and houses Thus, explained, we noth- bling schemes.”5 (“2014 racetracks" the State horse Jersey from ing repealing prevented the 2012 Repeal”). repealing In addition to since, “in sports betting prohibitions, full, Repeal stripped Law in the 2014 prohibi- an affirmative reality, the lack of bet- Jersey any involvement activity not mean it is tion of an does essence, In ting, regulatory or otherwise. by law.”6 As we affirmatively authorized prohi- Repeal previous rendered noted, needed to en- Legislature “that the sports betting bitions on non-existent. any itself belies conten- Law] act the [2012 Jersey’s repeal of New today tion that the mere majority But the concludes sufficient to sports gambling on was Jersey Legislature’s efforts to ban the New Const, added). 3702(1) IV, 7, ¶ 2(D). (emphasis § 4. 28 U.S.C. 1. N.J. art. §3702(1). U.S.C. 2. See 28 I, (alteration in F.3d at 232 5. Christie original). Opp’n at 3. Br. for the United States Ass’n, Collegiate v. Nat'l Athletic Nos. Christie 13-967, 13-979, (U.S. 6. Id. May and 13-980 2014). ”7 statute, Legislature repealed, repealed ‘authorize law.’ The statute is “the [it] effect, meaningful regard operative distinction be- to its is consid- itself “saw sports wager- if it If repealing tween the ban ered as had never existed.”12 law, ing undermining repealed it if it statute is treated as never existed, that the alone contention amendment a partially repealed statute is affirmatively was sufficient to authorize repealed treated as if the sections never sports wagering was re- then, [2012 Law] Repeal, simply existed.13 The 2014 —the short, explained we that there quired.”8 returns New to the state it was in equivalence false between it first before enacted those authorization. words, sports gambling. In other after never repeal, it is as if New Repeal, With the 2014 the New casinos, prohibited sports wagering at Legislature thought did what it it was houses, gambling horse racetracks. permitted reading to do under our of PAS- Therefore, locations, respect to those I. however, majority, PA in governing sports wager- there are no laws Repeal maintains that the 2014 “author- Contrary majority’s ing. position, to the casinos, sports wagering at izes” permission engage such an activi- houses, simply and horse racetracks be- affirmatively granted virtue of ty is not sports betting prohibitions cause other re- being prohibited elsewhere. majority, main in place.9 According to the Law, Jersey’s “[a]bsent position, majority To bolster its re- myriad prohibiting sports gambling laws in jects reasoning stating our apply would to the casinos and race- I Christie we the extent that “[t]o tracks,” provides and thus “the 2014 Law position repeal took the that a cannot con- other-, the authorization for conduct that is authorization, reject stitute we now clearly completely prohib- wise legally and maintain, reasoning.”14 I continue to how- majority ited.”10But I believe the is mis- ever, is not an affir- Repeal that the 2014 partial taken to of a impact repeal. as merely mative authorization law. It a is not, cannot, A repeal “abrogation repeal is defined as an of does and authorize —it an existing by legislative anything. act.”11When law See, McCardle, 506, (alteration original). e.g., parte 7. Id. in 13. Ex 514, 506, (1868) 7 L.Ed. 264 Wall. ('‘[W]hen legislature repealed, an act of the is 8. Id. it must be considered ... as if it never exist- ed.”); USAir,Inc., v. 818 F.2d Anderson repeal apply- 9. I refer to the of (D.C. 1987) ("Common Cir. sense dictates casinos, houses, ing gambling to and horse repeal a deletion. This court means racetracks, understanding with the that the engage pure speculation were would in it to repeal applies to casinos and houses State, otherwise.”); Kemp by Wright hold v. City in Atlantic and horse racetracks in New Cty. Burlington, 147 N.J. 687 A.2d of betting for those over on New ("In (1997) gener- State it is the Jersey collegiate any collegiate teams or com- repealed a and al rule that where statute is petition occurring Jersey. in New saving[s] general there is no clause or a stat- limiting repeal, ute the effect of the the re- Maj. Op. 10. 396. statute, pealed regard operative ef- to its fect, though it had never is considered as (8th Dictionary 11. Black's Law ed. existed, except as to matters and transactions 2007). closed.”). passed and Maj. Op. 12. 73 Am. Jur. 2d Statutes 14. 396-97. view, comprehensive tracks in the State. This majority’s position my

In “selectively grants per- regime required supervision close State Repeal the 2014 sports of those engage regulation wagering entities to and mission to certain instance, pools. required incorrect. For the 2012 Law simply is sports gambling”15 permission any entity “sports that wished to a explicit grant is no There operate acquire “sports pool li- any person entity pool lounge” Repeal for Rather, so, a gambling. prospective operator cense.” To do engage $50,000 self-executing deregula- required pay application is a Repeal existing prohibi- fee, tory repeals Gaming measure that secure Division of Enforce- (“DGE”) sports betting regulations approval tions and of all internal con- ment any trols, to abdicate requires employees the State and ensure of its betting.16 in sports or involvement directly control who were to be involved why partial majority explain fails to wagering obtained individual licenses from grant permis- equivalent and the Control the DGE Casino Commis- law) sports betting. (by engage (“CCC”). sion addition, betting re- sion to, gime required among entities other exactly what the Suppose the State did things, submit extensive documentation to it could have done: re- majority suggests DGE, subject adopt new “house” rules completely sports betting- prohibi- peal conform, approval, to DGE to DGE circumstance, sports betting tions. In that This, course, standards. violated PASPA anywhere in the State and could occur way: in the most basic devel- age, no restrictions as to there would be oped an intricate scheme that both “au- location, wager a bettor could whether law” and thorize[d] “license[d]” involving local teams. Would the games gambling. Repeal The 2014 eliminated this if it later violate PASPA enacted Moreover, agencies entire all state scheme. regarding age require- limited restrictions jurisdiction over state casinos and places wagering where could ments racetracks, CCC, and the such as the DGE Surely reading no conceivable occur? betting stripped any sports were over- from preclude would a state re- sight. stricting sports wagering this scenario. to the same Repeal

Yet the 2014 comes majority falters when it The likewise result. Repeal excep- to the analogizes the 2014 offered to New Congress originally tion fails to illustrate how majority

The also exception stated that Jersey in 1992. The Repeal sports wagering results in the 2014 betting, gam- to “a apply did not there is effec- PASPA 'pursuant to state law when ... conducted bling, wagering scheme tively as to several loca- place no law casinos[,] created, ... to the tions, exclusively no but no scheme state casino any ... commercial comparison A careful with extent involvement. ... operation was gaming The 2012 Law scheme the 2012 Law is instructive. 10-year period” before Jersey’s sports wager- throughout on lifted New ban Setting aside scheme for PASPA was enacted.17 ing licensing and created a the 2014 obvious distinction between wagering pools at casinos and race- most sports regulatory au- 15. Id. and outside of DGE’s control App. thority.” Repeal, example, "[the the 2014 16. For under ("DGE”) Gaming ] Division of Enforcement 3704(a)(3)(B). 17. 28 U.S.C. wagering sports to be 'non- now considers beyond gambling activity’ ... that is DGE’s exception gressional command that States must Repeal and the 1992 —that 2014 Re- contemplated a scheme that the on because wagering sporting hibit events majority not authorize —the peal does “authorizing] it forbids the States from “If mark when it states: Con- misses the activity, I dissented from the law” such sports gam- gress perceived had not holding in I that PASPA was a Christie Jersey’s casinos would violate bling New authority. congressional valid exercise of PASPA, then it would not have needed to Collegiate National Athletic Ass’n v. Gov- Jersey exception.”18 insert the New Con- (Christie I), Jersey ernor New 730 F.3d however, not, perceive, or intend gress did 2013) (3d (Vanaskie, J., 208, 241-51 Cir. for, sports wagering in casinos to private majority dissenting). My colleagues Instead, Congress prohib- violate PASPA. disagreed my I conclusion Christie sports wagering pursuant ited undertaken they believed that States had the because Repeal might That the 2014 to state law. option repealing existing bans on an increase in the amount of bring about PASPA, betting. upholding Id. at 232. In wagering in private, legal sports New Jer- rejected Jersey’s argument I moment, sey majority’s is of no and the repeal sports betting that a of its on ban possibility misplaced. reliance on such a is effectively would viewed as “author- be majority wrong in a is also more activity. I izing] law” this de- way. exception Congress fundamental Jersey’s “attempt clared that New to read exactly that: an offered to New requirement into PASPA the states exception ordinary prohibitions to the affirmatively keep must a ban on say, exception, PASPA. That is to with this their books rests on false “sponsor[ed], oper- could have equivalence repeal between and authoriza- ated, advertised, licensed, promoted, equiv- tion.” Id. at 233.1 viewed “false compact” sports law or authorized skepti- alence” assertion with considerable Repeal, wagering. Under (“[I]t certainly n. open cism. Id. course, cannot and does not to debate whether a state’s of ban aim things. to do of these sports gambling on would be akin to that partial I how a re- Because do not see ‘authorizing’ gambling sporting state’s peal to au- is tantamount ”). My skepticism events.... is validated thorizing by sports wagering law a scheme majority majority by today’s opinion. The respectfully in violation of I dis- dodges the conclusion that PAS- inevitable sent. conscripts prohibit PA the States to wa- gering suggesting that some VANASKIE, Judge, dissenting. Circuit partial repeal sports gam- of the ban on authority “has the un- While bling would not be tantamount to authori- pass requiring der the laws Constitution zation of gambling. acts, prohibiting or certain lacks the majority Implicit today’s opinion and power directly re- compel States to I premise is the quire prohibit those acts.” New York v. authority to decree that States States, 144, 166, lacks the

United S.Ct. (1992) prohibit sports wagering, must and so both (emphasis 120 L.Ed.2d 120 added). room for majorities find some undefined Concluding that the Professional (“PAS- partial repeals existing to enact Sports and Amateur Protection Act States PA”), the author seq., sports gambling. 3701 et was a con- bans on While U.S.C. Maj. Op. 18. Jersey’s I finds that New par-

of Christie words requires that keep any states equiva- tial at issue here is not the in place.” law 730 F.3d at 232. authorizing wagering lent of on events, today’s sporting majority concludes A. shifting approach otherwise. This line to a Christie I “[r]ecogniz[ed] the importance exercise of its sovereign authority State’s of the affirmative/negative command dis principle is untenable. The bedrock of fed- tinction,” “agree[d] Jersey] with [New Congress may compel eralism that that the affirmative act requirement, if not require prohibit States to certain activi- properly applied, may permit Congress to ties cannot be evaded the false asser- ‘accomplish exactly what the commandeer tion that affords the States some ing doctrine prohibits’ by stopping the undefined when it options comes to ” states from ‘repealing an existing law.’ I

wagering. Because believe that PASPA 730 F.3d at 232 (quoting Conant v. Wal compel was intended to the States to ters, (9th 2002) 309 F.3d Cir. events, wagering sporting hibit on it can- (Kozinski, J., I, concurring)). Christie how scrutiny. not survive constitutional Accord- ever, discounted concerns regarding PAS- I, ingly, as I did in I dissent. PA’s requirement affirmative act because Christie I not read pro “d[id] PASPA to I. hibit New repealing from its ban on According majority, to the “a state’s de- sports wagering.” Id. According to Christ selectively cision to remove a ie PASPA is constitutional because sports wagering in a that per- manner “[n]othing in [PASPA’s] words requires missively wagering activity channels that the keep any states law in place.” Id. particular is, operators locations or in es- This premise conclusion formed the for the sence, Maj. ‘authorization’ under PASPA.” conclusion in Christie I that PASPA Op., majority at 401. The also claims “a passed constitutional muster. partial repeal state’s of a sports wagering Remarkably, majority chooses to ban to wagers allow de minimis between “excise that prior discussion from our opin family friends and nearly would not have unnecessary ion as Maj. Op., dicta.” at 401. type effect that we find case, however, This cannot be the because Thus, in the 2014 Law.” Id. at 402. accord- that discussion was the cornerstone of the ing to majority, the 2014 Law is a holding McDonald, in Christie I. See In re partial repeal is foreclosed (3d 2000) (“Chief 205 F.3d Cir. but options may pass “other muster” be- Judge Posner has aptly defined dictum as partial cause “not all repeals are created ‘a in judicial opinion statement that could equal.” Id. have seriously been deleted without im Noticeably, majority does not ex- pairing analytical foundations of the plain why partial repeals all are not creat- holding that, being peripheral, may not — equal ed or explain distinguishes what have received the full and careful consider 2014 Law from partial repeals those ” ation of the court that uttered it.’ (quoting pass muster. To further complicate mat- Am. Home Prods. Corp., Sarnoffv. ters, majority rely continues to (7th 1986))). 1075, 1084 F.2d Cir. I, Christie which did “not read PASPA to prohibit Indeed, from repealing its to rationalize its conclusion in sports ban on wagering” I, and informed Christie the I majority Christie had to that “[n]othing expressly reject [PASPA’s] the notion that when a an commands take affir- repeal affirmative rective that states to “choose[s] state gambling, prohibits of that is the mative action and one that states sports prohibition and ‘authorizing’ activity, exercising sovereignty that from their is illuso- same as (Vanaskie, J., repealing pro ry.” precludes PASPA 730 F.3d at 245 concur- therefore it just ring as affir The gambling part dissenting part). on bars and hibitions at 730 F.3d 232. This decision Christie I a distinction matively licensing it.” to base peripheral I not affirmative for action aspect Christie was between commands I because Christie and “untena- holding the ultimate affirmative was ble,” Jersey] [New commands to specifically “agree[d] because “affirmative requirement, engage act if not can be re- that the affirmative certain conduct Congress applied, permit phrased prohibition against as a not en- properly ‘accomplish exactly gaging explained, what commandeer in that conduct.” I Id. As ing stopping basing illusory doctrine I on such an dis- prohibits’ Christie ” law.’ ‘repealing existing from tinction raises constitutional concerns be- states (Ko Conant, F.3d at (quoting interpretation cause of federalism “[a]n Id. J., Thus, zinski, concurring)). permits nega- to resolve that principles congressional it, necessarily I Christie tive to state will governments the issue before commands “full give and careful had to this issue eviscerate the constitutional lines drawn” the court.” In re Mc the Supreme consideration of Court. Id.

Donald, (quoting Sarnoff, at 612 F.3d B. 1084). F.2d at After a like New Christie state full giving the issue its and careful “repeal at least had the choice either

consideration, explained I that the Christie ban,” or, other wagering “[o]n “repeal” that a could be the same as notion keep complete hand ... ban nu- “problematic an “authorization” was (majority opinion). at 233 gambling.” Id. 232; respects.” merous 730 F.3d see also majority I found that (“Most ignores it basically, that PASPA id. choice not too because it left was coercive ‘authorizing by speaks law’ a “much for the to make their room states scheme.”). I gambling Christie did “not see it to policy” own and left “to decide having place governing how no law it priority how much of a law enforcement sports wagering is the same what sports gambling, wants to make of I recognized law.” Id. Christie will exact contours affirmative distinction between commands be.” Id. explained actions prohibitions, equivalence there “a false be- majority it clear that Today’s makes tween and authorization.” Id. at 233. “much not leave a State does Thus, statutory as a construc- matter Indeed, room” at all. it is evident tion, and to “a series of avoid constitutional prohibitions on States must leave I problems,” specifically held A re- regulate their citizens. books distinguish if the Court did between view of the four anti-com- Court commands) (affirmative “au- “repeals” ma- mandeering cases referenced (affirmative prohibitions), thorizations” jority illuminating. the term out ‘by

Court would lav/ “read[ ] Id. at 233. [PASPA].” cases anti-commandeering two opinion I dissented from that because first Hodel v. majority reviews are “any distinction between federal di-

409 Virginia Mining & Reclamation 112 Supreme S.Ct. 2408. The Court reiter- Surface Ass’n, Inc., 264, 101 2352, 452 U.S. S.Ct. 69 ated point States, Printz v. United (1981), 1 that, L.Ed.2d and F.E.R.C. v. Missis explaining “[b]y forcing govern- state 742, 2126, sippi, 456 U.S. 102 S.Ct. 72 ments to absorb the financial burden of (1982). majority points L.Ed.2d 532 As the implementing a federal regulatory pro- out, “permissible these cases address regu gram, Congress Members of can take pre-emptible Maj. lation in a Op., field.” at credit for ‘solving’ problems without hav- eases, analyzing however, In ing 399. these to ask their pay constituents to for the majority overlooks the main rule an solutions with higher federal taxes.” 521 nounced Supreme 898, 930, Court in situa 2365, U.S. 117 S.Ct. 138 L.Ed.2d (1997). tions where there is an exercise of legisla Thus, 914 States given must be authority tive under the Commerce Clause choice Supreme because the Court is con- Congress preempts or where an area with cerned that “it be state officials who legislation federal within legislative will bear the public brunt of disapproval, situations, power. In such States have a while the federal officials who devised the they may choice: comply either regulatory program may remain insulated legislation federal or the Federal Govern from the electoral ramifications of their carry ment will legislation into York, decision.” 169, 505 U.S. at effect. S.Ct. 2408. Hodel, This rule was announced in where the explained Court As the majority explains, while “PAS- does not ... eompl[y] “[i]f State wish to provisions PA’s and its reach are contro- with the Act and implementing regula- (and, unwise).... versial might say, some tions, the regulatory burden will be duty-bound we are interpret the text of full borne the Federal Government.” 452 the law as it.” Maj. Op., wrote at 288, U.S. at (emphasis S.Ct. 2352 add- 396. majority Because the has excised the ed). The same theme repeated itself in distinction repeal between a and an au- F.E.R.C., as the Supreme thorization, Court focused majority makes clear “the put choice to the written, States —that of ei- that under PASPA no abandoning regulation ther of the al- field kind will evade the command that no together considering the federal stan- ... State “shall authorize law” 766, dards.” 456 U.S. at 102 S.Ct. 2126 gambling. In U.S.C. 3702. the face of added). (emphasis cases, directive, both the Su- congressional such a case-by- “no preme Court was clear that there must weighing be case of the burdens or benefits is some choice for the states to make necessary; because such commands are fundamen- without it “the accountability tally of both state incompatible with our constitutional and federal officials system Printz, is diminished.” New sovereignty.” of dual States, 144, York v. 168, 935,117 United 505 U.S. U.S. S.Ct. 2365. 2408, (1992).

112 S.Ct. 120 L.Ed.2d 120

Indeed, States, in New York v. United explained the Court that a State’s view This leads to the other two anti-eom- legislation “can always pre-empted be un- mandeering cases majori- reviewed der the Supremacy Baker, Clause if it is contrary ty: 505, South Carolina v. view, to the 1355, national but in (1988), such a case ... 108 S.Ct. 99 L.Ed.2d 592 it will be federal Condon, officials that suffer the Reno v. U.S. S.Ct. consequences (2000). if the decision turns out to 145 L.Ed.2d majority be unpopular.” detrimental or explains Id. at permissi- these cases address

410 in Baker at issue the statutes Maj. Op., Unlike action.” on state “prohibitions

ble Reno, however, to con- PASPA seeks however, majority seems the Again, at 399. the manner in which influence trol and factor for each animating the to overlook Through parties. regulate private States Reno In both Baker opinions. of these PASPA, unambiguously com- Congress permis- explained Supreme the Court ... a unlawful for shall be “[i]t mands that activi- regulated sible ... authorize entity to governmental has never sanc- Court ties. Supreme § By 3702. gambling. 28 U.S.C. law” sports sought regulations that tioned statutes or command, has set an issuing manner in the control or influence to to be “mandatory agenda impermissible -privateparties. regulate which States legislative in all events state considered Baker, Supreme the example, For decisionmakers.” administrative or Internal challenge to the Court reviewed F.E.R.C., 769, 2126. 102 S.Ct. at U.S. 310(b)(1) §of enactment Revenue Code’s Responsibili and Fiscal Equity the Tax 3. 1982, prohibited States

ty Act of which majority bearer bonds. of the is issuing unregistered logical extension from case, passing from prevents States reviewing that PASPA Notably, when repeal existing gambling laws. it laws to found that did specifically Court notes, majority correctly “[t]he As the that the possibility “the to need address means, alia, inter em- ‘[t]o ‘authorize’ word might set limits some Tenth Amendment act,’ authority to right or give power; compel Congress’ power States done in thing to be permit or ‘[t]o of federal interests” on behalf regulate ” Maj. Op., (quoting at Black’s future.’ that the found comman the Court because 1990)) (foot- (6th Dictionary 133 Ed. Law “in FERC inappli deering [were] concerns omitted). authorization in- Because note Baker, at § 485 U.S. cable to 310.” done, thing to be it permitting a cludes dis Importantly, Court S.Ct. 1355. prevents state that PASPA also follows § from statute tinguished of ex- stopping from officials enforcement F.E.R.C. because the Court found must regulate gambling laws. States isting activities; it state regulates “Section Co- by Congress. prioritized conduct Cf. FERC, not, seek as did the statute does (Kozinski, J., concur- nant, at 646 F.3d the manner in which to control influence repeal- (“[P]reventing the state from ring) parties.” Id. at regulate private States from is no different existing law ing an Reno, Similarly, in 1355. 108 S.Ct. case, one; in a new either pass it to forcing did not a statute that Court addressed regulate con- being forced to is state (1) sovereign “the States their require unregulated.”). it to leave prefers duct that (2) citizens,” regulate their own capacity any laws or ... to enact Legislature “the enjoin that civil It true actions (3) officials to assist “state regulations,” be commenced “may of PASPA violation reg of federal statutes in the of the enforcement United appropriate district court at individuals.” of the ulating private Attorney General States these But It was 3703. 120 S.Ct. 28 U.S.C. States.” United that the United States hardly that the Court found can be said bases regulatory the full in Reno Attorney bears General statute issue “consistent because, Con- through burden principles enunciat constitutional the States to effectively commands gress York Printz.” Id. ed existing gambling holding and enforce cornerstone of its has maintain been eroded by the prohibitions.1 majority, which has excised Christie regarding Ps discussion “a equiva- false is a that directs States statute lence between and an repeal authoriza- by dictating the gambling to maintain laws Notably, tion.” Id. at 233. that discussion must enforce a manner which States I included Christie to avoid “a law. The Court has never federal problems.” series of constitutional Id. To- Congress’ legislative power to considered day’s majority it clear passing makes that expansive. Prigg so v. Com. be See a law so that is no place there law in 539, 541, Pennsylvania, 41 16 Pet. U.S. 10 governing sports wagering is the same as (1842) (“It might L.Ed. 1060 well be Maj. it Op., law. See at 396 exercise of deemed unconstitutional (“The means, alia, word ‘authorize’ inter to power interpretation, insist empower; give right ‘[t]o to or authority provide carry are bound to means to states act,’ thing to to permit ‘[t]o be done in gov effect the the national into duties of ”) (citation the future.’ and footnote omit- ernment, nowhere delegated intrusted ted). constitution”); F.E.R.C., them to (“[T]his 761-62, U.S. at 102 S.Ct. I dissented in I because the explicitly Court never has sanctioned repeal distinction between and authoriza- promul federal command to the States to Today’s tion is majority opin- unworkable. ”) gate regulations and enforce laws my ion validates position: PASPA leaves Brown, E.P.A. (citing v. the States with no choice. While Christie I (1977)); S.Ct. L.Ed.2d gave at least option the States the of re- York, 178, 112 505 U.S. at S.Ct. 2408 pealing, part, existing whole or in bans (“Where a sufficiently federal interest events, on sporting today’s to strong Congress legislate, cause it they decision tells the States must directly; conscript must do so maintain an anti-sports wagering scheme. governments agents.”); state as its Nat’l doctrine, anti-commandeering essen- — Sebelius, Indep. Bus. v. Fed’n U.S. protect sovereignty, tial to prohibits -, 2602, 183 132 S.Ct. L.Ed.2d 450 Congress from compelling States to (“[T]he (2012) (plurality opinion) Constitu private activity. hibit such I Accordingly, has tion never been understood to confer dissent. ability upon require the- govern according Congress’ States York, (quoting

instructions.” U.S. 162, 112 2408)). S.Ct.

II. apparent

It is now that Christie I was finding “nothing

incorrect [PAS- requires

PA’s] words the states keep (first place.” law in F.3d at 232 added). third emphasis respect With the doctrinal anchors existing authorizing sports wagering, 1. A refusal to enforce laws would be States would be existing same laws: the

Case Details

Case Name: National Collegiate Athletic Ass'n v. Governor of New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 11, 2016

Citation: 832 F.3d 389

Docket Number: 14-4546, 14-4568, and 14-4569

Court Abbreviation: 3rd Cir.