WASHINGTON — American democracy’s comic opera frequently features collaborations of “bootleggers and Baptists.” These entertainments are so named because during Prohibition, Baptists thought banning Demon Rum would improve public morals (oh, well) and bootleggers favored the ban because it made scarce a commodity for which there was a demand that they could profitably supply. On Monday, the Supreme Court will listen — with, one hopes, a mixture of bemusement and amusement — to arguments concerning another prohibition.
This one concerns a law banning what many millions of Americans do anyway — illegally betting between $150 billion and $400 billion annually on sports events. Illegality prevents precise knowledge, but if the sum is just $150 billion, that sum exceeds the combined revenues of Microsoft, Goldman Sachs and McDonald’s.
The court’s nine fine minds need not and should not trouble themselves with the question of whether this particular prohibition is sensible. They should, however, defend federalism by telling the national government to stop telling state governments what laws they cannot change.
In 1992, U.S Sen. Bill Bradley, D-N.J., a former college and NBA basketball star who worried about the possible corrupting effects of gambling on sports, authored the Professional and Amateur Sports Protection Act. It says no government entity may “authorize” wagering on sporting events. This has not deterred the many millions of Americans who since 1992 have wagered trillions on such events.
In a 2011 referendum, New Jersey voters authorized their Legislature to do what it did in 2014: partially legalize sports betting by repealing a law prohibiting such wagering at racetracks and casinos. The NCAA and professional sports leagues objected, saying that by “authorizing” such gambling New Jersey was violating PASPA. A federal circuit court agreed, rejecting the state’s argument that PASPA violates the 10th Amendment. The court said New Jersey’s partial repeal affirmatively authorized sports wagering by directing it to particular venues. The court argued that PASPA did not unconstitutionally “commandeer” state resources because it did not compel New Jersey to take a particular action or devote resources to administering federal choices.
An amicus brief supporting New Jersey argues that federalism precludes the national government from forbidding a state to pass a law “that neither violates the Constitution nor addresses any matter pre-empted by federal law.” Congress has not chosen, as it could, to prohibit sports betting; instead, Congress has paralyzed states, preventing them from changing laws that such betting violates, and effectively commandeering state resources to enforce a policy that the state dislikes.
As currently construed, PASPA requires states to disregard an emerging consensus: In 1993, 56 percent of Americans disapproved of legalizing sports betting. Now, 55 percent approve. The professional sports leagues are recalibrating their thinking, partly because legalizing and regulating sports betting would make it easier to detect suspicious surges of bets that might indicate rigged competition, and partly because wagering expands and intensifies fans’ engagement. For example, bettors watch more NFL games, and watch for longer, than non-bettors.
Besides, the NFL is moving the Oakland Raiders to a city built by gambling, Las Vegas, where an NHL franchise has just begun its first season. The outcome in the Supreme Court is difficult to predict. It is, however, legal to bet on it.
Writes for The Washington Post.