Brief filed today supports the constitutionality of PASPA
As indicated earlier, the federal Department of Justice has intervened in the New Jersey sports betting case and filed a brief in support of PASPA. You can download and read the DOJ’s memorandum here. Kudos to gaming attorney Griffan Finan for tweeting that the brief had been filed and is available on PACER.
The DOJ rejects the Tenth Amendment argument that PASPA ‘commandeers’ the states inasmuch as the law doesn’t affirmatively require the states to do anything; it prevents them from doing something, e.g., licensing sports betting. Most important, the federal government believes that PASPA is firmly rooted in the Commerce Clause of Article I, section 8, clause 3 of the Constitution (“The Congress shall have power … To regulate Commerce with forgeign Nations, and among the several States …”) because sports gambling has a substantial effect on interstate commerce that Congress may regulate. The Commerce Power is the best line of argument for the feds. I think the key question to resolve is whether Congress may effectively discriminate among the states through the grandfathering of certain states’ sports betting regimes under PASPA. Unsurprisingly, the DOJ believes there is no requirement for uniformity among the states in Congress’s exercise of its Commerce Clause authority. Then again, perhaps my — and the DOJ’s — belief in the strength of the Commerce Clause is outdated. Between 1937 and 1995, not one federal law was declared unconstitutional as exceeding the scope of Congress’s Commerce Clause authority (thanks for that, Erwin Chemerinsky). But since United States v. Lopez, the Commerce Power might not have the potency it once had.
As both Griffan and Professor Ryan Rodenberg were discussing earlier today, the federal government seems to have left its earlier concerns about PASPA’s constitutionality out of its brief. (As is the Department’s right. Griffan and Prof. Rodenberg noted that the Department’s position on PASPA — and perhaps especially its position on PASPA from more than 20 years ago — can change, and its views then didn’t and don’t have the force of law. Irrespective of what its concerns were before the legislation was passed, once enacted, it’s clearly within the DOJ’s remit to stick up for the law of the land, or most of the laws, anyway.) One might think it’s a good bet that New Jersey state officials will bring up those earlier DOJ arguments in their reply, however.