Intervening DOJ

by , Feb 1, 2013 | 6:20 pm

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 Then again, perhaps my — and the DOJ’s — belief in the strength of the Commerce Clause is outdated.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.

4 Comments to “Intervening DOJ”

  1. TA Miller

    The DOJ filed a strictly ABC brief today regarding PASPA, citing the
    DPPA case as precedent for Congress to commandeer States prohibitively,
    so long as they don’t require States to take any action to affirm a
    Federal regulation.

    The Drivers Privacy Protection Act told States that they didn’t have
    right to violate their own citizens privacy by selling their personal
    information, nor did any private companies or citizens, therefore it
    isn’t a violation of any State rights to forbid them from doing
    something what was never within their domain.

    States do however have a right to regulate gambling by their citizens
    within their borders, as the high court said in Matter of Heff over two
    centuries ago:


    In the United States, there is a dual system of government, national
    and state, each of which is supreme within its own domain, and it is
    one of the chief functions of this Court to preserve the balance between

    The general police power is reserved to the states subject to the
    limitation that it may not trespass on the rights and powers vested in
    the national government.

    The regulation of the sale of intoxicating liquors is within the power of the state

    Like the sale of intoxicating liquors, gambling regulation falls
    to the general police power of the State, so commanding the States,
    either prohibitively or affirmatively, in this area is a direct invasion
    of State Sovereignty.

    When the Federal government wanted to prohibit the sale of intoxicating
    liquors, it did so by amending the Constitution, because short of a
    constitutional amendment they had no authority to pass such a

    Congress could prohibit betting on sports if the Act extended to private
    citizens – if betting itself on sports was made illegal (much like a
    controlled substance), then the prohibition on States authorizing it
    would pass constitutional muster.

    But with PASPA just as with the Volstead Act, Congress did not have the
    political will to ban betting on sports (or drinking), so just as they
    did a century ago, Congress should still need to amend the Constitution
    in order to prohibit States from exercising their general police power
    over gambling.

  2. TA Miller

    A couple of people have criticized my comment via twitter and a response requires more than 140 characters.

    One said that the DOJ made no mention of commandeering in the 1991 letter, which is true, what the DOJ said in 1991 was “determinations of how to raise revenue
    have typically been left to the states.”, which is also true.

    But the reason those determinations regarding gambling revenue have traditionally been left to the States is because gambling is a public policy (moral) issue, and the very reason the US was founded as a Federation of States is to allow for different public policies regarding moral issues.

    What Hamilton in New York considered investing was consider immoral speculation by Jefferson in Virginia, so States are permitted to set their own policies with the exception being a general application statute that makes the article/activity itself illegal at the Federal level – which PASPA doesn’t do.

    Someone else commented that anti-commandeering is only a recent a reawakening of Tenth Amendment jurisprudence which is also true, but only because Congress only recently began passing legislation commanding States to enforce Federal regulations, so having allowed Congress to trample States rights in other areas they chose to draw a line in the sand.

    Now the DOJ is seizing on that line it the sand to keep the court’s attention off the elephant in the room, while PASPA may not cross the line in the sand drawn under NEW YORK, it jumped over the fence marked ‘keep off the beach’ when deciding to regulate a public policy decision reserved to the States as a general policing power.

  3. Stuart Hoegner

    I wouldn’t call them criticisms so much as observations on your Tenth Amendment thoughts.

    I suppose I’m not used to thinking of the commandeering argument outside of the relatively narrow confines of NY v. US or Printz v. US. Both of those affirmatively required various states to do something. I think the distinction drawn by the DOJ (i.e., that PASPA doesn’t require New Jersey to do anything, but only to refrain from doing something) might get some traction. As Brad Polizzano noted, an issue in the case could well be whether the commandeering interpretation of the Tenth Amendment extends to telling New Jersey it may not do something. (As you alluded to, Reno v. Condon allowed Congress to prohibit harmful commercial activity by the states. Seems a stretch to me to apply in this case, but the court may see things differently.)

    I’m very keen to see how all of this shakes out in New Jersey. I think we can both agree that it will be fascinating to watch.

  4. TA Miller

    The Tenth amendment doesn’t place the burden on the State to establish it’s rights, the burden will be on the government (and leagues) to convince the court that PASPA protects a right implied by the text of the Constitution.

    The DPPA was upheld because it protected the privacy of licensed drivers, but the right of the leagues to have their integrity protected by Congress by PASPA is no where to be found in the Constitution – and even if it were, that right would need to be protected in all States among all athletes, with no preference to States previously invested in the industry or only to professional leagues and not individual athletes.

    The DOJ wants to suggest that since PASPA doesn’t fail the commandeering test that it can’t be in violation of the Tenth Amendment, which is the logical equivalent of showing a passing grade on an entrance exam as proof of graduation.