The U.S. Supreme Court invited the acting U.S. solicitor general, Ian Gershengorn, to give his opinion on the New Jersey sports betting issue. The opinion could determine the future of the Professional and Amateur Sports Protection Act of 1992.
If Supreme Court justices grant a writ of certiorari, then Gershengorn's opinion could determine the legality of PASPA. The law was passed in 1992 with special rights for 4 US states to offer legal sports betting, while banning the practice for 46 other states. Those states were given a 1-year window to pass sports betting laws which would have been grandfathered into the bill, but no state did so.
New Jersey's Legal Challenge
Since 2011, the state of New Jersey has challenged the PASPA law. At first, New Jersey passed a referendum legalizing sportsbooks. That was challenged in 2012 by the top US sports leagues, and New Jersey lost several court battles throughout the period of 2012 to 2014.
In 2014, the New Jersey state legislature and Gov. Chris Christie repealed the legalization and not challenge PASPA directly. Instead, they would ignore land-based sports betting taking place at Monmouth Park's William Hill sportsbook. The sports leagues again challenged the gaming activity, claiming New Jersey was tacitly supporting sports betting, because the state would continue to punish illegal bookies.
Ted Olson Justification
Speaking on behalf of New Jersey in a February 2016 court hearing, former US Solicitor General Theodore Olson said the state had followed the dictates of the PASPA when it repealed the 2012 law. Olson said, "Lifting a prohibition is not an authorization."
At the time, Ted Olson said that the PASPA calls for states to do one of two things: "[PASPA] either requires states to regulate sports betting or to leave them alone." He said that is exactly what New Jersey was planning to do in October 2014, when the state was set to allow the Monmouth Park sportsbook to open.
Majorie Rendell's Opinion
That is not how the US Third Circuit Court of Appeals saw the matter when it rendered a decision in August 2016. The panel voted 10-2 against New Jersey's appeal, thus seeming to end the state's 5-year attempt to challenge federal sports gambling laws.
In rejecting New Jersey's interpretation of its sports betting repeal, U.S. Circuit Judge Majorie Rendell wrote that Chris Christie's adminiatration had provided "the authorization for conduct that is otherwise clearly and completely legally prohibited".
Julio Fuentes Dissenting Opinion
U.S. Circuit Judge Julio Fuentes wrote a dissenting opinion which said that New Jersey had operated in good faith, because it had followed the advice of the Third Circuit Court of Appeals opinion in a 2014 case. Julio Fuentes said New Jersey "did what it thought it was permitted to do".
5 States File Amicus Brief
The 10-2 decision seemed to crush the hopes of New Jersey officials hoping to strike down the PASPA. Perhaps that is not the case, though. For the US Supreme Court to call for an opinion by the Solicitor General, it shows a marked interest in the PASPA sports betting case. When asked by New Jersey to look at a previous appeal based on the same subject in 2014, the Supreme Court declined to hear the case. This is more interest than the nation's highest court has shown before.
The difference in 2017 might be that New Jersey has 4 states which have signed on to the current challenge. In an amicus brief filed with the US Supreme Court late last year, the states claimed the Professional and Amateur Sports Protection Act "blurs the lines" between federal and state authorities, and thus blurs the lines of accountability. In their opinion, the PASPA law is an example of vast federal overreach.
New Jersey's PASPA Arguments
The amicus brief accused the US Congress of using coercive statutes to impinge on states' right. The brief said, "Congress has obscured its own responsibility by forcing state governments to carry out federal policy rather than doing so itself."
The five states called the PASPA law an "unprecedented" case of federal overreach, because it trampled on states rights to choose their own gaming laws. If left unchallenged, the law meant a vast expansion of federal power which could affect the balance-of-power in many other issues. The states wrote, "If permitted to stand, the Third Circuit's decision threatens the constitutional balance of power between states and the federal government."
Thus, the stage is set for a landmark legal showdown for sports betting. New Jersey has lost 5 previous court battles on this issue, so many see their chances as dim. Yet Adam Silver, Rob Manfred, and David Stern each believe sports betting is going to be legal in the near-future, so the US Supreme Court's solicitation of an opinion by Ian Gershengorn might be seen as the turning point.
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