NCAA, pro sports leagues reiterate opposition to sports betting

“PASPA lacks the irreducible minimum of any successful commandeering claim: It does not compel states or state officials to do anything. States are not required to enact laws, to take title to something, to conduct background checks, to consider federal standards, to expend funds, or to enforce federal law. Proving the point, New Jersey fully complied with PASPA for two decades without doing anything.

“That is because PASPA only prohibits states from sponsoring, operating, advertising, or promoting sports-gambling schemes, and prohibits states from licensing or authorizing third parties to engage in that conduct. PASPA does not force states to take any affirmative action to comply with those prohibitions.

“Thus, while petitioners portray PASPA as an anomalous effort to enlist states to do the federal government’s bidding, the reality is that PASPA is an unremarkable effort to preclude states from engaging in certain conduct and to preempt state laws that license or authorize others to do the same,” said the brief from attorney Paul Clement, who represents NCAA, NFL, NBA, NHL and Major League Baseball.

And further:

“But Congress does not commandeer the states just because it limits their policy options, and nothing in the Tenth Amendment prevents Congress from using its commerce power to preempt state laws that contravene federal policy.

“The difference between permissible preemption and impermissible commandeering is that the former precludes certain state action, while the latter commands it. PASPA falls comfortably in the former, permissible camp.”

New Jersey claims that PASPA is unconstitutional, saying it commandeers states to carry out the federal prohibition.