Supreme Court Decides Murphy v. National Collegiate Athletic Association
On May 14, 2018, the Supreme Court decided Murphy v. National Collegiate Athletic Association, No. 16-476, in which it held that the Professional and Amateur Sports Protection Act of 1992 (PASPA), 28 U.S.C. § 3701 et seq., which prohibits states to authorize sports betting, infringes the sovereignty of the states and accordingly violates the 10th Amendment’s anticommandeering principle.
PASPA was enacted to prevent the spread of organized sports gambling outside of the few areas in which it was already legalized. In relevant part, the statute makes it unlawful for any state or subdivision of a state to “sponsor, operate, advertise, promote, license, or authorize” any gambling scheme based on competitive sporting events, 28 U.S.C. § 3702(1), though it contains a separate provision “grandfathering in” sports gambling where it currently existed in Nevada and certain other areas. In 2011, New Jersey passed a constitutional amendment making it lawful for the legislature to authorize sports gambling. The NCAA and professional sports leagues sued to enjoin the amendment as a violation of PASPA, and the state raised as a defense the statute’s unconstitutionality as a violation of the 10th Amendment anticommandeering principle. The District of New Jersey ruled in favor of the plaintiffs and found no anticommandeering violation, and a divided panel of the Third Circuit affirmed.
The Supreme Court reversed, holding that the New Jersey constitutional amendment constituted an “authorization” of sports gambling under PASPA, and that the statute therefore impermissibly infringes the state’s sovereignty. As a matter of statutory interpretation, the Court agreed with New Jersey’s argument that the term “authorize” applies to a state action “completely or partially repeal[ing] old laws banning sports gambling.” It was guided to this conclusion in large part by the “state-law landscape” at the time of PASPA’s enactment, under which sports gambling was prohibited nearly universally, and the common understanding of the term “authorize,” which the Court observed “makes sense only against a backdrop of prohibition or regulation.”
The Court rejected the NCAA’s argument that it should adopt a narrower reading of PASPA’s reach in order to avoid a constitutional question, because it concluded that the statute violates the 10th Amendment under either a broad or narrow interpretation. Turning to the constitutional question and invoking the anticommandeering principle it had first enunciated in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997), the Court reaffirmed that the 10th Amendment implies that Congress cannot “simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” New York, 505 U.S. at 161. PASPA runs afoul of this principle, it held, because it “unequivocally dictates what a state legislature may and may not do.” In reaching this conclusion, the Court rejected as empty the distinction proffered by the NCAA between a federal law commanding a state to take “affirmative” action and one prohibiting the state from acting in a particular manner, noting that the fact that its previous decisions in New York and Printz had involved affirmative commands was a “matter of happenstance.” It further ruled that preemption principles were inapplicable, because preemption involves congressional regulation of private activity rather than statutes, like PASPA, directly targeted at the state in its sovereign capacity. Lastly, the Court determined that other provisions of PASPA, including those concerning “operat[ing]” and “advertis[ing]” sports gambling, were not severable and that the entire statute must be struck down.
Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, Kagan, and Gorsuch joined in full and in which Justice Breyer joined in all respects but the ruling with respect to severability. Justice Thomas filed a concurring opinion, and Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined in full and Justice Breyer joined in part.
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