National Collegiate Athletic Ass'n v. Governor of New Jersey , 730 F.3d 208 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1713
_____________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
an unincorporated association;
NATIONAL BASKETBALL ASSOCIATION, a joint
venture;
NATIONAL FOOTBALL LEAGUE, an unincorporated
association;
NATIONAL HOCKEY LEAGUE, an unincorporated
association;
OFFICE OF THE COMMISSIONER OF BASEBALL, an
unincorporated association doing business as MAJOR
LEAGUE BASEBALL;
UNITED STATES OF AMERICA (Intervenor in the District
Court)
v.
GOVERNOR OF THE STATE OF NEW JERSEY;
DAVID L. REBUCK, Director of the New Jersey Division of
Gaming Enforcement
and Assistant Attorney General of the State of New Jersey;
FRANK ZANZUCCKI, Executive Director of the New
Jersey Racing Commission
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC.; STEPHEN M. SWEENEY; SHEILA
Y. OLIVER (Intervenors in District Court)
Stephen M. Sweeney and Sheila Y. Oliver,
Appellants
_____________
No. 13-1714
_____________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
an unincorporated association;
NATIONAL BASKETBALL ASSOCIATION, a joint
venture;
NATIONAL FOOTBALL LEAGUE, an unincorporated
association;
NATIONAL HOCKEY LEAGUE, an unincorporated
association;
OFFICE OF THE COMMISSIONER OF BASEBALL, an
unincorporated association doing business as MAJOR
LEAGUE BASEBALL;
UNITED STATES OF AMERICA (Intervenor in the District
Court)
v.
GOVERNOR OF THE STATE OF NEW JERSEY;
2
DAVID L. REBUCK, Director of the New Jersey Division of
Gaming Enforcement
and Assistant Attorney General of the State of New Jersey;
FRANK ZANZUCCKI, Executive Director of the New
Jersey Racing Commission
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC.; STEPHEN M. SWEENEY; SHEILA
Y. OLIVER (Intervenors in District Court)
New Jersey Thoroughbred Horsemen’s Association, Inc.,
Appellant
_____________
No. 13-1715
_____________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
an unincorporated association;
NATIONAL BASKETBALL ASSOCIATION, a joint
venture;
NATIONAL FOOTBALL LEAGUE, an unincorporated
association;
NATIONAL HOCKEY LEAGUE, an unincorporated
association;
OFFICE OF THE COMMISSIONER OF BASEBALL, an
unincorporated association doing business as MAJOR
LEAGUE BASEBALL;
UNITED STATES OF AMERICA (Intervenor in the District
Court)
3
v.
GOVERNOR OF THE STATE OF NEW JERSEY;
DAVID L. REBUCK, Director of the New Jersey Division of
Gaming Enforcement
and Assistant Attorney General of the State of New Jersey;
FRANK ZANZUCCKI, Executive Director of the New
Jersey Racing Commission
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC.; STEPHEN M. SWEENEY; SHEILA
Y. OLIVER (Intervenors in District Court)
Governor of the State of New Jersey; David L. Rebuck and
Frank Zanzuccki,
Appellants
_____________
On Appeal from the United States District Court
for the District of New Jersey
(Civil Action No. 3-12-cv-04947)
District Judge: Hon. Michael A. Shipp
_____________
Argued: June 26, 2013
Before: FUENTES, FISHER, and VANASKIE, Circuit
Judges.
(Opinion Filed: September 17, 2013)
4
Theodore B. Olson, Esq. [ARGUED]
Matthew D. McGill, Esq.
Ashley E. Johnson, Esq.
Robert E. Johnson, Esq.
Gibson Dunn & Crutcher, LLP
1050 Connecticut Avenue, N.W., 9th Floor
Washington, DC 20036
John J. Hoffman, Esq.
Christopher S. Porrino, Esq.
Stuart M. Feinblatt, Esq.
Peter M. Slocum, Esq.
Office of the Attorney General of the State of New Jersey
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625
Attorneys for Appellants Governor of the State of New Jersey,
David L. Rebuck, Director of the New Jersey Division of
Gaming Enforcement, and Frank Zanzuccki, Executive
Director of the New Jersey Racing Commission
Michael R. Griffinger, Esq. [ARGUED]
Thomas R. Valen, Esq.
Jennifer A. Hradil, Esq.
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Attorneys for Intervenors Stephen Sweeney and Sheila Oliver
5
Ronald J. Riccio, Esq. [ARGUED]
Eliot Berman, Esq.
McElory, Deutsch, Mulvaney & Carpenter LLP
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07962
Attorneys for Intervenor New Jersey Thoroughbred
Horsemen’s Association, Inc.
Paul D. Clement, Esq. [ARGUED]
Candice Chiu, Esq.
William R. Levi, Esq.
Erin E. Murphy, Esq.
Bancroft PLLC
1919 M Street N.W. Suite 470
Washington, DC 20036
William J. O’Shaughnessy, Esq.
Richard Hernandez, Esq.
McCarter & English LLP
100 Mulberry Street
Four Gateway Center, 14th Floor
Newark, NJ 07102
Jeffrey A. Mishkin, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
Attorneys for Appellees National Collegiate Athletic
Association, National Basketball Association, National
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Football League, National Hockey League, and Office of the
Commissioner of Baseball d/b/a Major League Baseball
Paul J. Fishman, Esq. [ARGUED]
Office of the United States Attorney
District of New Jersey
970 Broad Street, Room 700
Newark, NJ 07102
Peter J. Phipps, Esq.
Scott McIntosh, Esq.
United States Department of Justice
Civil Division
P.O. Box 883
Ben Franklin Station
Washington, DC 20044
Attorneys for Intervenor United States of America
Christopher S. Dodrill, Esq.
Elbert Lin, Esq.
Attorney General of West Virginia
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
Attorneys for Amici Curiae States of West Virginia, Georgia,
and Kansas, and the Commonwealth of Virginia in Support of
Appellants and Reversal
_____________
7
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge:
Betting on sports is an activity that has unarguably
increased in popularity over the last several decades. Seeking
to address instances of illegal sports wagering within its
borders and to improve its economy, the State of New Jersey
has sought to license gambling on certain professional and
amateur sporting events. A conglomerate of sports leagues,
displeased at the prospect of State-licensed gambling on their
athletic contests, has sued to halt these efforts. They contend,
alongside the United States as intervening plaintiff, that New
Jersey’s proposed law violates a federal law that prohibits
most states from licensing sports gambling, the Professional
and Amateur Sports Protection Act of 1992 (PASPA), 28
U.S.C. § 3701 et seq.
8
In defense of its own sports wagering law, New Jersey
counters that the leagues lack standing to bring this case
because they suffer no injury from the State’s legalization of
wagering on the outcomes of their games. In addition,
alongside certain intervening defendants, New Jersey argues
that PASPA is beyond Congress’ Commerce Clause powers
to enact and that it violates two important principles that
underlie our system of dual state and federal sovereignty: one
known as the “anti-commandeering” doctrine, on the ground
that PASPA impermissibly prohibits the states from enacting
legislation to license sports gambling; the other known as the
“equal sovereignty” principle, in that PASPA permits Nevada
to license widespread sports gambling while banning other
states from doing so. The District Court disagreed with each
of these contentions, granted summary judgment to the
leagues, and enjoined New Jersey from licensing sports
betting.
9
On appeal, we conclude that the leagues have Article
III standing to enforce PASPA and that PASPA is
constitutional. As will be made clear, accepting New Jersey’s
arguments on the merits would require us to take several
extraordinary steps, including: invalidating for the first time
in our Circuit’s jurisprudence a law under the anti-
commandeering principle, a move even the United States
Supreme Court has only twice made; expanding that principle
to suspend commonplace operations of the Supremacy Clause
over state activity contrary to federal laws; and making it
harder for Congress to enact laws pursuant to the Commerce
Clause if such laws affect some states differently than others.
We are cognizant that certain questions related to this
case—whether gambling on sporting events is harmful to the
games’ integrity and whether states should be permitted to
license and profit from the activity—engender strong views.
But we are not asked to judge the wisdom of PASPA or of
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New Jersey’s law, or of the desirability of the activities they
seek to regulate. We speak only to the legality of these
measures as a matter of constitutional law. Although this
“case is made difficult by [Appellants’] strong arguments” in
support of New Jersey’s law as a policy matter, see Gonzales
v. Raich, 545 U.S. 1, 9 (2005), our duty is to “say what the
law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). “If
two laws conflict with each other, the courts must decide on
the operation of each.” Id. New Jersey’s sports wagering law
conflicts with PASPA and, under our Constitution, must
yield. We will affirm the District Court’s judgment.
I. LEGAL FRAMEWORK
Wagering on sporting events is an activity almost as
inscribed in our society as participating in or watching the
sports themselves. New Jersey tells us that sports betting in
the United States—most of it illegal—is a $500 billion dollar
per year industry. And scandals involving the rigging of
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sporting contests in the interest of winning a wager are as old
as the games themselves: the infamous Black Sox scandal of
the 1919 World Series, or Major League Baseball’s (“MLB”)
lifetime ban on all-time hits leader Pete Rose for allegedly
wagering on games he played in come to mind. And the
recent prosecution of Tim Donaghy, a National Basketball
Association (“NBA”) referee who bet on games that he
officiated, reminds us of problems that may stem from
gambling.
However, despite its pervasiveness, few states have
ever licensed gambling on sporting events. Nevada alone
began permitting widespread betting on sporting events in
1949 and just three other states—Delaware, Oregon, and
Montana—have on occasion permitted limited types of
lotteries tied to the outcome of sporting events, but never
single-game betting. Sports wagering in all forms,
particularly State-licensed wagering, is and has been illegal
12
elsewhere. See, e.g., 18 Pa. Cons. Stat. Ann. § 5513; Del.
Code Ann. tit. 11, § 1401, et seq. Congress took up and
eventually enacted PASPA in 1992 in response to increased
efforts by states to begin licensing the practice.
A. The Professional and Amateur Sports Protection
Act of 1992
PASPA’s key provision applies for the most part
identically to “States” and “persons,” providing that neither
may
sponsor, operate, advertise, or promote . . . a
lottery, sweepstakes, or other betting, gambling,
or wagering scheme based directly or indirectly
(through the use of geographical references or
otherwise), on one or more competitive games
in which amateur or professional athletes
participate, or are intended to participate, or on
one or more performances of such athletes in
such games.
28 U.S.C. § 3702. The prohibition on private persons is
limited to any such activity conducted “pursuant to the law or
compact of a governmental entity,” id. § 3702(2), while the
13
states are subject to an additional restriction: they may not
“license[] or authorize by law or compact” any such gambling
activities, id. §§ 3702(1), 3701.
PASPA contains three relevant exceptions—a
“grandfathering” clause that releases Nevada from PASPA’s
grip, see id. § 3704(a)(2), a clause that permitted New Jersey
to license sports wagering in Atlantic City had it chosen to do
so within one year of PASPA’s enactment, see id.
§ 3704(a)(3), and a grandfathering provision permitting states
like Delaware and Oregon to continue the limited “sports
lotteries” that they had previously conducted, see id.
§ 3704(a)(1). PASPA provides for a private right of action
“to enjoin a violation [of the law] . . . by the Attorney General
or by a . . . sports organization . . . whose competitive game is
alleged to be the basis of such violation.” Id. § 3703.
Only one Court of Appeals has decided a case under
PASPA—ours. In Office of the Commissioner of Baseball v.
14
Markell we held that PASPA did not permit Delaware to
license single-game betting because the relevant
grandfathering provision for Delaware permitted only
lotteries consisting of multi-game parlays on NFL teams. 579
F.3d 293, 304 (3d Cir. 2009). This is the first case addressing
PASPA’s constitutionality.
The Act’s legislative history is sparse but mostly
consistent with the foregoing. The Report of the Senate
Judiciary Committee makes clear that PASPA’s purpose is to
“prohibit sports gambling conducted by, or authorized under
the law of, any State or governmental entity” and to “stop the
spread of State-sponsored sports gambling.” Sen. Rep. 102-
248, at 4, reprinted in 1992 U.S.C.C.A.N. 3553, 3555
(“Senate Report”). The Senate Report specifically notes
legislators’ concern with “State-sponsored” and “State-
sanctioned” sports gambling. Id. at 3555.
15
The Senate Report catalogues what the Committee
believed were some of the problems arising from sports
gambling. Importantly, the Committee noted its concern for
“the integrity of, and public confidence in, amateur and
professional sports” and its concern that “[w]idespread
legalization of sports gambling would inevitably promote
suspicion about controversial plays and lead fans to think ‘the
fix was in’ whenever their team failed to beat the point-
spread.” Id. at 3556. The Senate Report also stated its
concurrence with the then-director of New Jersey’s Division
of Gaming Enforcement’s statement that “most law
enforcement professionals agree that legalization has a
negligible impact on, and in some ways enhances, illegal
markets.” Id. at 3558. This is so because “many new
gamblers will . . . inevitably . . . seek to move beyond lotteries
to wagers with higher stakes and more serious consequences.”
Id.
16
The Senate Report also explains the Committee’s
conclusion that “[s]ports gambling is a national problem”
because “[t]he moral erosion it produces cannot be limited
geographically” given the thousands who earn a livelihood
from professional sports and the millions who are fans of
them, and because “[o]nce a State legalizes sports gambling,
it will be extremely difficult for other States to resist the
lure.” Id. at 3556. Finally, it notes that PASPA exempts
Nevada because the Committee did not wish to “threaten
[Nevada’s] economy,” or of the three other states that had
chosen in the past to enact limited forms of sports gambling.
Id. at 3559.
B. Sports Gambling in New Jersey Since PASPA Was
Enacted
Although New Jersey in its discretion chose not to
avail itself of PASPA’s exemption within the one-year
window, “[o]ver the course of the next two decades . . . the
17
views of the New Jersey voters regarding sports wagering
evolved.” Br. of Appellants Sweeney, et al. 4. In 2010, the
New Jersey Legislature held public hearings during which it
heard testimony that regulated sports gambling would
generate much-needed revenues for the State’s casinos and
racetracks, and during which legislators expressed a desire to
“to stanch the sports-wagering black market flourishing
within [New Jersey’s] borders.” Br. of Appellants Christie, et
al. 13 (“N.J. Br.”). The Legislature ultimately decided to
hold a referendum which would result in an amendment to the
State’s Constitution permitting the Legislature to “authorize
by law wagering. . . on the results of any professional,
college, or amateur sport or athletic event.” N.J. Const. Art.
IV, § VII, ¶ 2 (D), (F). The measure was approved by the
voters, and the Legislature later enacted the law that is now
asserted to be in violation of PASPA—the “Sports Wagering
Law,” which permits State authorities to license sports
18
gambling in casinos and racetracks and casinos to operate
“sports pools.” N.J.S.A. 5:12A-1 et seq.; see also N.J.A.C.
§ 13:69N-1.1 et seq. (regulations implementing the law).
II. PROCEDURAL HISTORY
The NBA, MLB, the National Collegiate Athletic
Association (“NCAA”), the National Football League
(“NFL”), and the National Hockey League (“NHL”)
(collectively, the “Leagues”), sued New Jersey Governor
Chris Christie, New Jersey’s Racing Commissioner, and New
Jersey’s Director of Gaming Enforcement (the “State” or
“New Jersey”), under 28 U.S.C. § 2703, asserting that the
Sports Wagering Law is invalidated by PASPA. The New
Jersey Senate Majority Leader Stephen Sweeney and House
Speaker Sheila Oliver intervened as defendants, alongside the
New Jersey Thoroughbred Horsemen’s Association, the
owner of the Monmouth Park Racetrack, a business where
19
sports gambling would occur under the Sports Wagering Law
(the “NJTHA”) (collectively, “Appellants”).
The State moved to dismiss for lack of standing and
the District Court ordered expedited discovery on that
question. After the completion of discovery and oral
arguments, the District Court concluded that the Leagues
have standing. Nat’l Collegiate Athletic Ass’n v. Christie,
No. 12-4947, 2012 WL 6698684 (D.N.J. Dec. 21, 2012)
(“NCAA I”).
With the constitutionality of PASPA then squarely at
issue, the District Court invited the United States to intervene
pursuant to 28 U.S.C. § 2403. The District Court ultimately
upheld PASPA’s constitutionality, granted summary
judgment to the Leagues, and enjoined the Sports Wagering
Law from going into effect. Nat’l Collegiate Athletic Ass’n v.
Christie, __ F. Supp. 2d __, 2013 WL 772679 (D.N.J. Feb.
28, 2013) (“NCAA II”). This expedited appeal followed.
20
III. JURISDICTION: WHETHER THE LEAGUES
HAVE STANDING
The District Court had subject-matter jurisdiction
pursuant to 28 U.S.C. § 1331, and we have appellate
jurisdiction over its final judgment under § 1291. Our
jurisdiction, however, is limited by the Constitution’s “cases”
and “controversies” requirement. U.S. CONST., art. III, § 2.
To satisfy this jurisdictional limitation, the party invoking
federal court authority must demonstrate that he or she has
standing to bring the case.1
The Leagues argue they have standing because their
own games are the subject of the Sports Wagering Law.
They also contend that the law will increase the total amount
1
The United States notes there may be questions as to
whether the District Court’s injunction is an appealable final
order because it does not specify what steps the State must
undertake to comply with the injunction, but we conclude that
the injunction is an appealable final order because the merits
opinion describes what the State must do—refrain from
licensing sports gambling. See NCAA II, 2013 WL 772679, at
*25.
21
of gambling on sports available, thereby souring the public’s
perception of the Leagues as people suspect that games are
affected by individuals with a perhaps competing hidden
monetary stake in their outcome. Appellants counter that the
Leagues cannot show a concrete, non-speculative injury from
any potential increase in legal gambling.
The District Court granted summary judgment to the
Leagues, reasoning that Markell supports a holding that the
Leagues have standing, and that reputational injury is a
legally cognizable harm that may confer standing. It also
found sufficient facts in the record to conclude that the Sports
Wagering Law will result in an increase in fans’ negative
perceptions of the Leagues. We review de novo the legal
conclusion that the Leagues have standing, and we review for
clear error any factual findings underlying the District Court’s
determination. Marion v. TDI Inc., 591 F.3d 137, 146 (3d
Cir. 2010).
22
A. The Effect of Markell
Markell, like this case, was a lawsuit by the Leagues to
stop a state from licensing single-game betting on the
outcome of sporting events. In Markell we “beg[a]n [our
analysis], as always, by considering whether we ha[d]
jurisdiction to hear [the] appeal,” and later concluded that we
did have jurisdiction. 579 F.3d at 297, 300. But, contrary to
the Leagues’ suggestion, our analysis was limited to whether
we had appellate jurisdiction under 28 U.S.C. § 1292(a). See
id. We did not explicitly consider Article III standing, and a
“drive-by jurisdictional ruling, in which jurisdiction has been
assumed by the parties . . . does not create binding
precedent.” United States v. Stoerr, 695 F.3d 271, 277 n.5
(3d Cir. 2012) (internal quotation marks and alterations
omitted). Therefore, we will not rely on Markell for our
standing analysis.
B. Standing Law Generally
23
Under the familiar three-part test, to establish standing,
a plaintiff must show (1) an “injury in fact,” i.e., an actual or
imminently threatened injury that is “concrete and
particularized” to the plaintiff; (2) causation, i.e., traceability
of the injury to the actions of the defendant; and (3)
redressability of the injury by a favorable decision by the
Court. Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009).
Causation and redressability may be met when “a party
. . . challenge[s] government action that permits or authorizes
third-party conduct that would otherwise be illegal in the
absence of the Government’s action.” Nat’l Wrestling
Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940-41 (D.C.
Cir. 2004). Here, the Leagues do not purport to enjoin third
parties from attempting to fix games. The Leagues have sued
to block the Sports Wagering Law, which they assert will
result in a taint upon their games, and is a law that by
24
definition constitutes state action to license conduct that
would not otherwise occur. Under the reasoning of National
Wrestling Coaches, causation and redressability are thus
satisfied, and all arguments implicitly aimed at those two
prongs are suspect.
Accordingly, we focus on the injury-in-fact
requirement, the “contours of [which], while not precisely
defined, are very generous.” Bowman v. Wilson, 672 F.2d
1145, 1151 (3d Cir. 1982). Indeed, all that Article III requires
is an identifiable trifle of injury, United States v. Students
Challenging Regulatory Agency Procedures, 412 U.S. 669,
690 n.14 (1973), which may exist if the plaintiff “has . . . a
personal stake in the outcome of [the] litigation.” The Pitt
News v. Fisher, 215 F.3d 354, 360 (3d Cir. 2000); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)
(noting that to satisfy the injury-in-fact requirement the
“injury must affect the plaintiff in a personal and individual
25
way”). To meet this burden, the Leagues must present
evidence “in the same way as [for] any other matter on which
[they] bear[] the burden of proof.” Lujan, 504 U.S. at 561.
C. Whether the Sports Wagering Law Causes the
Leagues An Injury In Fact
As noted, the Leagues offer two independent bases for
standing: that the Sports Wagering Law makes the Leagues’
games the object of state-licensed gambling and that they will
suffer reputational harm if such activity expands. We address
each in turn.
1. The Leagues are essentially the object of the
Sports Wagering Law
Injury in fact may be established when the plaintiff
himself is the object of the action at issue. Id. Thus, the
Leagues are correct that if the Sports Wagering Law is
directed at them, the injury-in-fact requirement is satisfied.
26
Fairly read, however, the Sports Wagering Law does
not directly regulate the Leagues, but instead regulates the
activities that may occur at the State’s casinos and racetracks.
We thus hesitate to conclude that the Leagues may rely solely
on the existence of the Sports Wagering Law to show injury.
But that is not to say that we are glib with respect to one of
the main purposes of the law: to use the Leagues’ games for
profit. Cf. NFL v. Governor of Del., 435 F. Supp. 1372, 1378
(D. Del. 1972) (Stapleton, J.) (explaining that Delaware’s
sports lottery sought to use the NFL’s “schedules, scores and
public popularity” to “mak[e] profits [Delaware] [c]ould not
make but for the existence of the NFL”). The Sports
Wagering Law is thus, in a sense, as much directed at the
Leagues’ events as it is aimed at the casinos. This is not a
generalized grievance like those asserted by environmental
groups over regulation of wildlife in cases where the Supreme
Court has found no standing, such as in Lujan or Summers.
27
The law here aims to license private individuals to cultivate
the fruits of the Leagues’ labor.
Appellants counter that the Leagues’ interest in not
seeing their games subject to wagering is a non-cognizable
“claim for the loss of psychic satisfaction.” N.J. Br. at 31
(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
107 (1998)). But the holding in Steel Company was that a
claim for psychic satisfaction did not present a redressable
injury. In that case, a private plaintiff sought a payment into
the U.S. Treasury by a private company that had violated
federal law, and asserted that such was a redressable injury
because the plaintiff would feel “psychic satisfaction” in
seeing the payment made. See Steel Co., 523 U.S. at 107.
The case is thus inapposite here, where redressability is
established because the Leagues assert harm from the very
government action they seek to enjoin—the enforcement of
the Sports Wagering Law. Moreover, the Leagues do not
28
assert merely psychic, but reputational harm, a very real and
very redressable injury.
Appellants also argue that because the Leagues do not
have a proprietary interest in the outcomes of their games
they may not seek to prevent others from profiting from them.
This contention relies on the holding in NFL v. Governor of
Delaware, that a Delaware lottery based on the outcome of
NFL games did not constitute a misappropriation of the
NFL’s property. 435 F. Supp. at 1378-79. But here the
Leagues do not complain of an invasion of any proprietary
interest, but only refer to the fact of appropriation of their
labor to show that the Sports Wagering Law is directed at
them.
2. Reputational Harm as Injury In Fact
The Leagues may also meet their burden of
establishing injury from a law aimed at their games by
proving that the activity sanctioned by that law threatens to
29
cause them reputational harm amongst their fans and the
public.
(a) Reputation Harm Is a Legally
Cognizable Injury
As a matter of law, reputational harm is a cognizable
injury in fact. The Supreme Court so held in Meese v. Keene,
where it concluded that a senator who wished to screen films
produced by a foreign company had standing to challenge a
law requiring the identification of such films as foreign
“political propaganda” because the label could harm his
reputation with the public and hurt his chances at reelection.
481 U.S. 465, 473-74 (1987). Essentially, the senator
challenged his unwanted association with an undesirable
label. Our cases have also recognized that reputational harm
is an injury sufficient to confer standing. See, e.g., Bowers v.
Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 542-43 (3d Cir.
2007) (concluding that an attorney has standing to challenge a
30
public reprimand because the sanction “affect[s] [his]
reputation”); Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146,
153 (3d Cir. 1999) (holding that a student had standing to
challenge a rule requiring that he be identified as disabled
because such label could sour the perception of him by
“people who can affect his future and his livelihood”).
The Leagues’ claim of injury is identical to that of the
plaintiffs in Keene and Doe: they are harmed by their
unwanted association with an activity they (and large portions
of the public) disapprove of—gambling. Appellants do not
dispute this legal premise, but attack the strength of the
evidence that the Leagues have proffered to tie the Sports
Wagering Law to the reputational harm they assert. These
arguments overstate what the Leagues must show to
demonstrate reputational harm in this context and, in any
case, ignore the strength of the proffered evidence.
31
(b) The Evidence In the Record Supports
the District Court’s Conclusion that
Reputational Harm Will Occur
To be sure, at the summary judgment stage, mere
allegations of harm are insufficient and specific facts are
required. See Lujan, 504 U.S. at 561. And a plaintiff’s claim
of fear of reputational harm must always be “based in
reality.” Doe, 199 F.3d at 153. But the “nature and extent of
facts that must be averred” depends on the nature of the
asserted injury. Lujan, 504 U.S. at 561-62. No one would
doubt, for example, that an individual forced to wear a scarlet
“A” on her clothing has standing to challenge that action
based on reputational harm. Indeed, that was the import of
our holding in Doe where, after discounting all of the
evidence presented to prove that others’ perception of the
plaintiff as disabled could harm him, we concluded that his
fear of reputational harm based on an unwanted and
stigmatizing label was nevertheless based “in reality.” 199
32
F.3d at 153. In Keene, by contrast, where the reputational
harm from being associated with “foreign political
propaganda” was not as intuitive, the Supreme Court held that
an undisputed expert opinion that such labels may stigmatize
individuals was sufficient to make the required injury-in-fact
showing. 481 U.S. at 490. This suggests a spectrum wherein
the sufficiency of the showing that must be made to establish
reputational harm depends on the circumstances of each case.
Here, the reputational harm that results from increasingly
associating the Leagues’ games with gambling is fairly
intuitive.
For one, the conclusion that there is a link between
legalizing sports gambling and harm to the integrity of the
Leagues’ games has been reached by several Congresses that
have passed laws addressing gambling and sports, see, e.g.,
H.R. Rep. No. 88-1053 (1963) (noting that when gambling
interests are involved, the “temptation to fix games has
33
become very great,” which in turn harms the honesty of the
games); Senate Report at 3555 (noting that PASPA was
necessary to “maintain the integrity of our national pastime”).
It is, indeed, the specific conclusion reached by the Congress
that enacted PASPA, as reflected by the statutory cause of
action conferred to the Leagues to enforce the law when their
individual games are the target of state-licensed sports
wagering. See 28 U.S.C. § 3703. And, presumably, it has
also been at least part of the conclusions of the various state
legislatures that have blocked the practice throughout our
history.
But even if polls like in Keene were always required in
reputational harm cases, the Leagues have met that burden.
The record is replete with evidence showing that being
associated with gambling is stigmatizing, regardless of
whether the gambling is legal or illegal. Before the District
Court were studies showing that: (1) some fans from each
34
League viewed gambling as a problem area for the Leagues,
and some fans expressed their belief that game fixing most
threatened the Leagues’ integrity [App. 1605-06]; (2) some
fans did not want a professional sports franchise to open in
Las Vegas, and some fans would be less likely to spend
money on the Leagues if that occurred; and (3) a large
number of fans oppose the expansion of legalized sports
betting. [2293-98.] This more than suffices to meet the
Leagues’ evidentiary burden under Keene and Doe—being
associated with gambling is undesirable and harmful to one’s
reputation.
Although the Leagues could end their injury in fact
proffer there, they also set forth evidence establishing a clear
link between the Sports Wagering Law and increased
incentives for game-rigging. First, the State’s own expert
noted that state-licensing of sports gambling will result in an
increase in the total amount of (legal plus illegal) gambling
35
on sports. [App. 325]. Second, a report by the National
Gambling Impact Study Commission, prepared at the behest
of Congress in 1999, explains that athletes are “often tempted
to bet on contests in which they participate, undermining the
integrity of sporting contests.” App. 743. Third, there has
been at least one instance of match-fixing for NCAA games
as a result of wagers placed through legitimate channels, and
several as a result of wagers placed in illegal markets for most
of the Leagues, and NCAA players have affected or have
been asked to affect the outcome of games “because of
gambling debt.” App. 2245. Thus, more legal gambling
leads to more total gambling, which in turn leads to an
increased incentive to fix or attempt to fix the Leagues’
matches.
This evidence, together, permits the factual conclusion
that being associated with gambling is a stigmatizing label
and that, to the extent that the Sports Wagering Law will
36
increase the total amount of gambling as New Jersey’s expert
expects, it will increase some fans’ “negative perceptions [of
the Leagues] attributed to game fixing and gambling.” NCAA
I, 2013 WL 6698684, at *6. We discern no clear error in the
District Court’s factual conclusions as derived from these
surveys and reports.2
3. Appellants’ Counterarguments
Appellants posit that the Leagues cannot establish
injury based on any stigma that may attach to wagering,
because fans would not think negatively of the Leagues given
2
More fundamentally, it is clear to us that gambling and
match-fixing scandals tend to tarnish the Leagues’
reputations. Media reports to that effect abound. To take but
one, after the Tim Donaghy NBA gambling and game-fixing
scandal, commentators noted that “the integrity of the
[NBA’s] games just took a major hit.” J.A. Adande, Ref
investigation only adds to bad perception of NBA, ESPN.com,
July 19, 2007,
http://sports.espn.go.com/nba/columns/story?id=2943704. It
is simply untenable to hold that the Leagues have not
identified a trifle of reputational harm from an increase in
even legal or licensed sports gambling.
37
that it is the State that is licensing the activity against the
Leagues’ wishes. But as then-Circuit Judge Scalia explained,
an argument that the “public reaction [to] the alleged harm . .
. is an irrational one . . . is irrelevant to the question of core,
constitutional injury-in-fact, which requires no more than de
facto causality.” Block v. Meese, 793 F.2d 1303, 1309 (D.C.
Cir. 1986).
We also find unpersuasive the contention that the
increase in incentives to rig the outcome of the Leagues’
games cannot give rise to standing because they depend on
unknown actions of third parties. The Leagues do not seek to
enjoin individuals from rigging games; they seek to enjoin
New Jersey’s law. That a third party’s action may be
necessary to complete the complained-of harm does not
negate the existence of an injury in fact from the Sports
Wagering Law or negate causation and redressability. “It is
impossible to maintain . . . that there is no standing to sue
38
regarding action of a defendant which harms the plaintiff only
through the reaction of third persons. If that principle were
true, it is difficult to see how libel actions or suits for
inducing breach of contract could be brought in federal court.
. . .” Id. Thus, “the traceability requirement [may be] met
even where the conduct in question might not have been a
proximate cause of the harm.” Edmonson v. Lincoln Nat’l
Life Ins. Co., __ F.3d __, No. 12-1581, 2013 WL 4007553,
*7 (3d Cir. Aug. 7, 2013) (citing The Pitt News, 215 F.3d at
360-61).3
3
Appellants rely almost exclusively on Simon v. East
Kentucky Welfare Rights Organization, 426 U.S. 26 (1976),
for the proposition that the reputational injury at issue here is
insufficient because it “result[s] ‘from the independent action
of some third party not before the court.’” N.J. Br. at 23
(quoting Simon, 426 U.S. at 41-42). This argument greatly
overstates the effect of Simon. There, a group of indigent
individuals brought suit against the IRS, asserting that the
IRS’s tax designation of certain hospitals harmed them by
making it less likely that the hospitals would provide them
free services. The Supreme Court concluded that the
plaintiffs lacked standing because it was “purely speculative
39
Appellants also assert that granting summary judgment
to the Leagues was improper because the effect of the studies
and opinion polls was disputed by Appellants’ own evidence.
In particular, they point to evidence that (1) the Leagues have
been economically prospering despite pervasive unregulated
sports gambling and state-licensed sports gambling in
Nevada; and (2) some individuals would have no interest in
the Leagues’ product unless they had a monetary interest in
the outcome of games. But these arguments, which sound
more like an appeal to commonsense with which, no doubt,
many will agree as a policy matter, do not legally deprive the
whether the denials of services . . . fairly can be traced to [the
IRS’ actions] or instead result from decisions made by the
hospitals without regard to the tax implications.” Simon, 426
U.S. at 42-43. But here we are dealing with a law that
licenses conduct that casinos could not otherwise undertake
under the State’s auspices, and thus the third party’s actions
are not truly independent of the State’s conduct. See Nat’l
Wrestling Coaches Ass’n, 366 F.3d at 941.
40
Leagues of standing and are insufficient to raise a genuine
issue of material fact.
A plaintiff does not lose standing to challenge an
otherwise injurious action simply because he may also derive
some benefit from it. Our standing analysis is not an
accounting exercise and it does not require a decision on the
merits. See, e.g., Denney v. Deutsche Bank AG, 443 F.3d
253, 265 (2d Cir. 2006) (noting that “the fact that an injury
may be outweighed by other benefits, while often sufficient to
defeat a claim for damages, does not negate standing”); see
also 13A CHARLES A. WRIGHT & ARTHUR MILLER, FED.
PRAC. & PROC. JURIS. 3d § 3531.4, 147 (3d ed. 2008). Nor
must the Leagues construct counterfactuals analyzing whether
they would have done better if PASPA had instituted a
complete ban of state-licensed sports gambling or,
conversely, worse if PASPA had not existed. And that fans
may still buy tickets is not inconsistent with the notion that
41
the Leagues’ esteem suffers in the eyes of fans, which
requires the Leagues to take efforts to rehabilitate their image.
That alone establishes injury in fact; that the Leagues may
have been successful at rehabilitating their images does not
deprive them of standing. See, e.g., Keene, 481 U.S. at 475(“[T]he need to take . . . affirmative steps to avoid the risk of
harm to [one’s] reputation constitutes a cognizable injury.”).
As a last resort, Appellants question the Leagues’
commitment to their own argument that state-licensed sports
wagering harms them, noting that the Leagues hold events in
jurisdictions, such as Canada and England, where gambling
on sports is licensed, and that they promote and profit from
products that are akin to gambling on sports, such as pay-to-
play fantasy leagues. But standing is not defeated by a
plaintiff’s alleged unclean hands and does not require
balancing the equities. That the Leagues may believe that
holding events in Canada and England is not injurious to
42
them does not negate that harm may arise from an expansion
of sports wagering to the entire country. The same can be
said of the Leagues’ promotion of fantasy sports, even if we
accept that these activities are akin to head-to-head
gambling.4 And, as even Appellants recognize, it is not the
Leagues’ subjective beliefs that control. See Lujan, 504 U.S.
at 564.
***
That the Leagues have standing to enforce a
prohibition on state-licensed gambling on their athletic
contests seems to us a straightforward conclusion, particularly
4
We note, however, the legal difference between paying
fees to participate in fantasy leagues and single-game
wagering as contemplated by the Sports Wagering Law. See
Humphrey v. Viacom, Inc., No. 06-2768 (DMC), 2007 WL
1797648, at *9 (D.N.J. June 20, 2007) (holding that fantasy
leagues that require an entry fee are not subject to anti-betting
and wagering laws); Las Vegas Hacienda, Inc. v. Gibson, 359
P.2d 85, 86-87 (Nev. 1961) (holding that a “hole-in-one”
contest that required an entry fee was a prize contest, not a
wager).
43
given the proven stigmatizing effect of having sporting
contests associated with gambling, a link that is confirmed by
commonsense and Congress’ own conclusions.5
IV. THE MERITS
We turn now to the merits. The centerpiece of
Appellants and amici’s attack on PASPA is that it
impermissibly commandeers the states. But at least one party
raises the spectre that PASPA is also beyond Congress’
authority under the Commerce Clause of the U.S.
Constitution. We thus examine first whether Congress may
even regulate the activities that PASPA governs. Only after
concluding that Congress may do so can we consider
5
We also note that, although the United States’
intervention does not always give us jurisdiction, a court may
treat intervention as a separate suit over which it has
jurisdiction, if the intervenor has standing, particularly when
the intervenor enters the proceedings at an early stage. See,
e.g., Disability Advocates, Inc. v. New York Coal. For
Assisted Living, Inc., 675 F.3d 149, 161 (2d Cir. 2012); Fuller
v. Volk, 351 F.2d 323, 328 (3d Cir. 1965). Thus, the United
States’ intervention independently supports our jurisdiction.
44
whether, in exercising its affirmative powers, Congress
exceed a limitation imposed in the Constitution, such as by
the anti-commandeering and equal sovereignty principles.
See, e.g., Reno v. Condon, 528 U.S. 141, 148-49 (2000)
(asking, first, whether a law was within Commerce Clause
powers and, second, whether the law violated the Tenth
Amendment).6
A. Whether PASPA is Within Congress’ Commerce
Clause Power
1. Modern Commerce Clause Law
Among Congress’ enumerated powers in Article I is
the ability to “regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” U.S.
6
We review de novo a determination regarding
PASPA’s constitutionality, Gov’t of V.I. v. Steven, 134 F.3d
526, 527 (3d Cir. 1998), and begin with the “time-honored
presumption that [an act of Congress] is a constitutional
exercise of legislative power.” Reno, 528 U.S. at 148(internal quotation marks omitted) (quoting Close v.
Glenwood Cemetery, 107 U.S. 446, 475 (1883)).
45
CONST., Art. I., § 8, cl. 3. As is well-known, since NLRB v.
Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), the
Commerce Clause has been construed to give Congress
“considerabl[e] . . . latitude in regulating conduct and
transactions.” United States v. Morrison, 529 U.S. 598, 608
(2000). For one, Congress may regulate an activity that
“substantially affects interstate commerce” if it “arise[s] out
of or [is] connected with a commercial transaction.” United
States v. Lopez, 514 U.S. 549, 559 (1995). By contrast,
regulations of non-economic activity are disfavored. Id. at
567 (striking down a law regulating possession of weapons
near schools); see also Morrison, 529 U.S. at 613(invalidating a law regulating gender-motivated violence).
2. Gambling and the Leagues’ Contests,
Considered Separately or Together,
Substantially Affect Interstate Commerce
46
Guided by these principles, it is self-evident that the
activity PASPA targets, state-licensed wagering on sports,
may be regulated consistent with the Commerce Clause.
First, both wagering and national sports are economic
activities. A wager is simply a contingent contract involving
“two or more . . . parties, having mutual rights in respect to
the money or other thing wagered.” Gibson, 359 P.2d at 86;
see also N.J. Stat. Ann. §§ 5:12-21 (defining gambling as
engaging in a game “for money, property, checks, or any
representative of value”). There can also be no doubt that the
operations of the Leagues are economic activities, as they
preside essentially over for-profit entertainment. See, e.g.,
App. 1444 (NFL self-describing its “complex business model
that includes a diverse range of revenue streams, which
contribute . . . to company profitability”).
Second, there can be no serious dispute that the
professional and amateur sporting events at the heart of the
47
Leagues’ operations “substantially affect” interstate
commerce. The Leagues are associations comprised of
thousands of clubs and members, [App. 105], which in turn
govern the operations of thousands of sports teams organized
across the United States, competing for fans and revenue
across the country. “Thousands of Americans earn a . . .
livelihood in professional sports. Tens of thousands of others
participate in college sports.” Senate Report at 3557. Indeed,
some of the Leagues hold sporting events abroad, affecting
commerce with Foreign Nations.
Third, it immediately follows that placing wagers on
sporting events also substantially affects interstate commerce.
As New Jersey indicates, Americans gamble up to $500
billion on sports each year. [App. 330-31]. And whatever
effects gambling on sports may have on the games
themselves, those effects will plainly transcend state
boundaries and affect a fundamentally national industry.
48
Accordingly, we have deferred to Congressional
determinations that “gambling involves the use and has an
effect upon interstate commerce.” United States v. Riehl, 460
F.2d 454, 458 (3d Cir. 1972).
At bottom, it is clear that PASPA is aimed at an
activity that is “quintessentially economic” and that has
substantial effects on interstate commerce. See Raich, 545
U.S. at 19-20. Prohibiting the state licensing of this activity
is thus a “rational . . . means of regulating commerce” in this
area and within Congress’ power under the Commerce
Clause. Id. at 26.7
3. PASPA Does Not Unconstitutionally
Regulate Purely Local Activities
7
But see Federal Baseball Club of Balt. v. Nat’l League
of Prof’l Base Ball Clubs, 259 U.S. 200, 208-09 (1922)
(describing MLB’s business as “giving exhibitions of base
ball, which are purely state affairs,” and concluding that
baseball is not in interstate commerce for purposes of the
Sherman Antitrust Act).
49
Appellants nevertheless assert that PASPA is
unconstitutional because it “reaches unlimited betting activity
. . . that cannot possibly affect interstate commerce . . . [such
as] a casual bet on a Giants-Jets football game between
family members.” Br. of NJTHA at 34. Parsing words from
the statute, they insist PASPA reaches these activities because
it prohibits betting in “competitive games” involving
“amateur or professional athletes.” 28 U.S.C. § 3702. This
argument is meritless.
For one, PASPA on its face does not reach the
intrastate activities that Appellants contend it does. PASPA
prohibits only gambling “schemes” and only those carried out
“pursuant to law or compact.” 28 U.S.C. § 3702. The
activities described in Appellants’ examples are nor carried
out pursuant to state law, or pursuant to “a systemic plan; a
connected or orderly arrangement . . . [or] [a]n artful plot or
50
plan.” Black’s Law Dictionary (9th Ed. 2009) (defining
“scheme”).
Moreover, even entertaining that PASPA somehow
reaches these activities, Congressional action over them is
permissible if Congress has a “rational basis” for concluding
that the activity in the aggregate has a substantial effect on
interstate commerce. Raich, 545 U.S. at 22. The rule of an
unbroken line from Wickard v. Filburn, 317 U.S. 111 (1942),
to Raich—respectively upholding limitations on growing
wheat at home and personal marijuana consumption—is that
when it comes to legislating economic activity, Congress can
regulate “even activity that is purely intrastate in character . . .
where the activity, combined with like conduct by other
similarly situated, affects commerce among the States or with
foreign nations.” Nat’l League of Cities v. Usery, 426 U.S.
833, 840 (1976), overruled on other grounds by Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528 (1985)
51
(alterations omitted). And there can be no doubt that
Congress had a rational basis to conclude that the intrastate
activities at issue substantially affect interstate commerce,
given the reach of gambling, sports, and sports wagering into
the far corners of the economies of the states, documented
above.8
Appellants finally seek support in the Supreme Court’s
holding that the “individual mandate” of the Affordable Care
8
Moreover, if PASPA reaching activities that are purely
intrastate in nature were constitutionally problematic, we
would construe its language as not reaching such acts. After
all, “[t]he cardinal principle of statutory construction is to
save and not to destroy . . . . [A]s between two possible
interpretations of a statute, by one of which it would be
unconstitutional and by the other valid, our plain duty is to
adopt that which will save the act.” Jones & Laughlin Steel,
301 U.S. at 30. Appellants’ reading of PASPA to reach
casual bets between friends steamrolls that principle. At the
very worst, we would leave for another day the question of
whether PASPA may constitutionally be applied to such a
local wager. Appellants today have not shown that “no set of
circumstances exists under which the [challenged] Act would
be valid.” CMR D.N. Corp. v. City of Phila., 703 F.3d 612,
623 (3d Cir. 2013) (alteration in original).
52
Act is beyond Congress’ power under the Commerce Clause.
See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566(2012). But the problem in Sebelius was that the method
chosen to regulate (forcing into economic activity individuals
previously not in the market for health insurance) was beyond
Congress’ power. Here, the method of regulation, banning an
activity altogether (in this case the expansion of State-
sponsored sports betting), is neither novel nor problematic.
See, e.g., Raich, 545 U.S. at 27.
B. Whether PASPA Impermissibly Commandeers the
States
Having concluded that Congress may regulate sports
wagering consistent with the Commerce Clause, we turn to
PASPA’s operation in the case before us.
As noted, PASPA makes it “unlawful for a
governmental entity to . . . authorize by law or compact”
gambling on sports. 28 U.S.C. § 3702. This is classic
53
preemption language that operates, via the Constitution’s
Supremacy Clause, see U.S. CONST., art. VI, cl. 2, to
invalidate state laws that are contrary to the federal statute.
See, e.g., Am. Trucking Ass’ns v. City of Los Angeles, 133 S.
Ct. 2096, 2100-01, 2102 (2013) (explaining that the provision
of the Federal Aviation Administration Authorization Act of
1994 (“FAAAA”) that states a “‘State . . . may not enact or
enforce a law . . . related to a price, route, or service of any
motor carrier . . . with respect to the transportation of
property’ . . . preempts State laws related to a price, route, or
service of any motor carrier with respect to the transportation
of property” (quoting 49 U.S.C. § 14501(c)(1)). The Sports
Wagering Law is precisely what PASPA says the states may
not do—a purported authorization by law of sports wagering.
It is therefore invalidated by PASPA.9
9
This straightforward operation of the Supremacy
Clause, which operates on states laws that are foreclosed by a
54
Appellants do not contest any of the foregoing, but
argue instead that PASPA’s operation over the Sports
Wagering Law violates the “anti-commandeering” principle,
which bars Congress from conscripting the states into doing
the work of federal officials. The import of this argument,
then, is that impermissible anti-commandeering may occur
even when all a federal law does is supersede state law via the
Supremacy Clause. But the Supreme Court’s anti-
commandeering jurisprudence has never entertained this
position, let alone accepted it.
1. The Anti-Commandeering Principle
“As every schoolchild learns, our Constitution
establishes a system of dual sovereignty between the States
and the Federal Government.” Gregory v. Ashcroft, 501 U.S.
452, 457 (1991). And it is well-known that all powers not
stand-alone federal provision, is not to be confused with field
preemption of sports wagering, a topic we discuss at part
IV.B.2.d below.
55
explicitly conferred to the federal government are reserved to
the states, a maxim reflected in the text of the Tenth
Amendment. U.S. CONST., amdt. X; see also United States v.
Darby, 312 U.S. 100, 123-24 (1941) (describing this as a
“truism” embodied by the Tenth Amendment).
Among the important corollaries that flow from the
foregoing is that any law that “commandeers the legislative
processes of the States by directly compelling them to enact
and enforce a federal regulatory program” is beyond the
inherent limitations on federal power within our dual system.
Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S.
264, 283, 288 (1981). Stated differently, Congress “lacks the
power directly to compel the States to require or prohibit”
acts which Congress itself may require or prohibit. New York
v. United States, 505 U.S. 144, 166, 180 (1992). The
Supreme Court has struck down laws based on these
56
principles on only two occasions, both distinguishable from
PASPA.
(a) Permissible regulation in a pre-
emptible field: Hodel and FERC
The first modern, relevant incarnation of the anti-
commandeering principle appeared in Hodel v. Virginia
Surface Mining & Reclamation Ass’n. The law at issue there
imposed federal standards for coal mining on certain surfaces
and required any state that wished to “assume permanent
regulatory authority over . . . surface coal mining operations”
to “submit a proposed permanent program” to the Federal
Government, which, among other things, required the “state
legislature [to] enact[] laws implementing the environmental
protection standards established by the [a]ct.” Hodel, 452
U.S. at 271. If a particular state did not wish to implement
the federal standards, the federal government would step in to
do so. Id. at 272. The Supreme Court upheld the provisions,
57
noting that they neither compelled the states to adopt the
federal standards, nor required them “to expend any state
funds,” nor coerced them into “participat[ing] in the federal
regulatory program in any manner whatsoever.” Id. at 288.
The Court further concluded that Congress could have chosen
to completely preempt the field by simply assuming oversight
of the regulations itself. Id. It thus held that the Tenth
Amendment posed no obstacle to a system by which
Congress “chose to allow the States a regulatory role.” Id. at
290. As the Court later characterized Hodel, the scheme there
did not violate the anti-commandeering principle because it
“merely made compliance with federal standards a
precondition to continued state regulation in an otherwise pre-
empted field.” Printz v. United States, 521 U.S. 898, 926
(1997).
The next year, in F.E.R.C. v. Mississippi, the Court
upheld a provision requiring state utility regulatory
58
commissions to “consider” whether to enact certain standards
for energy efficiency but leaving to the states the ultimate
choice of whether to adopt those standards or not. 456 U.S.
742, 746, 769-70 (1982). The Court upheld the law despite
its outright commandeering of the state resources needed to
consider and study the federal standards, because the law did
not definitely require the enactment or implementation of
federal standards. Id. at 764. The Court, noting that
Congress had simply regulated where it could have “pre-
empt[ed] the States entirely” but instead chose to leave some
room for the states to maneuver, saw the case as “only one
step beyond Hodel.” Id.(b) Permissible Prohibitions on State
Action: Baker and Reno
In a different pair of anti-commandeering cases, the
Court upheld affirmative prohibitions on state action that
effectively invalidated contrary state laws and even required
59
the states to enact new measures. First, in South Carolina v.
Baker, the Supreme Court upheld the validity of laws that
“directly regulated the States by prohibiting outright the
issuance of bearer bonds.” 485 U.S. 505, 511 (1988). These
rules, which also applied to private debt issuers, required the
states to “amend a substantial number of statutes in order to
[comply].” Id. at 514. The Court concluded this result did
not run afoul the Tenth Amendment because it did not “seek
to control or influence the manner in which States regulate
private parties” but was simply “an inevitable consequence of
regulating a state activity,” id. In subsequent cases, the Court
explained that the regulation in Baker was permissible
because it simply “subjected a State to the same legislation
applicable to private parties.” New York, 505 U.S. at 160.
Then, in Reno v. Condon, the Court unanimously
rejected an anti-commandeering challenge to a law
prohibiting states from disseminating personal information
60
obtained by state departments of motor vehicles. South
Carolina complained that the act required its employees to
learn its provisions and expend resources to comply and,
indeed, the federal law effectively blocked the operation of
state laws governing the disclosure of that information. 528
U.S. at 150. The Court agreed “that the [act] will require time
and effort on the part of state employees” but otherwise
rejected the anti-commandeering challenge because, like the
law in Baker, the law “d[id] not require the States in their
sovereign capacity to regulate their own citizens[,] . . . d[id]
not require the [State] Legislature[s] to enact any laws or
regulations, and it d[id] not require state officials to assist in
the enforcement of federal statutes regulating private
individuals.” Id. at 151. Moreover, the law did not “seek to
control[] or influence the manner in which States regulate
private parties.” Id. (citing Baker, 485 U.S. at 514-15).
61
(c) Impermissible Anti-Commandeering:
New York and Printz
In contrast to the foregoing, the Court has twice struck
down portions of a federal law on anti-commandeering
grounds. The first was in New York v. United States, which
dealt with a law meant to regulate and encourage the orderly
disposal of low-level radioactive waste by the states. 505
U.S. at 149-54. The “most severe” aspect of the complex
system of measures established by the law, referred to as the
“take-title” provision, provided that if a particular state had
not been able to arrange for the disposal of the radioactive
waste by a specified date, then that state would have to take
title to the waste at the request of the waste’s generator. Id. at
153-54 (citing 42 U.S.C. § 2021e(d)(2)(C)). The Court,
based on the notion that “Congress may not simply
‘commandeer the legislative processes of the States by
directly compelling them to enact and enforce a federal
62
regulatory program,’” id. at 161 (quoting Hodel, 452 U.S. at
288) (alterations omitted), struck down the take-title
provision because it did just that: compel the states to either
enact a regulatory program, or expend resources in taking title
to the waste. Id. at 176. The Court noted that Congress may
enact measures to encourage the states to act and may “hav[e]
state law pre-empted by federal regulation” but concluded
that the take-title provision “crossed the line distinguishing
encouragement from coercion.” Id. at 167, 175. The Court
also emphasized that the anti-commandeering principle was
designed, in part, to stop Congress from blurring the line of
accountability between federal and state officials and from
skirting responsibility for its choices by foisting them on the
states. Id. at 168.
The Court then applied these principles, in Printz, to
invalidate the provisions of the Brady Act that required local
authorities of certain states to run background checks on
63
persons seeking to purchase guns. The Court held that
Congress “may neither issue directives requiring the States to
address particular problems, nor command the States’ officers
. . . to administer or enforce a federal regulatory program.”
521 U.S. at 935. The Court was also troubled that these
provisions required states to “absorb the financial burden of
implementing a federal regulatory program” and “tak[e] the
blame for its . . . defects.” Id. at 930.
To date, the schemes at issue in New York and Printz
remain the only two that the Supreme Court has struck down
under the anti-commandeering doctrine. Our Court has not
yet had occasion to consider an anti-commandeering
challenge.10
10
Three other cases complete the constellation of the
Supreme Court’s modern anti-commandeering jurisprudence
but deal with the applicability of federal labor laws to certain
State employees. See Nat’l League of Cities, 426 U.S. at 883;
Garcia, 469 U.S. at 528; Gregory, 501 U.S. at 452. These
cases are of marginal relevance, so we do not elaborate on
64
2. Whether PASPA Violates the Anti-
Commandeering Principle
(a) Anti-Commandeering and the
Supremacy Clause
Appellants’ arguments that PASPA violates anti-
commandeering principles run into an immediate problem:
not a single case that we have reviewed involved a federal
law that, like PASPA, simply operated to invalidate contrary
state laws. It has thus never been the case that applying the
Supremacy Clause to invalidate a state law contrary to federal
proscriptions is tantamount to direct regulation over the
states, to an invasion of their sovereignty, or to
commandeering. Most of the foregoing cases involved
Congress attempting to directly impose a federal scheme on
state officials. If anything, the federal laws in Reno and
them at length. See also Markell, 579 F.3d at 303 (rejecting
an argument that PASPA violates the sovereignty principles
set forth in Gregory).
65
Baker had the effect of invalidating certain contrary state laws
by prohibiting state action, and both survived. Indeed, the
Justices in both New York and Printz disclaimed any notion
that the anti-commandeering principle somehow suspends the
operation of the Supremacy Clause on otherwise valid laws.
For example, in Printz the Court explained that our
Constitutional structure requires “all state officials . . . to
enact, enforce, and interpret state law in such a fashion as not
to obstruct the operation of federal law, and the attendant
reality [is] that all state actions constituting such obstruction,
even legislative Acts, are ipso facto invalid.” 521 U.S. at
913; see also New York, 505 U.S. at 162 (noting that the
Commerce Clause permits Congress to “hav[e] state law pre-
empted by federal [law]”).
In light of the fact that the Supremacy Clause is the
Constitution’s answer to the problem that had made life
difficult under the Articles of Confederation—the lack of a
66
mechanism to enforce uniform national policies—accepting
Appellants’ position that a state’s sovereignty is violated
when it is precluded from following a policy different than
that set forth by federal law (as New Jersey seeks to do with
its Sports Wagering Law), would be revolutionary. See The
Federalist No. 44, at 323 (James Madison) (B. Fletcher ed.
1996) (explaining that without the Supremacy Clause “all the
authorities contained in the proposed Constitution . . . would
have been annulled, and the new Congress would have been
reduced to the same impotent condition with [the Articles of
Confederation]”).
And it is not hard to see why invalidating contrary
state law does not implicate a state’s sovereignty or otherwise
commandeer the states. When Congress passes a law that
operates via the Supremacy Clause to invalidate contrary state
laws, it is not telling the states what to do, it is barring them
from doing something they want to do. Anti-commandeering
67
challenges to statutes worded like PASPA have thus
consistently failed. See, e.g., Kelley v. United States, 69 F.3d
1503, 1510 (10th Cir. 1995) (upholding constitutionality of
intrastate motor carrier statute, noting that it preempted state
law and in doing so did not “compel[] the states to voluntarily
act by enacting or administering a federal regulatory
program”); California Dump Truck Owners Ass’n v. Davis,
172 F. Supp. 2d 1298, 1304 (E.D. Cal. 2001) (upholding
constitutionality of FAAAA provision against an anti-
commandeering challenge, noting that, unlike the laws in
New York and Printz, the FAAAA provision, insofar as it
merely preempts state law, “tell[s] states what not to do”).11
11
As the Leagues note, numerous federal laws are
framed to prohibit States from enacting or enforcing laws
contrary to federal standards, and these regulations all enjoy
different preemptive qualities. See, e.g., Farina v. Nokia, 625
F.3d 97, 130 (3d Cir. 2010) (noting that statute which
provides that “no State . . . shall have any authority to
regulate the entry of or the rates charged by any commercial
mobile service” is an express preemption provision);
68
To be sure, the Supremacy Clause elevates only laws
that are otherwise within Congress’ power to enact. See, e.g.,
New York, 504 U.S. at 166 (noting that Congress may not,
consistent with the Commerce Clause, “regulate state
governments’ regulation of interstate commerce”). But we
have held that Congress may prohibit state-licensed gambling
consistent with the Commerce Clause. The argument that
PASPA is beyond Congress’ authority thus hinges on the
notion that the invalidation of a state law pursuant to the
Commerce Clause has the same “commandeering” effect as
the federal laws struck down in New York and Printz. We
turn now to this contention.
MacDonald v. Monsanto, 27 F.3d 1021, 1024 (5th Cir. 1994)
(noting that law stating that a “State shall not impose or
continue in effect any requirement for labeling or packing”
pesticides is a preemption provision). The operation of these
and other provisions is called into question by Appellants’
view that the everyday operation of the Supremacy Clause
raises anti-commandeering concerns.
69
(b) PASPA is Unlike the Laws Struck Down
in New York and Printz
Appellants’ efforts to analogize PASPA to the
provisions struck down in New York and Printz are
unavailing. Unlike the problematic “take title” provision and
the background check requirements, PASPA does not require
or coerce the states to lift a finger—they are not required to
pass laws, to take title to anything, to conduct background
checks, to expend any funds, or to in any way enforce federal
law. They are not even required, like the states were in
F.E.R.C., to expend resources considering federal regulatory
regimes, let alone to adopt them. Simply put, we discern in
PASPA no “directives requiring the States to address
particular problems” and no “command[s] to the States’
officers . . . to administer or enforce a federal regulatory
program.” Printz, 521 U.S. at 935.
70
As the District Court correctly reasoned, the fact that
PASPA sets forth a prohibition, while the New York/Printz
regulations required affirmative action(s) on the part of the
states, is of significance. Again, it is hard to see how
Congress can “commandeer” a state, or how it can be found
to regulate how a state regulates, if it does not require it to do
anything at all. The distinction is palpable from the Supreme
Court’s anti-commandeering cases themselves. State laws
requiring affirmative acts may or may not be constitutional,
compare F.E.R.C., 456 U.S. at 761-63 (upholding statute
because requirement that states expend resources considering
federal standards was not commandeering) with Printz, 521
U.S. at 904-05 (finding requirement that states perform
background checks unconstitutional). On the other hand,
statutes prohibiting the states from taking certain actions have
never been struck down even if they require the expenditure
of some time and effort or the modification or invalidation of
71
contrary state laws, see Baker, 485 U.S. at 515; Reno, 528
U.S. at 150. As the District Court carefully demonstrated, in
all its anti-commandeering cases, the Supreme Court has been
concerned with conscripting the states into affirmative action.
See NCAA II, 2013 WL 772679, at *17.12
Recognizing the importance of the
affirmative/negative command distinction, Appellants assert
that PASPA does impose an affirmative requirement that the
states act, by prohibiting them from repealing anti-sports
12
The circuits that have considered anti-commandeering
challenges, although addressing laws that are fundamentally
different from PASPA, have similarly found this distinction
significant. See, e.g., Connecticut v. Physicians Health Servs.
of Conn., 287 F.3d 110, 122 (2d Cir. 2002) (holding that a
provision “limit[ing] states’ power to sue as parens patriae . .
. does not commandeer any branch of state government
because it imposes no affirmative duty of any kind on them”);
Fraternal Order of Police v. United States, 173 F.3d 898, 906
(D.C. Cir. 1999) (rejecting a commandeering challenge to a
statute that did “not force state officials to do anything
affirmative to implement” the statutory provision).
72
wagering provisions.13 We agree with Appellants that the
affirmative act requirement, if not properly applied, may
permit Congress to “accomplish exactly what the
commandeering doctrine prohibits” by stopping the states
from “repealing an existing law.” Conant v. Walters, 309
F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring). But
we do not read PASPA to prohibit New Jersey from repealing
its ban on sports wagering.
13
Appellants also rely on Coyle v. Smith, where the
Supreme Court struck down a law requiring Oklahoma to not
change the location of its capital within seven years of its
admission into the Union, 221 U.S. 559, 567 (1911), to lessen
the significance of the “affirmative act” requirement we distill
from the anti-commandeering cases. N.J. Br. 42, 44. But,
despite the Supreme Court’s citation to Coyle in New York,
see 505 U.S. at 162, Coyle did not turn on impermissible
commandeering. Instead, the Court struck down the statute as
being traceable to no power granted by Congress in the
Constitution, pertaining “purely to the internal polic[ies] of
the state,” and in violation of the principle that all states are
admitted on equal footing into the Union. Coyle, 221 U.S. at
565, 579. PASPA does not raise any of these concerns, and
neither do the modern anti-commandeering cases.
73
Under PASPA, “[i]t shall be unlawful for . . . a
governmental entity to sponsor, operate, advertise, promote,
license, or authorize by law or compact” a sports wagering
scheme. 28 U.S.C. § 3702(1) (emphasis added). Nothing in
these words requires that the states keep any law in place.
All that is prohibited is the issuance of gambling “license[s]”
or the affirmative “authoriz[ation] by law” of gambling
schemes. Appellants contend that to the extent a state may
choose to repeal an affirmative prohibition of sports
gambling, that is the same as “authorizing” that activity, and
therefore PASPA precludes repealing prohibitions on
gambling just as it bars affirmatively licensing it. This
argument is problematic in numerous respects. Most
basically, it ignores that PASPA speaks only of “authorizing
by law” a sports gambling scheme. We do not see how
having no law in place governing sports wagering is the same
as authorizing it by law. Second, the argument ignores that,
74
in reality, the lack of an affirmative prohibition of an activity
does not mean it is affirmatively authorized by law. The right
to do that which is not prohibited derives not from the
authority of the state but from the inherent rights of the
people. Indeed, that the Legislature needed to enact the
Sports Wagering Law itself belies any contention that the
mere repeal of New Jersey’s ban on sports gambling was
sufficient to “authorize [it] by law.” The amendment to New
Jersey’s Constitution itself did not purport to affirmatively
authorize sports wagering but indeed only gave the
Legislature the power to “authorize by law” such activities.
N.J. Const. Art. IV, § VII, ¶ 2 (D), (F). Thus, the New Jersey
Legislature itself saw a meaningful distinction between
repealing the ban on sports wagering and authorizing it by
law, undermining any contention that the amendment alone
was sufficient to affirmatively authorize sports wagering—the
Sports Wagering Law was required. Cf. Hernandez v. Robles,
75
855 N.E.2d 1, 5-6 (N.Y. 2006) (rejecting as “untenable” a
construction of a domestic relation law, silent on the matter of
the legality of same-sex marriages, as permitting such
unions). Congress in PASPA itself saw a difference between
general sports gambling activity and that which occurs under
the auspices of state approval and authorization, and chose to
reach private activity only to the extent that it is conducted
“pursuant to State law.”
In short, Appellants’ attempt to read into PASPA a
requirement that the states must affirmatively keep a ban on
sports gambling in their books rests on a false equivalence
between repeal and authorization and reads the term “by law”
out of the statute, ignoring the fundamental canon that, as
between two plausible statutory constructions, we ought to
prefer the one that does not raise a series of constitutional
problems. See Clark v. Martinez, 543 U.S. 371, 380-81
(2005).
76
To be sure, we take seriously the argument that many
affirmative commands can be easily recast as prohibitions.
For example, the background check rule of Printz could be
recast as a requirement that the states refrain from issuing
handgun permits unless background checks are conducted by
their officials. The anti-commandeering principle may not be
circumvented so easily. But the distinction between
PASPA’s blanket ban and Printz’s command, even if the
latter is recast as a prohibition, remains. PASPA does not say
to states “you may only license sports gambling if you
conscript your officials into policing federal regulations” or
otherwise impose any condition that the states carry out an
affirmative act or implement a federal scheme before they
may regulate or issue a license. It simply bars certain acts
under any and all circumstances. And if affirmative
commands may always be recast as prohibitions, then the
prohibitions in myriads of routine federal laws may always be
77
rephrased as affirmative commands. This shows that
Appellants’ argument proves too much—the anti-
commandeering cases, under that view, imperil a plethora of
acts currently termed as prohibitions on the states.
And, to the extent we entertain the notion that
PASPA’s straightforward prohibition on action may be recast
as presenting two options, these options are also quite unlike
the two coercive choices available in New York—pass a law
to deal with radioactive waste or expend resources in taking
title to it. Neither of PASPA’s two “choices” affirmatively
requires the states to enact a law, and both choices leave
much room for the states to make their own policy. Thus,
under PASPA, on the one hand, a state may repeal its sports
wagering ban, a move that will result in the expenditure of no
resources or effort by any official. On the other hand, a state
may choose to keep a complete ban on sports gambling, but it
is left up to each state to decide how much of a law
78
enforcement priority it wants to make of sports gambling, or
what the exact contours of the prohibition will be.
We agree that these are not easy choices. And it is
perhaps true (although there is no textual or other support for
the idea) that Congress may have suspected that most states
would choose to keep an actual prohibition on sports
gambling on the books, rather than permit that activity to go
on unregulated. But the fact that Congress gave the states a
hard or tempting choice does not mean that they were given
no choice at all, or that the choices are otherwise
unconstitutional. See United States v. Martinez-Salazar, 528
U.S. 304, 315 (2000) (“A hard choice is not the same as no
choice.”); see also F.E.R.C., 456 U.S. at 766 (upholding a
choice between expending state resources to consider federal
standards or abandoning field to federal regulation). And
however hard the choice is in PASPA, it is nowhere near as
coercive as the provisions in New York that punished states
79
unwilling to enact a regulatory scheme and that did pass
muster. See New York, 505 U.S. at 172, 173-74 (upholding a
provision permitting states with waste disposal sites to charge
more to non-compliant states and a statute taxing such states
to the benefit of compliant states); see also City of Abilene v.
EPA, 325 F.3d 657, 662 (5th Cir. 2003) (explaining that as
long as “the alternative to implementing a federal regulatory
program does not offend the Constitution’s guarantees of
federalism, the fact that the alternative is difficult, expensive
or otherwise unappealing is insufficient to establish a Tenth
Amendment violation”). PASPA imposes no punishment or
punitive tax. We also disagree with the suggestion that the
choices states face under PASPA are as coercive as the
Medicaid expansion provision struck down in Sebelius, which
threatened states unwilling to participate in a complex and
extensive federal regulatory program with the loss of funding
80
amounting to over ten percent of their overall budget.
Sebelius, 132 S. Ct. at 2581.
Finally, we note that the attempt to equate a ban on
state-sanctioned sports gambling to a plan by Congress to
force the states into banning the activity altogether gives far
too much credit to Congress’ strong-arming powers. The
attendant reality is that in the field of regulating certain
activities, such as gambling, prostitution, and drug use, states
have always gravitated towards prohibitions, regardless of
Congress’ efforts. Indeed, as noted, all but one state
prohibited broad state-sponsored gambling at the time
PASPA was enacted. Congress, by prohibiting state-licensing
schemes, may indeed have made it harder for states to turn
their backs on the choices they previously made (although in
PASPA it made it less hard for New Jersey), but that choice
was already very hard, and very unlikely to be made to begin
81
with (as New Jersey’s history with the regulation of sports
gambling also illustrates).
(c) PASPA as Regulating State Conduct—
Baker and Reno
Additionally, PASPA is remarkably similar to the
prohibitions on state action upheld in Baker and Reno.
Baker’s regulations prohibited the states from issuing bearer
bonds, which in turn required states to issue new regulations
and invalidated old ones; Reno’s anti-disclosure provisions
prohibited the states from disseminating certain information,
necessitating the expenditure of resources to comply with the
federally imposed prohibitions. To the extent PASPA makes
it unattractive for states to repeal their anti-sports wagering
laws, which in turn requires enforcement by states, the effort
PASPA requires is simply that the states enforce the laws
they choose to maintain, and is therefore plainly less intrusive
than the laws in Baker and Reno. PASPA also has the effect,
82
like the laws in those two cases, of rendering inoperative any
contrary state laws.
We are not persuaded by Appellants’ arguments that
Baker and Reno are inapposite. They contend, first, that Reno
is different because it involved regulation of the states in the
same way as private parties. But that overstates the
regulations at issue in Reno, which were directed at state
DMVs and only incidentally prohibited private persons from
further disseminating data they may obtain from the DMVs.
See 528 U.S. at 144. Indeed, the Reno Court did “not address
the question whether general applicability is a constitutional
requirement for federal regulation of the States.” Id. at 151.
And, as mentioned, PASPA does operate on private
individuals insofar as it prohibits them from engaging in
state-sponsored gambling. But private individuals cannot be
prohibited from issuing gambling licenses, because they have
never been able to do so. Second, we find no basis to
83
distinguish PASPA from the laws in Reno and Baker on the
ground that the latter regulate the states solely as participants
in the market. DMVs are uniquely state institutions; states
thus obtain information through the DMVs not as participants
in the market, but in their unique role as authorizers of
commercial activity. PASPA is no different: it regulates the
states’ permit-issuing activities by prohibiting the issuance of
the license altogether, as in Baker, where the state was
essentially prohibited from issuing the bearer bond. Third,
we decline to draw a distinction between PASPA and the
laws at issue in Reno and Baker on the ground that PASPA
involves a regulation of the states as states. The Supreme
Court’s anti-commandeering cases do not contemplate such
distinction.14
14
And, arguably, the Supreme Court’s Tenth
Amendment jurisprudence cautions against drawing lines
between activities that are “traditional” to state government
84
Despite the fact that PASPA is very similar to the
prohibition on state activity upheld unanimously in Reno,
Appellants insist that certain statements in that opinion
support its view that PASPA is unconstitutional. Appellants
insist that under Reno a law is unconstitutional if it requires
the states to govern according to Congress’ instructions or if
it “influences” the ways in which the states regulate their own
citizens. See N.J. Br. at 3, 18, 40, 42, 43, 45-46, 52. But no
one contends that PASPA requires the states to enact any
laws, and we have held that it also does not require states to
maintain existing laws. And one line from Reno, that the law
upheld there did not “control or influence the manner in
which States regulated private parties,” 528 U.S. at 142,
cannot possibly bear the great weight that Appellants would
hoist upon it. Most federal regulation inevitably influences
and those that are not. See Garcia, 469 U.S. at 546 (calling
such distinctions “unworkable”).
85
the manner in which states regulate private parties. If that
were enough to violate the anti-commandeering principle,
then Hodel and F.E.R.C. were wrongly decided. Indeed,
nowhere in Reno (or Baker, from where that line was quoted,
see id. (quoting Baker, 485 U.S. at 514)), did the Court
suggest that the absence of an attempt to influence how states
regulate private parties was required to avoid violating the
anti-commandeering principle.15
(d) The Sports Wagering Law Conflicts
With Federal Policy With Respect to
Sports Gambling and is Therefore
Preempted
15
The parties spar over how the accountability concerns
of anti-commandeering cases weigh here. But New York and
Printz make clear that they are not implicated when Congress
does not enlist the States in the implementation of a federal
regulatory program. To strike down any law that may cause
confusion as to whether a prohibition comes from the federal
government or from a State’s choice, before considering
whether that law actually commandeers the States, is to put
the cart before the horse. Indeed, the Supreme Court in Reno
rejected the notion that simply raising the specter of
accountability problems is enough to find an anti-
commandeering violation. See 528 U.S. at 150-51.
86
Alternatively, to the extent PASPA coerces the states
into keeping in place their sports-wagering bans, that coercion
may be upheld as fitting into the exception drawn in anti-
commandeering cases for laws that impose federal standards
over conflicting state rules, in areas where Congress may
otherwise preempt the field. Under this view, PASPA gives
states the choice of either implementing a ban on sports
gambling or of accepting complete deregulation of that field
as per the federal standard. In Hodel, for example, the choice
was implementing certain minimum-safety regulations or
living in a world where the federal government enforced
them.
PASPA makes clear that the federal policy with
respect to sports gambling is that such activity should not
occur under the auspices of a state license. As noted, PASPA
prohibits individuals from engaging in a sports gambling
scheme “pursuant to” state law. 28 U.S.C. § 3702(2). In
87
other words, even if the provision that offends New Jersey,
§ 3702(1), were excised from PASPA, § 3702(2) would still
plainly render the Sports Wagering Law inoperative by
prohibiting private parties from engaging in gambling
schemes pursuant to that authority. Thus, the federal policy
with respect to sports wagering that § 3702(2) evinces is
clear: to stop private parties from resorting to state law as a
cover for gambling on sports. The Sports Wagering Law, in
purporting to permit individuals to skirt § 3702(2),
“authorizes [private parties] to engage in conduct that the
federal [Act] forbids, [and therefore] it ‘stands as an obstacle
to the[] accomplishment and execution of the full purposes
and objectives of Congress,’” and accordingly conflicts with
PASPA and is preempted. See Mich. Canners & Freezers
Ass’n, Inc. v. Agric. Mktg. & Bargaining Bd., 467 U.S. 461,
469 (1984).16
16
New Jersey asks that we ignore this argument because
88
And there are other provisions in federal law, outside
of PASPA, aimed at protecting the integrity of sports from the
pall of wagering and that further demonstrate the federal
policy of disfavoring sports-gambling. Indeed, in enacting
PASPA, Congress explicitly noted that the law was
“complementary to and consistent with [then] current Federal
law” with respect to sports wagering. Senate Report at 3557.
Congress has, for example, criminalized attempts to fix the
outcome of a sporting event, 18 U.S.C. § 224, barred the
placement of a sports gambling bet through wire
it was not raised by the United States below. But it is
axiomatic that we may affirm on any ground apparent on the
record, particularly when considering de novo the
constitutionally of a Congressional enactment. The United
States may decide not to advance particular arguments, but
we may not, consistent with our duty to “save and not to
destroy,” Jones & Laughlin Steel, 301 U.S. at 30, use that
choice to declare unconstitutional an act of Congress. The
same may be said of arguments that the United States and the
Leagues’ reading of PASPA has changed throughout the
litigation and should therefore be discounted, see, e.g., Oral
Arg. Tr. 71:14-19 (June 26, 2013).
89
communications to or from a place where such bets are
illegal, 18 U.S.C. § 1084, and proscribed interstate
transportation of means for carrying out sports lotteries, 18
U.S.C. §§ 1301, 1307(d).17
Appellants contend that Congress has not preempted
state law but instead incorporated it to the extent certain
prohibitions are tied to whatever is legal under state law. But
PASPA itself is not tied to state law. Rather, PASPA
17
Appellants point to a statement in the Senate Report
wherein the Committee notes that, according to the
Congressional Budget Office, there would be “no cost to the
federal government . . . from enactment of this bill,” Senate
Report at 3561, as proof that PASPA seeks to foist upon the
states the responsibility for banning sports wagering. But this
statement is taken out of context. The import of it was that
PASPA would require no “direct spending or receipts” of
funds, id., but the Senate Report itself makes clear that the
Justice Department would use already-earmarked funds to
permit it to “enforce the law without utilizing criminal
prosecutions of State officials,” id. at 3557. For a report
issued well before the opinions in New York and Printz
delineated the contours of modern anti-commandeering
jurisprudence, the Senate Report is remarkably clear in that it
seeks to increase the federal government’s role in policing
sports wagering, not pass that obligation along to the states.
90
prohibits engaging in schemes pursuant to state law. 28
U.S.C. § 3702(2). To be sure, some of the other cited
provisions tie themselves to state law—but the Tenth
Amendment does not require that Congress leave less room
for the states to govern. Cf. F.E.R.C., 456 U.S. at 764 (noting
that there is no Tenth Amendment problem if Congress
“allow[s] the States to enter the field if they promulgate[]
regulations consistent with federal standards”).
Appellants also attempt to distinguish PASPA from
other preemptive schemes. They note that preemptive
schemes normally either impose an affirmative federal
standard or a rule of non-regulation, and that PASPA does not
impose an affirmative federal standard and cannot possibly be
construed as a law aimed at permitting unregulated sports
gambling because its aim was to stop the spread of sports
gambling. But, PASPA’s text and legislative history reflect
that its goal is more modest—to ban gambling pursuant to a
91
state scheme—because Congress was concerned that state-
sponsored gambling carried with it a label of legitimacy that
would make the activity appealing. Whatever else we may
think were Congress’ secret intentions in enacting PASPA,
nothing we know of speaks to a desire to ban all sports
wagering. Moreover, the argument once again ignores that
PASPA does impose a federal standard directly on private
individuals, telling them, essentially, thou shall not engage in
sports wagering under the auspices of a state-issued license.
See 28 U.S.C. § 3702(2).
***
We hold that PASPA does not violate the anti-
commandeering doctrine. Although many of the principles
set forth in anti-commandeering cases may abstractly be used
to support Appellants’ position, doing so would result in an
undue expansion of the anti-commandeering doctrine. If
attempting to influence the way states govern private parties,
92
or requiring the expenditure of resources, or giving the states
hard choices, were enough to violate anti-commandeering
principles, then what of Hodel, F.E.R.C., Baker, and Reno?
The overriding of contrary state law via the Supremacy
Clause may result in influencing or changing state policies,
but there is nothing in the anti-commandeering cases to
suggest that the principle is meant to apply when a law
merely operates via the Supremacy Clause to invalidate
contrary state action. Missing here is an affirmative
command that the states enact or carry out a federal scheme
and PASPA is simply nothing like the only two laws struck
down under the anti-commandeering principle. Several
important points buttress our conclusion: first, PASPA
operates simply as a law of pre-emption, via the Supremacy
Clause; second, PASPA thus only stops the states from doing
something; and, finally, PASPA’s policy of stopping state-
sanctioned sports gambling is confirmed by the independent
93
prohibition on private activity pursuant to any such law.
When so understood, it is clear that PASPA does not
commandeer the states.
C. Whether PASPA Violates the Equal Sovereignty of
the States
Finally, we address Appellants’ contention that
PASPA violates the equal sovereignty of the states by
singling out Nevada for preferential treatment and allowing
only that State to maintain broad state-sponsored sports
gambling.
1. Equal Sovereignty Cases—Northwest Austin
and Shelby County
The centerpiece of Appellants’ equal sovereignty
argument is the Supreme Court’s analysis of the Voting
Rights Act of 1965 (“VRA”) in Northwest Austin Municipal
Utility District Number One v. Holder, 557 U.S. 193 (2009),
and Shelby County, Alabama v. Holder, 133 S. Ct. 261294
(2013). In Northwest Austin, the Supreme Court was asked
by a small utility district to rule on the constitutionality of § 5
of the VRA, which required the district to obtain preclearance
from federal authorities before it could make changes to the
manner in which its board was elected. The district had
sought an exemption from the preclearance requirement, but
the district court held that only states are eligible for such
“bailouts” under the Act. Nw. Austin, 557 U.S. at 196-97.
On direct appeal, the Supreme Court stated that § 5 raises
“federalism concerns” because it “differentiates between the
States.” Id. at 203. The Court also explained that
“[d]istinctions [between the states] can be justified in some
cases” such as when Congress enacts “remedies for local
evils which have subsequently appeared.” Id. (citing South
Carolina v. Katzenbach, 383 U.S. 301, 328-29 (1966)).
However, the Court did not ultimately decide whether § 5
violated the equal sovereignty principle, invoking instead the
95
canon of constitutional avoidance to construe the VRA’s
bailout provision to permit the district to obtain an exemption.
Id. at 205.
In Shelby County, when asked to revisit the
constitutionality of § 5, the Court reiterated the “basic
principles” of equal sovereignty set forth in Northwest Austin
and invalidated § 4(b) of the VRA, which set forth a formula
used to determine what jurisdictions are covered by § 5
preclearance. 133 S. Ct. at 2622, 2630-31. Nevertheless, § 5
once more survived despite the expressed equal sovereignty
concerns. Id. at 2631.
Appellants ask that we leverage these statements to
strike down all of PASPA because it permits Nevada to
license sports gambling. We decline to do so. First, the VRA
is fundamentally different from PASPA. It represents, as the
Supreme Court explained, “an uncommon exercise of
congressional power” in an area “the Framers of the
96
Constitution intended the States to keep for themselves . . .
the power to regulate elections.” Shelby County, 133 S. Ct. at
2623, 2624. The regulation of gambling via the Commerce
Clause is thus not of the same nature as the regulation of
elections pursuant to the Reconstruction Amendments.
Indeed, while the guarantee of uniformity in treatment
amongst the states cabins some of Congress’ powers, see,
e.g., U.S. CONST., art. I., § 8, cl. 1 (requiring uniformity in
duties and imposts); id. § 9, cl. 6 (requiring uniformity in
regulation of state ports), no such guarantee limits the
Commerce Clause. This only makes sense: Congress’
exercises of Commerce Clause authority are aimed at matters
of national concern and finding national solutions will
necessarily affect states differently; accordingly, the
Commerce Clause, “[u]nlike other powers of [C]ongress[,] . .
. does not require geographic uniformity.” Morgan v.
97
Virginia, 328 U.S. 373, 388 (1946) (Frankfurter, J.,
concurring).
Second, New Jersey would have us hold that laws
treating states differently can “only” survive if they are meant
to “remedy local evils” in a manner that is “sufficiently
related to the problem that it targets.” N.J. Br. at 55. This
position is overly broad in that it requires the existence of a
one-size-fits-all test for equal sovereignty analysis, which, as
the foregoing shows, is a perilous proposition in the context
of the Commerce Clause. And Northwest Austin’s statement
that equal sovereignty may yield when local evils appear was
made immediately after the statement that regulatory
“[d]istinctions can be justified in some cases.” 557 U.S. at
203 (emphasis added). Thus, local evils appear to be but one
of the types of cases in which a departure from the equal
sovereignty principle is permitted.
98
Third, there is nothing in Shelby County to indicate
that the equal sovereignty principle is meant to apply with the
same force outside the context of “sensitive areas of state and
local policymaking.” Shelby County, 133 S. Ct. at 2624. We
“had best respect what the [Court’s] majority says rather than
read between the lines. . . . If the Justices are pulling our leg,
let them say so.” Sherman v. Cmty. Consol. Sch. Dist. 21 of
Wheeling Twp., 980 F.2d 437, 448 (7th Cir. 1992).
Fourth, even accepting that the equal sovereignty
principle applies in the same manner in the context of
Commerce Clause legislation, we have no trouble concluding
that PASPA passes muster. Appellants’ argument that
PASPA’s exemption does not properly remedy local evils
because it “target[ed] the States in which legal sports
wagering was absent,” N.J. Br. at 56 (emphasis omitted),
again distorts PASPA’s purpose as being to wipe out sports
gambling altogether. When the true purpose is considered—
99
to stop the spread of state-sanctioned sports gambling—it is
clear that regulating states in which sports-wagering already
existed would have been irrational. Targeting only states
where the practice did not exist is thus more than sufficiently
related to the problem, it is precisely tailored to address the
problem. If anything, Appellants’ quarrel seems to be with
PASPA’s actual goal rather than with the manner in which it
operates.
Finally, Appellants ignore another feature that
distinguishes PASPA from the VRA—that far from singling
out a handful of states for disfavored treatment, PASPA treats
more favorably a single state. Indeed, it is noteworthy that
Appellants do not ask us to invalidate § 3704(a)(2), the
Nevada grandfathering provision that supposedly creates the
equal sovereignty problem. Instead, we are asked to strike
down § 3702, PASPA’s general prohibition on state-licensed
sports gambling. Appellants do not explain why, if PASPA’s
100
preferential treatment of Nevada violates the equal-
sovereignty doctrine, the solution is not to strike down only
that exemption. The remedy New Jersey seeks—a complete
invalidation of PASPA—does far more violence to the
statute, and would be a particularly odd result given the law’s
purpose of curtailing state-licensed gambling on sports. That
New Jersey seeks Nevada’s preferential treatment, and not a
complete ban on the preferences, undermines Appellants’
invocation of the equal sovereignty doctrine.
2. Grandfathering Clause Cases
Appellants also argue that PASPA’s exemption for
Nevada is invalid under the Supreme Court’s analysis in City
of New Orleans v. Dukes, 427 U.S. 297 (1976), and
Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981), of
grandfathering provisions in economic legislation. But in
both cases the Supreme Court upheld the provisions: in
Dukes, an ordinance that banned push cart vendors from New
101
Orleans’ historic district, but grandfathered those of a certain
vintage, 427 U.S. at 305; in Clover Leaf, a statute banning the
sale of milk in non-recyclable containers but grandfathering
non-recyclable paper containers, 449 U.S. at 469.
Two cases upholding economic ordinances aimed at
private parties have little to say about state sovereignty.
While Appellants contend that Dukes and Clover Leaf
Creamery support their position because they upheld
temporary grandfathering clauses, there was no indication in
either case that the clauses upheld were indeed temporary,
that the legislatures were obligated to rescind them in the
future, or even that the supposedly temporal quality of the
laws was the basis of the Court’s holdings, other than a
statement in passing in Dukes that the legislature had chosen
102
to “initially” target only a particular class of products. 427
U.S. at 305.18
Appellants note that there is no case where a court has
“permitted a grandfathering rationale to serve as a
justification for violating the fundamental principle of equal
sovereignty.” N.J. Br. at 59. But it is not hard to see why this
is the case: only two Supreme Court cases in modern times
have applied the equal sovereignty principle.19
18
Nor does our decision in Delaware River Basin
Commission v. Bucks County Water & Sewer Authority
support the notion that permanent grandfathering clauses are
invalid, given that in that case we simply remanded for
development of a record as to why the law at issue contained
a grandfathering provision. 641 F.2d 1087, 1096-98 (3d Cir.
1981). PASPA’s legislative history is clear as to the purpose
behind its own exemptions, and thus survives Delaware River
Basin.
19
Appellants also rely on the so-called “equal footing”
principle, the notion that Congress may not burden a new
state’s entry into the Union by disfavoring them over other
states in support of their attack on Nevada’s exemption. See,
e.g., Escanaba & Lake Mich. Transp. v. Chicago, 107 U.S.
678, 689 (1883) (explaining that whatever restriction may
103
V. CONCLUSION
If baseball is a game of inches, constitutional
adjudication may be described as a matter of degrees. The
questions we have addressed are in many ways sui generis.
Neither the standing nor the merits issues we have tackled
permit an easy solution by resorting to a controlling case that
provides a definitive “Eureka!” moment. Our role thus is to
distill an answer from precedent and the principles embodied
therein. But we are confident that our adjudication of this
dispute and our resolution of its merits leave us well within
the strict bounds set forth by the Constitution and preserves
intact the state-federal balance of power.
have been imposed over Illinois’ ability to regulate the
operation of bridges over the Chicago River, such restrictions
disappeared once Illinois was admitted into the Union as a
state); Coyle, 221 U.S. at 567 (holding that Congress may not
require Oklahoma to not change its capital as a condition of
admission into the Union). But PASPA does not speak to
conditions of admission into the Union.
104
Having examined the difficult legal issues raised by
the parties, we hold that nothing in PASPA violates the U.S.
Constitution. The law neither exceeds Congress’ enumerated
powers nor violates any principle of federalism implicit in the
Tenth Amendment or anywhere else in our Constitutional
structure. The heart of Appellants’ constitutional attack on
PASPA is their reliance on two doctrines that—while of
undeniable importance—have each only been used to strike
down notably intrusive and, indeed, extraordinary federal
laws. Extending these principles as Appellants propose
would result in significant changes to the day-to-day
operation of the Supremacy Clause in our constitutional
structure. Moreover, we see much daylight between the
exceedingly intrusive statutes invalidated in the anti-
commandeering cases and PASPA’s much more
straightforward mechanism of stopping the states from
lending their imprimatur to gambling on sports.
105
New Jersey and any other state that may wish to
legalize gambling on sports within their borders are not left
without redress. Just as PASPA once gave New Jersey
preferential treatment in the context of gambling on sports,
Congress may again choose to do so or, more broadly, may
choose to undo PASPA altogether. It is not our place to usurp
Congress’ role simply because PASPA may have become an
unpopular law. The forty-nine states that do not enjoy
PASPA’s solicitude may easily invoke Congress’ authority
should they so desire.
The District Court’s judgment is AFFIRMED.
106
Nat’l Collegiate Athletic Ass’n, et al. v. Governor of the State of N.J., et al., Nos. 13-
1713, 13-1714, 13-1715
VANASKIE, Circuit Judge, concurring in part and dissenting in part.
I agree with my colleagues that the Leagues have standing to challenge New
Jersey’s Sports Wagering Law, N.J. Stat. Ann. § 5:12A-2, and that the Professional and
Amateur Sports Protection Act (“PASPA”), 28 U.S.C. § 3702, does not violate the
principle of “equal sovereignty.” I therefore join parts III and IV.C of the majority’s
decision in full. I also agree that, ordinarily, Congress has the authority to regulate
gambling pursuant to the Commerce Clause, and thus I join part IV.A of the majority
opinion as well. Yet, PASPA is no ordinary federal statute that directly regulates
interstate commerce or activities substantially affecting such commerce. Instead, PASPA
prohibits states from authorizing sports gambling and thereby directs how states must
treat such activity. Indeed, according to my colleagues, PASPA essentially gives the
states the choice of allowing totally unregulated betting on sporting events or prohibiting
all such gambling. Because this congressional directive violates the principles of
federalism as articulated by the Supreme Court in United States v. New York, 505 U.S.
142 (1992), and Printz v. United States, 521 U.S. 898 (1997), I respectfully dissent from
that part of the majority’s opinion that upholds PASPA as a constitutional exercise of
congressional authority.
I.
I agree with my colleagues that an appropriate starting point for addressing
Appellants’ claims is Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S.
1
264 (1981). In Hodel, the Court reviewed the constitutionality of the federal Surface
Mining Control and Reclamation Act, a comprehensive statutory scheme designed to
regulate against the harmful effects of surface coal mining. Id. at 268. The act permitted
states that wished to exercise permanent regulatory authority over surface coal mining to
submit plans that met federal standards for federal approval. Id. at 271. In addition, the
federal government created a federal enforcement program for states that did not obtain
federal approval for state plans. Id. at 272. Applying the framework set forth in the
since-overruled case, National League of Cities v. Usery, 426 U.S. 833 (1976), overruled
by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), the Court
concluded that the act did not regulate “‘States as States’” because the challenged
provisions governed only private individuals’ and business’ activities and because “the
States are not compelled to enforce the . . . standards, to expend any state funds, or to
participate in the federal regulatory program in any manner whatsoever.” Id. at 287-88.
The Court further explained that
[i]f a State does not wish to submit a proposed permanent
program that complies with the Act and implementing
regulations, the full regulatory burden will be borne by the
Federal Government. Thus, there can be no suggestion that
the Act commandeers the legislative processes of the States
by directly compelling them to enact and enforce a federal
regulatory program.
Id. at 288. Even post-Garcia, the Court has explained that the act at issue in Hodel
presented no Tenth Amendment problem “because it merely made compliance with
federal standards a precondition to continued state regulation in an otherwise pre-empted
field.” Printz, 521 U.S. at 926.
2
As the majority points out, a year later, in FERC v. Mississippi, 456 U.S. 742(1982), the Court upheld the constitutionality of two titles of the Public Utility
Regulatory Policies Act (“PURPA”), which directed state regulatory authorities to
“consider” certain standards and approaches to regulate energy and prescribed certain
procedures, but did not require the state authorities to adopt or implement specified
standards. Id. at 745-50. As in Hodel, the Court observed that Congress had authority to
preempt the field at issue—in FERC’s case, energy regulation. Id. at 765. The Court
explained:
PURPA should not be invalid simply because, out of
deference to state authority, Congress adopted a less intrusive
scheme and allowed the States to continue regulating in the
area on the condition that they consider the suggested federal
standards. While the condition here is affirmative in nature—
that is, it directs the States to entertain proposals—nothing in
this Court’s cases suggests that the nature of the condition
makes it a constitutionally improper one. There is nothing in
PURPA “directly compelling” the States to enact a legislative
program. In short, because the two challenged Titles simply
condition continued state involvement in a pre-emptible area
on the consideration of federal proposals, they do not threaten
the States’ “separate and independent existence,” Lane
County v. Oregon, 7 Wall. 71, 76, 19 L.Ed. 101 (1869); Coyle
v. Oklahoma, 221 U.S. 559, 580, 31 S.Ct. 688, 695, 55 L.Ed.
853 (1911), and do not impair the ability of the States “to
function effectively in a federal system.” Fry v. United
States, 421 U.S., at 547, n.7, 95 S.Ct., at 1795, n.7; National
League of Cities v. Usery, 426 U.S., at 852, 96 S.Ct., at 2474.
To the contrary, they offer the States a vehicle for remaining
active in an area of overriding concern.
Id. at 765-66.
Subsequently, the Supreme Court struck down provisions in two cases based on
violations of federalism principles. At issue in the first case, New York, was a federal
3
statute that intended to incentivize “States to provide for the disposal of low level
radioactive waste generated within their borders.” New York, 505 U.S. at 170. As “an
alternative to regulating pursuant to Congress’ direction,” one of the “incentives”
provided states the “option of taking title to and possession of the low level radioactive
waste . . . and becoming liable for all damages waste generators suffer[ed] as a result of
the State’s failure to do so promptly.” Id. at 174-75. At the outset, the Court
characterized the issue before it as “concern[ing] the circumstances under which
Congress may use the State as implements of regulation; that is, whether Congress may
direct or otherwise motivate the States to regulate in a particular field or a particular
way.” Id. at 161.
The Court in New York held the “take title” provision unconstitutional because it
“‘commandeer[ed] the legislative processes of the States by directly compelling them to
enact and enforce a federal regulatory program’” in violation of the principles of
federalism. Id. at 176 (quoting Hodel, 452 U.S. at 288). The Court explained that “even
where Congress has the authority under the Constitution to pass laws requiring or
prohibiting certain acts, it lacks the power directly to compel the States to require or
prohibit those acts.” Id. at 166 (emphasis added). It further elaborated that “[t]he
allocation of power contained in the Commerce Clause, for example, authorizes Congress
to regulate interstate commerce directly; it does not authorize Congress to regulate state
governments’ regulation of interstate commerce.” Id. (emphasis added).
Second, in Printz, the Court reviewed a temporary federal statutory provision that
required certain state law enforcement officers to conduct background checks on
4
potential handgun purchasers as part of a federal regulatory scheme. Printz, 521 U.S. at
903-04. Observing that “‘[t]he Federal Government may not compel the States to enact
or administer a federal regulatory program,’” id. at 933 (quoting New York, 505 U.S. at
188), the Court held that “Congress cannot circumvent that prohibition by conscripting
the State’s officers directly.” Id. at 935. The Court further explained that Congress
categorically “may neither issue directives requiring the States to address particular
problems, nor command the States’ officers, or those of their political subdivisions, to
administer or enforce a federal regulatory program.” Id.
Later, in Reno v. Condon, 528 U.S. 141 (2000), a case the majority regards as
“remarkably similar” to the matter sub judice, (Maj. Op. 43), a unanimous Court held that
the Driver’s Privacy Protection Act (“DPPA”), a generally applicable law which
regulates the disclosure and resale by states and private persons of personal information
contained in state department of motor vehicle records, “did not run afoul of the
federalism principles enunciated in New York . . . and Printz.” Id. at 143, 146, 151. After
first determining that the DPPA was a proper exercise of congressional authority under
the Commerce Clause, the Court rejected South Carolina’s argument that the act violated
federalism principles because it would “require time and effort on the part of state
employees.” Id. at 148, 150. Finding New York and Printz inapplicable, the Court relied
instead on South Carolina v. Baker, 485 U.S. 505 (1988),1 which “upheld a statute that
prohibited States from issuing unregistered bonds because the law ‘regulate[d] state
1
The majority also characterizes Baker as “remarkably similar” to PASPA’s
prohibition of state action. (Maj. Op. 43.)
5
activities,’ rather than ‘seeking[ing] to control or influence the manner in which States
regulate private parties.’” Reno, 528 U.S. at 150 (quoting Baker, 485 U.S. at 514-15).2
The Court further explained:
The DPPA does not require the States in their sovereign
capacity to regulate their own citizens. The DPPA regulates
the States as the owners of data bases. It does not require the
South Carolina Legislature to enact any laws or regulations,
and it does not require state officials to assist in the
enforcement of federal statutes regulating private individuals.
Id. at 151.
Most recently, in National Federation of Independent Business v. Sebelius, 132 S.
Ct. 2566 (2012), the Court struck down, as violative of the Spending Clause, a provision
in the Patient Protection and Affordable Care Act (“ACA”) that would have withheld
federal Medicaid grants to states unless they expanded their Medicaid eligibility
requirements in accordance with conditions in the ACA. Id. at 2581-82, 2606-07
2
In Baker, the Court observed:
The [intervenor] nonetheless contends that § 310 has
commandeered the state legislative and administrative
process because many state legislatures had to amend a
substantial number of statutes in order to issue bonds in
registered form and because state officials had to devote
substantial effort to determine how best to implement a
registered bond system. Such “commandeering” is, however,
an inevitable consequence of regulating a state activity. Any
federal regulation demands compliance. That a State wishing
to engage in certain activity must take administrative and
sometimes legislative action to comply with federal standards
regulating that activity is a commonplace that presents no
constitutional defect.
Baker, 485 U.S. at 514-15.
6
(plurality). Quoting New York, Chief Justice Roberts, writing for a three-justice plurality,
observed that “‘the Constitution has never been understood to confer upon Congress the
ability to require the States to govern according to Congress’ instructions.’” Id. at 2602
(quoting New York, 505 U.S. at 162). The plurality then explained that, based on that
principle, New York and Printz had struck down federal statutes that “commandeer[ed] a
State’s legislative or administrative apparatus for federal purposes.” Id. The plurality
also noted that, within the authority of the Spending Clause, Congress may not create
“inducements to exert a power akin to undue influence” where “pressure [would] turn[]
into compulsion.” Id. (internal quotations omitted). Recognizing that “‘[t]he
Constitution simply does not give Congress the authority to require the States to
regulate,’” the plurality observed that “[t]hat is true whether Congress directly commands
a State to regulate or indirectly coerces a State to adopt a federal regulatory system of its
own.” Id. (quoting New York, 505 U.S. at 178). The plurality ultimately concluded that
the Medicaid conditions were unduly coercive and reiterated that “Congress may not
simply ‘conscript state [agencies] into the national bureaucratic army.’” Id. at 2604,
2606-07 (quoting FERC, 456 U.S. at 775 (O’Connor, J., concurring in judgment in part
and dissenting in part)).
While Chief Justice Roberts’ opinion concerning the Medicaid expansion
provisions in Sebelius garnered the signatures of only three justices, the four dissenting
justices also invoked the federalism principles of New York in concluding that the
funding conditions in the Medicaid expansion impermissibly compelled states to govern
as directed by Congress by coercing states’ participation in the expanded program. Id. at
7
2660-62 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). Thus, seven justices
found the Medicaid expansion unconstitutional, citing the federalism principles
articulated in New York as part of the basis for their conclusion. Importantly, the seven-
justice rejection of the Medicaid expansion based, in part, on New York, represents a clear
signal from the Court that the principles enunciated in New York are not limited to a
narrow class of cases in which Congress specifically directs a state legislature to
affirmatively enact legislation. Cf. United States v. Richardson, 658 F.3d 333, 340 (3d
Cir. 2011) (observing that even if not binding due to the votes of a splintered Court, “the
collective view of [a majority of] justices is, of course, persuasive authority”).
II.
New York and Printz clearly established that the federal government cannot direct
state legislatures to enact legislation and state officials to implement federal policy. It is
true that the two particular statutes under review in those cases involved congressional
commands that states affirmatively enact legislation, see New York, 505 U.S. at 176-77,
or affirmatively enforce a federal regulatory scheme, see Printz, 521 U.S. at 935.
Nothing in New York or Printz, however, limited the principles of federalism upon which
those cases relied to situations in which Congress directed affirmative activity on the part
of the states. Rather, the general principle articulated by the Court in New York was that
even where Congress has the authority under the Constitution
to pass laws requiring or prohibiting certain acts, it lacks the
power directly to compel the States to require or prohibit
those acts. The allocation of power contained in the
Commerce Clause, for example, authorizes Congress to
regulate interstate commerce directly; it does not authorize
8
Congress to regulate state governments’ regulation of
interstate commerce.
New York, 505 U.S. at 166 (emphasis added) (citations omitted). Here, it cannot be
disputed that PASPA “regulate[s] state governments’ regulation of interstate commerce.”
See id. States regulate gambling, in part, by licensing or authorizing such activity. By
prohibiting states from licensing or authorizing sports gambling, PASPA dictates the
manner in which states must regulate interstate commerce and thus contravenes the
principles of federalism set forth in New York and Printz.3
If the objective of the federal government is to require states to regulate in a
manner that effectuates federal policy, any distinction between a federal directive that
commands states to take affirmative action and one that prohibits states from exercising
their sovereignty is illusory. Whether stated as a command to engage in specific action or
as a prohibition against specific action, the federal government’s interference with a
state’s sovereign autonomy is the same. Moreover, the recognition of such a distinction
is untenable, as affirmative commands to engage in certain conduct can be rephrased as a
prohibition against not engaging in that conduct. Surely the structure of Our Federalism
does not turn on the phraseology used by Congress in commanding the states how to
3
I agree with my colleagues that Congress has the authority under the Commerce
Clause to ban gambling on sporting events, and that such a ban could include state-
licensed gambling. I part company with my colleagues because that is not what PASPA
does. Instead, PASPA conscripts the states as foot soldiers to implement a congressional
policy choice that wagering on sporting events should be prohibited to the greatest extent
practicable. Contrary to the majority’s view, the Supremacy Clause simply does not give
Congress the power to tell the states what they can and cannot do in the absence of a
validly-enacted federal regulatory or deregulatory scheme. As explained at pages 13-14,
infra, there is no federal regulatory or deregulatory scheme on the matter of sports
wagering. Instead, there is the congressional directive that states not allow it.
9
regulate. An interpretation of federalism principles that permits congressional negative
commands to state governments will eviscerate the constitutional lines drawn in New
York and Printz that recognized the limit to Congress’s power to compel state
instrumentalities to carry out federal policy.
In addition, PASPA implicates the political accountability concerns voiced by the
Supreme Court in New York and Printz. In New York, the Court observed that when the
federal government preempts an area with a federal law to impose its view on an issue, it
“makes the decision in full view of the public, and it will be federal officials that suffer
the consequences if the decision turns out to be detrimental or unpopular.” New York,
505 U.S. at 168. In contrast, the Court explained, “where the Federal Government directs
the States to regulate, it may be state officials who will bear the brunt of public
disapproval, while the federal officials who devised the regulatory program may remain
insulated from the electoral ramifications of their decision.” Id. at 169. The Court also
recognized in Printz that in situations where Congress compels state officials to
“implement[] a federal regulatory program, Members of Congress can take credit for
‘solving’ problems without having to ask their constituents to pay for the solutions with
higher federal taxes” and that states “are . . . put in the position of taking the blame for
[the federal program’s] burdensomeness and for its defects.” Printz, 521 U.S. at 930.
Although PASPA does not “direct[] the States to regulate,” New York, 505 U.S. at 169, or
“implement[] a federal regulatory program,” Printz, 521 U.S. at 930, its prohibition on
state authorization and licensing of sports gambling similarly diminishes the
accountability of federal officials at the expense of state officials. Instead of directly
10
regulating or banning sports gambling, Congress passed the responsibility to the states,
which, under PASPA, may not authorize or issue state licenses for such activities. New
Jersey law regulates games of chance, see N.J. Stat. Ann. § 5:8-1, et seq., state lotteries,
see id. § 5:9-1, et seq., and casino gambling within the state, see id. § 5:12-1, et seq. As a
result, it would be natural for New Jersey citizens to believe that state law governs sports
gambling as well. That belief would be further supported by the fact that the voters of
New Jersey recently passed a state constitutional amendment permitting sports gambling
and their representatives in the state legislature subsequently enacted the Sports
Wagering Law, at issue here, to regulate such activity. When New Jersey fails to
authorize or license sports gambling, its citizens will understandably blame state officials
even though state regulation of gambling has become a puppet of the federal government,
whose strings are in reality pulled (or cut) by PASPA. States can authorize and regulate
some forms of gambling, e.g., lotteries and casinos, but not other forms of gambling to
implement policy choices made by Congress. Thus, accountability concerns arising from
PASPA’s restraint on state regulation also counsel in favor of concluding that it violates
principles of federalism.
I do not suggest that the federal government may not prohibit certain actions by
state governments—indeed it can. If Congress identifies a problem that falls within its
realm of authority, it may provide a federal solution directly itself or properly incentivize
states to regulate or comply with federal standards. For example, if Congress chooses to
regulate (or deregulate) directly, it may require states to refrain from enacting their own
regulations that, in Congress’s judgment, would thwart its policy objectives. Illustrating
11
this point, the Supreme Court held in Morales v. Trans World Airlines, Inc., 504 U.S. 374(1992), that the federal Airline Deregulation Act, which “prohibit[ed] the States from
enforcing any law ‘relating to rates, routes, or services’ of any air carrier” preempted
guidelines regarding fair advertising set forth by an organization of state attorneys
general. Id. at 378-79, 391. There, as the Court explained, the purpose of the federal
prohibition against further state regulation was “[t]o ensure that the States would not
undo federal deregulation with regulation of their own.” Id. at 378. Thus, a state law
contrary to a federal regulatory or deregulatory scheme is void under the Supremacy
Clause.4
Unlike in Morales and other preemption cases in which federal legislation limits
the actions of state governments, in this case, there is no federal scheme regulating or
deregulating sports gambling by which to preempt state regulation. PASPA provides no
federal regulatory standards or requirements of its own. Instead, it simply prohibits states
from “sponsor[ing], operat[ing], advertis[ing], promot[ing], licens[ing], or authoriz[ing]”
gambling on sports. 28 U.S.C. § 3702(1). And, PASPA certainly cannot be said to be a
deregulatory measure, as its purpose was to stem the spread of state-sponsored sports
gambling, not let it go unregulated.5 See S. Rep. No. 102-248, at 3 (1991) (“The purpose
4
Significantly, the majority opinion does not cite any case that sustained a federal
statute that purported to regulate the states under the Commerce Clause where there was
no underlying federal scheme of regulation or deregulation. In this sense, PASPA stands
alone in telling the states that they may not regulate an aspect of interstate commerce that
Congress believes should be prohibited.
5
The majority reasons that PASPA does not commandeer the states in battling
sports gambling because the states retain the choice of repealing their laws outlawing
12
of S. 474 is to prohibit sports gambling conducted by, or authorized under the law of,
any State or other governmental entity.”); id. at 4 (“Senate bill 474 serves an important
public purpose, to stop the spread of State-sponsored sports gambling . . . .”).
Moreover, contrary to the majority opinion’s suggestion, other federal statutes
relating to sports gambling do not aggregate to form the foundation of a federal
regulatory scheme that can be interpreted as preempting state regulation of sports
gambling. First, Section 1084 of Title 18 of the United States Code makes it a federal
crime to use wire communications to transmit sports bets in interstate commerce unless
the transmission is from and to a state where sports betting is legal. See 18 U.S.C. §
1084(a)-(b). Thus, under that section, state law, rather than federal law, determines
whether the specified conduct falls within the criminal statute.6 Second, another federal
law prohibits any “scheme . . . to influence . . . by bribery any sporting contest.” Id. §
224(a). But, that same section expressly indicates that it “shall not be construed as
indicating an intent on the part of Congress to occupy the field in which this section
operations to the exclusion of any State,” and further disavows any attempt to preempt
otherwise valid state laws. Id. § 224(b). A third federal statute carves out an exception to
the general federal prohibition against transporting or mailing material and broadcasting
information relating to lotteries for those conducted or authorized by states. Id. §
such activity, observing that PASPA does not “require[] that the states keep any law in
place.” (Maj. Op. at 39.) Contrary to the majority’s supposition, it certainly is open to
debate whether a state’s repeal of a ban on sports gambling would be akin to that state’s
“authorizing” gambling on sporting events, action that PASPA explicitly forecloses.
6
Accordingly, if a state repealed an existing ban on wagering on sporting events,
federal law would not be implicated.
13
1307(a)-(b). That exception, however, does not pertain to the transportation or mailing of
“equipment, tickets, or material” for sports lotteries. Id. § 1307(b), (d). Thus, while state
sports lotteries violate § 1307, that section does not provide a basis for inferring that it,
together with PAPSA, provides a federal regulatory scheme that preempts state regulation
of sports gambling by private parties.7 Further indicating federal deference to state laws
on the subject, a fourth federal statute makes it a crime to transport wagering
paraphernalia in interstate commerce but does not apply to betting materials to be used on
sporting events in states where such betting is legal. Id. § 1953(a)-(b). As a result, the
federal prohibition of state-authorized sports gambling does not emanate from a federal
regulatory scheme that expressly or implicitly preempts state regulation that would
conflict with federal policy. Instead, PASPA attempts to implement federal policy by
telling the states that they may not regulate an otherwise unregulated activity. The
Constitution affords Congress no such power. See New York, 505 U.S. at 178 (“The
Constitution . . . gives Congress the authority to regulate matters directly and to pre-empt
contrary state regulation. Where a federal interest is sufficiently strong to cause Congress
to legislate, it must do so directly . . . .”).
In addition to preempting state regulation with federal regulation, in some
circumstances, Congress may regulate states directly as part of a generally applicable
law. See, e.g., New York, 505 U.S. at 160 (collecting cases). That is what Congress did
7
PASPA only extends its prohibition to private persons to the extent persons
“sponsor, operate, advertise, or promote [sports gambling] pursuant to the law or compact
of a governmental entity.” 28 U.S.C. § 3702(2). Because the federal statute applies only
to persons who act pursuant to state law, it cannot be said to directly regulate persons.
14
with the DPPA, which the Court expressly found in Reno to be generally applicable. See
Reno, 528 U.S. at 151 (“[W]e need not address the question whether general applicability
is a constitutional requirement for federal regulation of the States, because the DPPA is
generally applicable. The DPPA regulates the universe of entities that participate as
suppliers to the market for motor vehicle information . . . .”). Yet, unlike the DPPA in
Reno, but like the act in New York, PASPA is not an example of a generally applicable
law that subjects states to the same federal regulation as private parties. See New York,
505 U.S. at 160 (“This litigation presents no occasion to apply or revisit the holdings of .
. . cases [concerning generally applicable laws], as this is not a case in which Congress
has subjected a State to the same legislation applicable to private parties.”). In addition
to its restrictions on actions by state governments relating to sports gambling, PASPA
also forbids “a person to sponsor, operate, advertise, or promote” sports gambling if done
“pursuant to the law or compact of a governmental entity.” 18 U.S.C. § 3702(2)
(emphasis added); see also supra note 2. Thus, PASPA’s reach to private parties is
predicated on a state’s authorization of sponsorship, operation, advertisement, or
promotion of sports gambling pursuant to state law.8 Accordingly, PASPA cannot be
said to “subject[] . . . States[s] to the same legislation applicable to private parties,” New
York, 505 U.S. at 160, for state law determines whether § 3702(2) reaches any particular
individual.
8
According to the majority, a state would presumably not run afoul of PASPA if it
merely refused to prohibit sports gambling. The resulting unregulated market, however,
portends grave consequences for which state officials would be held accountable, even
though it would be federal policy that prohibits the states from taking effective measures
to regulate and police this activity. In this sense, PASPA is indeed coercive.
15
Nor does Reno stand more generally for the proposition that a violation of “anti-
commandeering” federalism principles occurs only when Congress requires affirmative
activity by state governments. It is true that in upholding the DPPA, the Court noted that
it “d[id] not require the South Carolina Legislature to enact any laws or regulations, and it
d[id] not require state officials to assist in the enforcement of federal statutes regulating
private individuals.” Reno, 528 U.S. at 151. Read in context, however, that statement
does not suggest that the principles of federalism articulated in New York and Printz are
limited only to situations in which Congress compels states to enact laws or enforce
federal regulation. The two sentences preceding that statement make that clear. First, the
Court recognized that “the DPPA d[id] not require the States in their sovereign capacity
to regulate their own citizens.” Id. But here, PASPA does “require states in their
sovereign capacity to regulate their own citizens,” id., because it dictates how they must
regulate sports gambling. Pursuant to PASPA, states may not “sponsor, operate,
advertise, promote, license, or authorize” such activity, 28 U.S.C. § 3702(1). Thus, states
must govern accordingly, even if that means by refraining from providing a regulatory
scheme that governs sports gambling.
Second, the Court explained in Reno that, “[t]he DPPA regulates the States as
owners of data bases” of personal information in motor vehicle records. Reno, 528 U.S.
at 151 (emphasis added). The fact that the DPPA regulated states as “suppliers to the
market for motor vehicle information,” id., clearly indicates that the Court viewed the
DPPA as direct congressional regulation of interstate commerce, id. at 148 (recognizing
that motor vehicle information, in the context of the DPPA, is “an article of commerce”),
16
rather than a federal requirement for the states to regulate such activity, see New York,
505 U.S. at 166 (“The allocation of power contained in the Commerce Clause . . .
authorizes Congress to regulate interstate commerce directly; it does not authorize
Congress to regulate state governments’ regulation of interstate commerce.”). Although
the Court declined to find that New York and Printz governed the DPPA merely because
it would “require time and effort on the part of state employees,” it clarified that federally
mandated action by states to comply with federal regulations is not necessarily fatal to a
federal law that “‘regulate[s] state activities,’ rather than ‘seek[ing ] to control or
influence the manner in which States regulate private parties.’” Reno, 528 U.S. at 150(quoting Baker, 485 U.S. at 514-15) (second alteration in original).
The direct federal regulation of interstate commerce under the DPPA obviously
distinguishes Reno from New York and Printz, where the federal statutes at issue in those
cases required states to enact legislation and enforce federal policy, respectively. But it
also distinguishes Reno from this case. As the Court recognized, “[t]he DPPA
establishe[d] a regulatory scheme.” Reno, 528 U.S. at 144, 148, 151. As discussed
above, however, PASPA is not itself a regulatory scheme, nor does it combine with
several other scattered statutes in the criminal code to create a federal regulatory scheme.
And while Congress could have regulated sports gambling directly under the Commerce
Clause, just as it regulated motor vehicle information under the DPPA, it did not.
Instead, it chose to set federal parameters as to how states may regulate sports gambling.
As a result, any reliance on Reno to uphold PASPA is misplaced.
17
Hodel and FERC also provide no support for upholding PASPA. In Hodel, the
statute at issue permitted states to submit a state regulatory plan for federal approval if
they wished to regulate surface coal mining; if states did not seek or obtain approval, then
a federal enforcement program would take effect. Hodel, 452 U.S. at 271-72. The Court
determined that the federal statute did not “commandeer[] the legislative process of the
States” because states had a choice about whether to implement regulation that
conformed to federal standards or let the federal government bear the burden of
regulation. Id. at 288; see also Printz, 521 U.S. at 925-26 (“In Hodel . . . we concluded
that the Surface Mining Control and Reclamation Act of 1977 did not present [a Tenth
Amendment] problem . . . because it merely made compliance with federal standards a
precondition to continued state regulation in an otherwise pre-empted field.” (citation
omitted)). If PASPA provided a similar choice to states—to either implement state
regulation of sports gambling that met federal standards or allow federal regulation to
take effect—then perhaps it would pass constitutional muster. But it does not. Therefore
Hodel is inapplicable to the case at hand.
In addition, in upholding Titles I and III of PURPA in FERC, the Court focused on
the fact that those titles merely required that states “consider the suggested federal
standards” as a condition to continued state regulation. FERC, 456 U.S. at 765; see also
id. at 765-66 (“In short, because the two challenged Titles simply condition continued
state involvement in a pre-emptible area on the consideration of federal proposals, they
do not threaten the States’ separate and independent existence, and do not impair the
ability of the States to function effectively in a federal system.” (citations omitted)
18
(internal quotation marks omitted)). Here, PASPA does not provide suggested federal
standards and approaches that states must consider in their regulation of sports gambling.
Rather, PASPA strips any regulatory choice from state governments.9 Furthermore,
while the PURPA titles in FERC did “not involve the compelled exercise of Mississippi’s
sovereign powers,” id. at 769, PASPA does indeed suffer from the obverse of such a
constitutional defect: it prohibits the exercise of states’ sovereign powers. FERC is thus
distinguishable and inapposite.
Finally, as recognized by the majority, our decision in Office of the Commissioner
of Baseball v. Markell, 579 F.3d 293 (3d Cir. 2009), does not bind us to reject a challenge
to PASPA on federalism grounds. In that case, we determined that a statutory phrase
concerning the extent to which states grandfathered under PASPA could operate certain
types of sports gambling was unambiguous. Id. at 302-03. As a result of the
unambiguous language in PASPA, “we f[ou]nd unpersuasive Delaware’s argument that
its sovereign status requires that it be permitted to implement its proposed betting
scheme.” Id. at 303. That finding, however, related to our conclusion that PASPA gave
clear notice of its “‘alter[ation] [of] the usual constitutional balance’ with respect to
sports wagering,” and thus satisfied the requirement of Gregory v. Ashcroft, 501 U.S. 452(1991). See Markell, 579 F.3d at 303. Yet, here, we are not dealing with a question of
9
The majority asserts that the two “choices” presented to a state by PASPA – to
“repeal its sports wagering ban [or] to keep a complete ban on sports wagering” – “leave
much room for the states to make their own policy.” (Maj. Op. at 41.) Even if the
majority’s reading of PASPA as affording these choices is correct, I fail to discern the
“room” that is accorded the states to make their own policy on sports wagering. It seems
to me that the only choice is to allow for completely unregulated sports wagering (a result
that Congress certainly did not intend to foster), or to ban sports wagering completely.
19
which sovereign—state or federal—has the authority under either the “usual” or “altered”
constitutional balance to regulate sports gambling. Congress does have the authority to
regulate sports gambling when it does so itself. In this case, however, we are faced with
the issue of whether Congress has the authority to regulate how states regulate sports
gambling. Thus, our rejection of Delaware’s “sovereign status” argument has no bearing
on the issue before us. Furthermore, Markell provides no guidance in this case, because
there we addressed only the meaning of the statutory exception to PASPA relating to
grandfathered states found at 28 U.S.C. § 3704(a)(1). Markell, 579 F.3d. at 300-01. We
did not pass upon the issue of whether Congress may constitutionally restrict how states
can regulate under § 3702(1).
In sum, no case law supports permitting Congress to achieve federal policy
objectives by dictating how states regulate sports gambling. Instead of directly regulating
state activities or interstate commerce, PASPA “seek[s] to control or influence the
manner in which States regulate private parties,” a distinction the Supreme Court has
recognized as significant. See Reno, 528 U.S. at 150 (internal quotation marks omitted)
(“In Baker, we upheld a statute that prohibited States from issuing unregistered bonds
because the law ‘regulate[d] state activities,’ rather than ‘seek[ing] to control or influence
the manner in which States regulate private parties.’” (quoting Baker, 485 U.S. at 514-
15)); see also New York, 505 U.S at 166 (“The allocation of power contained in the
Commerce Clause . . . authorizes Congress to regulate interstate commerce directly; it
does not authorize Congress to regulate state governments’ regulation of interstate
commerce.”).
20
Moreover, no legal principle exists for finding a distinction between the federal
government compelling state governments to exercise their sovereignty to enact or
enforce laws on the one hand, and restricting state governments from exercising their
sovereignty to enact or enforce laws on the other. In both scenarios the federal
government is regulating how states regulate. If Congress identifies a problem involving
or affecting interstate commerce and wishes to provide a policy solution, it may regulate
the commercial activity itself, see New York, 505 U.S. at 166, and may even regulate state
activity that involves interstate commerce, see Reno, 528 U.S. at 150-51; Baker, 485 U.S.
at 514. In addition, Congress may provide states a choice about whether to implement
state regulations consistent with federal standards or let federal regulation preempt state
law, see Hodel, 452 U.S. at 288, and may require states to “consider” federal standards or
approaches to regulation in deciding how to regulate in a preemptible area, see FERC,
456 U.S. at 765-66. Furthermore, Congress may “encourage a State to regulate in a
particular way,” New York, 505 U.S. at 166,—even in areas outside the scope of
Congress’s Article I, § 8 powers—by “attach[ing] conditions on the receipt of federal
funds,” South Dakota v. Dole, 483 U.S. 203, 206-07 (1987). But, what Congress may not
do is “regulate state governments’ regulation.” See New York, 505 U.S. at 166. Whether
commanding the use of state machinery to regulate or commanding the nonuse of state
machinery to regulate, the Supreme Court “has been explicit” that “the Constitution has
never been understood to confer upon Congress the ability to require the States to govern
according to Congress’ instructions.” Id. at 162. Because that is exactly what PASPA
does here, I conclude it violates the principles of federalism articulated in New York and
21
Printz. Therefore, I would reverse the District Court’s order granting summary judgment
for Plaintiffs and vacate the permanent injunction.
22