Murphy v. National Collegiate Athletic Assn. , 200 L. Ed. 2d 854 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MURPHY, GOVERNOR OF NEW JERSEY, ET AL. v.
NATIONAL COLLEGIATE ATHLETIC ASSN. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 16–476. Argued December 4, 2017—Decided May 14, 2018*
The Professional and Amateur Sports Protection Act (PASPA) makes it
unlawful for a State or its subdivisions “to sponsor, operate, adver-
tise, promote, license, or authorize by law or compact . . . a lottery,
sweepstakes, or other betting, gambling, or wagering scheme based
. . . on” competitive sporting events, 28 U.S. C. §3702(1), and for “a
person to sponsor, operate, advertise, or promote” those same gam-
bling schemes if done “pursuant to the law or compact of a govern-
mental entity,” §3702(2). But PASPA does not make sports gambling
itself a federal crime. Instead, it allows the Attorney General, as well
as professional and amateur sports organizations, to bring civil ac-
tions to enjoin violations. §3703. “Grandfather” provisions allow ex-
isting forms of sports gambling to continue in four States,
§3704(a)(1)–(2), and another provision would have permitted New
Jersey to set up a sports gambling scheme in Atlantic City within a
year of PASPA’s enactment, §3704(a)(3).
New Jersey did not take advantage of that option but has since had
a change of heart. After voters approved an amendment to the State
Constitution giving the legislature the authority to legalize sports
gambling schemes in Atlantic City and at horseracing tracks, the leg-
islature enacted a 2012 law doing just that. The NCAA and three
major professional sports leagues brought an action in federal court
against New Jersey’s Governor and other state officials (hereinafter
New Jersey), seeking to enjoin the law on the ground that it violates
——————
* Together with No. 16–477, New Jersey Thoroughbred Horsemen’s
Assn., Inc. v. National Collegiate Athletic Assn. et al., also on certiorari
to the same court.
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Syllabus
PASPA. New Jersey countered that PASPA violates the Constitu-
tion’s “anticommandeering” principle by preventing the State from
modifying or repealing its laws prohibiting sports gambling. The
District Court found no anticommandeering violation, the Third Cir-
cuit affirmed, and this Court denied review.
In 2014, the New Jersey Legislature enacted the law at issue in
these cases. Instead of affirmatively authorizing sports gambling
schemes, this law repeals state-law provisions that prohibited such
schemes, insofar as they concerned wagering on sporting events by
persons 21 years of age or older; at a horseracing track or a casino or
gambling house in Atlantic City; and only as to wagers on sporting
events not involving a New Jersey college team or a collegiate event
taking place in the State. Plaintiffs in the earlier suit, respondents
here, filed a new action in federal court. They won in the District
Court, and the Third Circuit affirmed, holding that the 2014 law, no
less than the 2012 one, violates PASPA. The court further held that
the prohibition does not “commandeer” the States in violation of the
Constitution.
Held:
1. When a State completely or partially repeals old laws banning
sports gambling schemes, it “authorize[s]” those schemes under
PASPA. Pp. 9–14.
(a) Pointing out that one accepted meaning of “authorize” is
“permit,” petitioners contend that any state law that has the effect of
permitting sports gambling, including a law totally or partially re-
pealing a prior prohibition, amounts to authorization. Respondents
maintain that “authorize” requires affirmative action, and that the
2014 law affirmatively acts by empowering a defined group of entities
and endowing them with the authority to conduct sports gambling
operations. They do not take the position that PASPA bans all modi-
fications of laws prohibiting sports gambling schemes, but just how
far they think a modification could go is not clear. Similarly, the
United States, as amicus, claims that the State’s 2014 law qualifies
as an authorization. PASPA, it contends, neither prohibits a State
from enacting a complete repeal nor outlaws all partial repeals. But
the United States also does not set out any clear rule for distinguish-
ing between partial repeals that constitute the “authorization” of
sports gambling and those that are permissible. Pp. 10–11.
(b) Taking into account the fact that all forms of sports gambling
were illegal in the great majority of States at the time of PASPA’s
enactment, the repeal of a state law banning sports gambling not
only “permits” sports gambling but also gives those now free to conduct
a sports betting operation the “right or authority to act.” The inter-
pretation adopted by the Third Circuit and advocated by respondents
Cite as: 584 U. S. ____ (2018) 3
Syllabus
and the United States not only ignores the situation that Congress
faced when it enacted PASPA but also leads to results that Congress
is most unlikely to have wanted. Pp. 11–13.
(c) Respondents and the United States cannot invoke the canon
of interpretation that a statute should not be held to be unconstitu-
tional if there is any reasonable interpretation that can save it. Even
if the law could be interpreted as respondents and the United States
suggest, it would still violate the anticommandeering principle.
Pp. 13–14.
2. PASPA’s provision prohibiting state authorization of sports
gambling schemes violates the anticommandeering rule. Pp. 14–24.
(a) As the Tenth Amendment confirms, all legislative power not
conferred on Congress by the Constitution is reserved for the States.
Absent from the list of conferred powers is the power to issue direct
orders to the governments of the States. The anticommandeering
doctrine that emerged in New York v. United States, 505 U.S. 144,
and Printz v. United States, 521 U.S. 898, simply represents the
recognition of this limitation. Thus, “Congress may not simply ‘com-
mandeer the legislative process of the States by directly compelling
them to enact and enforce a federal regulatory program.’ ” New York,
supra, at 161. Adherence to the anticommandeering principle is im-
portant for several reasons, including, as significant here, that the
rule serves as “one of the Constitution’s structural safeguards of lib-
erty,” Printz, supra, at 921, that the rule promotes political accounta-
bility, and that the rule prevents Congress from shifting the costs of
regulation to the States. Pp. 14–18.
(b) PASPA’s anti-authorization provision unequivocally dictates
what a state legislature may and may not do. The distinction be-
tween compelling a State to enact legislation and prohibiting a State
from enacting new laws is an empty one. The basic principle—that
Congress cannot issue direct orders to state legislatures—applies in
either event. Pp. 18–19.
(c) Contrary to the claim of respondents and the United States,
this Court’s precedents do not show that PASPA’s anti-authorization
provision is constitutional. South Carolina v. Baker, 485 U.S. 505;
Reno v. Condon, 528 U.S. 141; Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U.S. 264; FERC v. Mississippi, 456
U.S. 742, distinguished. Pp. 19–21.
(d) Nor does the anti-authorization provision constitute a valid
preemption provision. To preempt state law, it must satisfy two re-
quirements. It must represent the exercise of a power conferred on
Congress by the Constitution. And, since the Constitution “confers
upon Congress the power to regulate individuals, not States,” New
York, supra, at 177, it must be best read as one that regulates private
4 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Syllabus
actors. There is no way that the PASPA anti-authorization provision
can be understood as a regulation of private actors. It does not confer
any federal rights on private actors interested in conducting sports
gambling operations or impose any federal restrictions on private ac-
tors. Pp. 21–24.
3. PASPA’s provision prohibiting state “licens[ing]” of sports
gambling schemes also violates the anticommandeering rule. It is-
sues a direct order to the state legislature and suffers from the same
defect as the prohibition of state authorization. Thus, this Court
need not decide whether New Jersey’s 2014 law violates PASPA’s anti-
licensing provision. Pp. 24–25.
4. No provision of PASPA is severable from the provisions direct-
ly at issue. Pp. 26–30.
(a) Section 3702(1)’s provisions prohibiting States from “op-
erat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes
cannot be severed. Striking the state authorization and licensing
provisions while leaving the state operation provision standing would
result in a scheme sharply different from what Congress contemplat-
ed when PASPA was enacted. For example, had Congress known
that States would be free to authorize sports gambling in privately
owned casinos, it is unlikely that it would have wanted to prevent
States from operating sports lotteries. Nor is it likely that Congress
would have wanted to prohibit such an ill-defined category of state
conduct as sponsorship or promotion. Pp. 26–27.
(b) Congress would not want to sever the PASPA provisions
that prohibit a private actor from “sponsor[ing],” “operat[ing],” or
“promot[ing]” sports gambling schemes “pursuant to” state law.
§3702(2). PASPA’s enforcement scheme makes clear that §3702(1)
and §3702(2) were meant to operate together. That scheme—suited
for challenging state authorization or licensing or a small number of
private operations—would break down if a State broadly decriminal-
ized sports gambling. Pp. 27–29.
(c) PASPA’s provisions prohibiting the “advertis[ing]” of sports
gambling are also not severable. See §§3702(1)–(2). If they were al-
lowed to stand, federal law would forbid the advertising of an activity
that is legal under both federal and state law—something that Con-
gress has rarely done. Pp. 29–30.
832 F.3d 389, reversed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, THOMAS, KAGAN, and GORSUCH, JJ., joined, and in which
BREYER, J., joined as to all but Part VI–B. THOMAS, J., filed a concur-
ring opinion. BREYER, J., filed an opinion concurring in part and dis-
senting in part. GINSBURG, J., filed a dissenting opinion, in which SO-
TOMAYOR, J., joined, and in which BREYER, J., joined in part.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–476 and 16–477
_________________
PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 14, 2018]
JUSTICE ALITO delivered the opinion of the Court.
The State of New Jersey wants to legalize sports gam­
bling at casinos and horseracing tracks, but a federal law,
the Professional and Amateur Sports Protection Act,
generally makes it unlawful for a State to “authorize”
sports gambling schemes. 28 U.S. C. §3702(1). We must
decide whether this provision is compatible with the sys­
tem of “dual sovereignty” embodied in the Constitution.
I
A
Americans have never been of one mind about gambling,
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
and attitudes have swung back and forth. By the end of
the 19th century, gambling was largely banned through­
out the country,1 but beginning in the 1920s and 1930s,
laws prohibiting gambling were gradually loosened.
New Jersey’s experience is illustrative. In 1897, New
Jersey adopted a constitutional amendment that barred
all gambling in the State.2 But during the Depression, the
State permitted parimutuel betting on horse races as a
way of increasing state revenue,3 and in 1953, churches
and other nonprofit organizations were allowed to host
bingo games.4 In 1970, New Jersey became the third
State to run a state lottery,5 and within five years, 10
other States followed suit.6
By the 1960s, Atlantic City, “once the most fashionable
resort of the Atlantic Coast,” had fallen on hard times,7
and casino gambling came to be seen as a way to revitalize
the city.8 In 1974, a referendum on statewide legalization
failed,9 but two years later, voters approved a narrower
measure allowing casino gambling in Atlantic City alone.10
At that time, Nevada was the only other State with legal
——————
1 See Nat. Gambling Impact Study Comm’n, Final Report, p. 2–1
(1999) (Final Report); S. Durham & K. Hashimoto, The History of
Gambling in America 34–35 (2010).
2 See Atlantic City Racing Assn. v. Attorney General, 98 N. J. 535,
539–541, 489 A.2d 165, 167–168 (1985).
3 See Note, The Casino Act: Gambling’s Past and the Casino Act’s
Future, 10 Rutgers-Camden L. J. 279, 287 (1979) (The Casino Act).
4 Id., at 288; see also N. J. Const., Art. 4, §7, ¶2(A); Bingo Licensing
Law, N. J. Stat. Ann. §5:8–24 et seq. ( West 2012).
5 See State Lottery Law, N. J. Stat. Ann. §5:9–1 et seq.; The Casino
Act, at 288; N. J. Const., Art. 4, §7, ¶2(C); Final Report, at 2–1.
6 Id., at 2–1.
7 T. White, The Making of the President 1964, p. 275 (1965).
8 See D. Clary, Gangsters to Governors 152–153 (2017) (Clary).
9 See The Casino Act, at 289.
10 See ibid.; N. J. Const., Art. 4, §7, ¶2(D).
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
casinos,11 and thus for a while the Atlantic City casinos
had an east coast monopoly. “With 60 million people
living within a one-tank car trip away,” Atlantic City
became “the most popular tourist destination in the United
States.”12 But that favorable situation eventually came
to an end.
With the enactment of the Indian Gaming Regulatory
Act in 1988, 25 U.S. C. §2701 et seq., casinos opened on
Indian land throughout the country. Some were located
within driving distance of Atlantic City,13 and nearby
States (and many others) legalized casino gambling.14 But
Nevada remained the only state venue for legal sports
gambling in casinos, and sports gambling is immensely
popular.15
Sports gambling, however, has long had strong opposi­
tion. Opponents argue that it is particularly addictive and
especially attractive to young people with a strong interest
in sports,16 and in the past gamblers corrupted and seri­
ously damaged the reputation of professional and amateur
sports.17 Apprehensive about the potential effects of
——————
11 Clary 146.
12 Id., at 146, 158.
13 Id., at 208–210.
14 Casinos now operate in New York, Pennsylvania, Delaware, and
Maryland. See American Gaming Assn., 2016 State of the States, p. 8,
online at https://www.americangaming.org/sites/default/files/2016%20
State%20of%20the%20States_FINAL.pdf (all Internet materials as last
visited May 4, 2018).
15 See, e.g., Brief for American Gaming Assn. as Amicus Curiae 1–2.
16 See, e.g., Final Report, at 3–10; B. Bradley, The Professional and
Amateur Sports Protection Act—Policy Concerns Behind Senate Bill
474, 2 Seton Hall J. Sport L. 5, 7 (1992); Brief for Stop Predatory
Gambling et al. as Amici Curiae 22–23.
17 For example, in 1919, professional gamblers are said to have paid
members of the Chicago White Sox to throw the World Series, an
episode that was thought to have threatened baseball’s status as the
Nation’s pastime. See E. Asinof, Eight Men Out: The Black Sox and
4 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
sports gambling, professional sports leagues and the
National Collegiate Athletic Association (NCAA) long
opposed legalization.18
B
By the 1990s, there were signs that the trend that had
brought about the legalization of many other forms of
gambling might extend to sports gambling,19 and this
sparked federal efforts to stem the tide. Opponents of
sports gambling turned to the legislation now before us,
the Professional and Amateur Sports Protection Act
(PASPA). 28 U.S. C. §3701 et seq. PASPA’s proponents
argued that it would protect young people, and one of the
bill’s sponsors, Senator Bill Bradley of New Jersey, a
former college and professional basketball star, stressed
that the law was needed to safeguard the integrity of
sports.20 The Department of Justice opposed the bill,21 but
it was passed and signed into law.
PASPA’s most important provision, part of which is
directly at issue in these cases, makes it “unlawful” for a
State or any of its subdivisions22 “to sponsor, operate,
——————
the 1919 World Series 5, 198–199 (1963). And in the early 1950s, the
Nation was shocked when several college basketball players were
convicted for shaving points. S. Cohen, The Game They Played 183–
238 (1977). This scandal is said to have nearly killed college basket­
ball. See generally C. Rosen, Scandals of ’51: How the Gamblers
Almost Killed College Basketball (1978).
18 See Professional and Amateur Sports Protection, S. Rep. No. 102–
248, p. 8 (1991); Hearing before the Subcommittee on Patents, Copy­
rights and Trademarks of the Senate Committee on the Judiciary, 102d
Cong., 1st Sess., 21, 39, 46–47, 59–60, 227 (1991) (S. Hrg. 102–499)
(statements by representatives of major sports leagues opposing sports
gambling).
19 S. Rep. No. 102–248, at 5.
20 S. Hrg. 102–499, at 10–14.
21 App. to Pet. for Cert. in No. 16–476, p. 225a.
22 The statute applies to any “governmental entity,” which is defined
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
advertise, promote, license, or authorize by law or compact
. . . a lottery, sweepstakes, or other betting, gambling, or
wagering scheme based . . . on” competitive sporting
events. §3702(1). In parallel, §3702(2) makes it “unlaw­
ful” for “a person to sponsor, operate, advertise, or pro­
mote” those same gambling schemes23—but only if this is
done “pursuant to the law or compact of a governmental
entity.” PASPA does not make sports gambling a federal
crime (and thus was not anticipated to impose a signifi­
cant law enforcement burden on the Federal Govern­
ment).24 Instead, PASPA allows the Attorney General, as
well as professional and amateur sports organizations, to
bring civil actions to enjoin violations. §3703.
At the time of PASPA’s adoption, a few jurisdictions
allowed some form of sports gambling. In Nevada, sports
gambling was legal in casinos,25 and three States hosted
sports lotteries or allowed sports pools.26 PASPA contains
“grandfather” provisions allowing these activities to con­
tinue. §3704(a)(1)–(2). Another provision gave New Jer­
sey the option of legalizing sports gambling in Atlantic
City—provided that it did so within one year of the law’s
——————
as “a State, a political subdivision of a State, or an entity or organiza­
tion . . . that has governmental authority within the territorial bounda­
ries of the United States.” 28 U.S. C. §3701(2).
23 PASPA does not define the term “scheme.” The United States has
not offered a definition of the term but suggests that it encompasses
only those forms of gambling having some unspecified degree of organi­
zation or structure. See Brief for United States as Amicus Curiae 28–
29. For convenience, we will use the term “sports gambling” to refer to
whatever forms of sports gambling fall within PASPA’s reach.
24 The Congressional Budget Office estimated that PASPA would not
require the appropriation of any federal funds. S. Rep. No. 102–248, at
10.
25 Ibid.
26 Ibid.; 138 Cong. Rec. 12973.
6 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
effective date. §3704(a)(3).27
New Jersey did not take advantage of this special op­
tion, but by 2011, with Atlantic City facing stiff competi­
tion, the State had a change of heart. New Jersey voters
approved an amendment to the State Constitution making
it lawful for the legislature to authorize sports gambling,
Art. IV, §7, ¶2(D), (F), and in 2012 the legislature enacted
a law doing just that, 2011 N. J. Laws p. 1723 (2012 Act).
The 2012 Act quickly came under attack. The major
professional sports leagues and the NCAA brought an
action in federal court against the New Jersey Governor
and other state officials (hereinafter New Jersey), seeking
to enjoin the new law on the ground that it violated
PASPA. In response, the State argued, among other
things, that PASPA unconstitutionally infringed the
State’s sovereign authority to end its sports gambling ban.
See National Collegiate Athletic Assn. v. Christie, 926
F. Supp. 2d 551, 561 (NJ 2013).
In making this argument, the State relied primarily on
two cases, New York v. United States, 505 U.S. 144
(1992), and Printz v. United States, 521 U.S. 898 (1997),
in which we struck down federal laws based on what has
been dubbed the “anticommandeering” principle. In New
York, we held that a federal law unconstitutionally or­
dered the State to regulate in accordance with federal
standards, and in Printz, we found that another federal
statute unconstitutionally compelled state officers to
enforce federal law.
Relying on these cases, New Jersey argued that PASPA
is similarly flawed because it regulates a State’s exercise
——————
27 Although
this provision did not specifically mention New Jersey or
Atlantic City, its requirements—permitting legalization only “in a
municipality” with an uninterrupted 10-year history of legal casino
gaming—did not fit anyplace else.
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
of its lawmaking power by prohibiting it from modifying or
repealing its laws prohibiting sports gambling. See Na-
tional Collegiate Athletic Assn. v. Christie, 926
F. Supp. 2d, at 561–562. The plaintiffs countered that
PASPA is critically different from the commandeering
cases because it does not command the States to take any
affirmative act. Id., at 562. Without an affirmative fed­
eral command to do something, the plaintiffs insisted, there
can be no claim of commandeering. Ibid.
The District Court found no anticommandeering viola­
tion, id., at 569–573, and a divided panel of the Third
Circuit affirmed, National Collegiate Athletic Assn. v.
Christie, 730 F.3d 208 (2013) (Christie I ). The panel
thought it significant that PASPA does not impose any
affirmative command. Id., at 231. In the words of the
panel, “PASPA does not require or coerce the states to lift
a finger.” Ibid. (emphasis deleted). The panel recognized
that an affirmative command (for example, “Do not re­
peal”) can often be phrased as a prohibition (“Repeal is
prohibited”), but the panel did not interpret PASPA as
prohibiting the repeal of laws outlawing sports gambling.
Id., at 232. A repeal, it thought, would not amount to
“authoriz[ation]” and thus would fall outside the scope of
§3702(1). “[T]he lack of an affirmative prohibition of an
activity,” the panel wrote, “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.” Id., at 232 (em­
phasis deleted).
New Jersey filed a petition for a writ of certiorari, rais­
ing the anticommandeering issue. Opposing certiorari,
the United States told this Court that PASPA does not
require New Jersey “to leave in place the state-law prohi­
bitions against sports gambling that it had chosen to
adopt prior to PASPA’s enactment. To the contrary, New
Jersey is free to repeal those prohibitions in whole or in
8 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
part.” Brief for United States in Opposition in Christie v.
National Collegiate Athletic Assn., O. T. 2013, No. 13–967
etc., p. 11. See also Brief for Respondents in Opposition in
No. 13–967 etc., p. 23 (“Nothing in that unambiguous
language compels states to prohibit or maintain any exist­
ing prohibition on sports gambling”). We denied review.
Christie v. National Collegiate Athletic Assn., 573 U. S. ___
(2014).
Picking up on the suggestion that a partial repeal would
be allowed, the New Jersey Legislature enacted the law
now before us. 2014 N. J. Laws p. 602 (2014 Act). The
2014 Act declares that it is not to be interpreted as caus­
ing the State to authorize, license, sponsor, operate, adver­
tise, or promote sports gambling. Ibid. Instead, it is
framed as a repealer. Specifically, it repeals the provi­
sions of state law prohibiting sports gambling insofar as
they concerned the “placement and acceptance of wagers”
on sporting events by persons 21 years of age or older at a
horseracing track or a casino or gambling house in Atlan­
tic City. Ibid. The new law also specified that the repeal
was effective only as to wagers on sporting events not
involving a New Jersey college team or a collegiate event
taking place in the State. Ibid.
Predictably, the same plaintiffs promptly commenced a
new action in federal court. They won in the District
Court, National Collegiate Athletic Assn. v. Christie, 61
F. Supp. 3d 488 (NJ 2014), and the case was eventually
heard by the Third Circuit sitting en banc. The en banc
court affirmed, finding that the new law, no less than the
old one, violated PASPA by “author[izing]” sports gam­
bling. National Collegiate Athletic Assn. v. Governor of
N. J., 832 F.3d 389 (2016) (case below). The court was
unmoved by the New Jersey Legislature’s “artful[]” at­
tempt to frame the 2014 Act as a repealer. Id., at 397.
Looking at what the law “actually does,” the court con­
cluded that it constitutes an authorization because it
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
“selectively remove[s] a prohibition on sports wagering in
a manner that permissively channels wagering activity to
particular locations or operators.” Id., at 397, 401. The
court disavowed some of the reasoning in the Christie I
opinion, finding its discussion of “the relationship between
a ‘repeal’ and an ‘authorization’ to have been too facile.”
832 F.3d, at 401. But the court declined to say whether a
repeal that was more complete than the 2014 Act would
still amount to an authorization. The court observed that
a partial repeal that allowed only “de minimis wagers
between friends and family would not have nearly the type
of authorizing effect” that it found in the 2014 Act, and it
added: “We need not . . . articulate a line whereby a partial
repeal of a sports wagering ban amounts to an authoriza­
tion under PASPA, if indeed such a line could be drawn.”
Id., at 402 (emphasis added).
Having found that the 2014 Act violates PASPA’s prohi­
bition of state authorization of sports gambling schemes,
the court went on to hold that this prohibition does not
contravene the anticommandeering principle because it
“does not command states to take affirmative actions.”
Id., at 401.
We granted review to decide the important constitutional
question presented by these cases, sub nom. Christie v.
National Collegiate Athletic Assn., 582 U. S. ___ (2017).
II
Before considering the constitutionality of the PASPA
provision prohibiting States from “author[izing]” sports
gambling, we first examine its meaning. The parties
advance dueling interpretations, and this dispute has an
important bearing on the constitutional issue that we
must decide. Neither respondents nor the United States,
appearing as an amicus in support of respondents, con­
tends that the provision at issue would be constitutional if
petitioners’ interpretation is correct. Indeed, the United
10 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
States expressly concedes that the provision is unconstitu­
tional if it means what petitioners claim. Brief for United
States 8, 19.
A
Petitioners argue that the anti-authorization provision
requires States to maintain their existing laws against
sports gambling without alteration. One of the accepted
meanings of the term “authorize,” they point out, is “per­
mit.” Brief for Petitioners in No. 16–476, p. 42 (citing
Black’s Law Dictionary 133 (6th ed. 1990); Webster’s
Third New International Dictionary 146 (1992)). They
therefore contend that any state law that has the effect of
permitting sports gambling, including a law totally or
partially repealing a prior prohibition, amounts to an
authorization. Brief for Petitioners in No. 16–476, at 42.
Respondents interpret the provision more narrowly.
They claim that the primary definition of “authorize”
requires affirmative action. Brief for Respondents 39. To
authorize, they maintain, means “ ‘[t]o empower; to give a
right or authority to act; to endow with authority.’ ” Ibid.
(quoting Black’s Law Dictionary, at 133). And this, they
say, is precisely what the 2014 Act does: It empowers a
defined group of entities, and it endows them with the
authority to conduct sports gambling operations.
Respondents do not take the position that PASPA bans
all modifications of old laws against sports gambling, Brief
for Respondents 20, but just how far they think a modifi­
cation could go is not clear. They write that a State “can
also repeal or enhance [laws prohibiting sports gambling]
without running afoul of PASPA” but that it “cannot ‘par­
tially repeal’ a general prohibition for only one or two
preferred providers, or only as to sports-gambling schemes
conducted by the state.” Ibid. Later in their brief, they
elaborate on this point:
“If, for example, a state had an existing felony prohi­
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
bition on all lotteries, it could maintain the law, it
could repeal the law, it could downgrade the crime to
a misdemeanor or increase the penalty . . . . But if the
state modified its law, whether through a new author­
ization or through an amendment partially repealing
the existing prohibition, to authorize the state to con­
duct a sports lottery, that modified law would be
preempted.” Id., at 31.
The United States makes a similar argument. PASPA,
it contends, does not prohibit a State from enacting a
complete repeal because “one would not ordinarily say
that private conduct is ‘authorized by law’ simply because
the government has not prohibited it.” Brief for United
States 17. But the United States claims that “[t]he 2014
Act’s selective and conditional permission to engage in
conduct that is generally prohibited certainly qualifies” as
an authorization. Ibid. The United States does not argue
that PASPA outlaws all partial repeals, but it does not set
out any clear rule for distinguishing between partial re­
peals that constitute the “authorization” of sports gam­
bling and those that are permissible. The most that it is
willing to say is that a State could “eliminat[e] prohibi­
tions on sports gambling involving wagers by adults or
wagers below a certain dollar threshold.” Id., at 29.
B
In our view, petitioners’ interpretation is correct: When
a State completely or partially repeals old laws banning
sports gambling, it “authorize[s]” that activity. This is
clear when the state-law landscape at the time of PASPA’s
enactment is taken into account. At that time, all forms of
sports gambling were illegal in the great majority of
States, and in that context, the competing definitions
offered by the parties lead to the same conclusion. The
repeal of a state law banning sports gambling not only
“permits” sports gambling (petitioners’ favored definition);
12 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
it also gives those now free to conduct a sports betting
operation the “right or authority to act”; it “empowers”
them (respondents’ and the United States’s definition).
The concept of state “authorization” makes sense only
against a backdrop of prohibition or regulation. A State is
not regarded as authorizing everything that it does not
prohibit or regulate. No one would use the term in that
way. For example, no one would say that a State “author­
izes” its residents to brush their teeth or eat apples or sing
in the shower. We commonly speak of state authoriza-
tion only if the activity in question would otherwise be
restricted.28
The United States counters that, even if the term “au­
thorize,” standing alone, is interpreted as petitioners
claim, PASPA contains additional language that precludes
that reading. The provision at issue refers to “author­
iz[ation] by law,” §3702(1) (emphasis added), and the
parallel provision governing private conduct, §3702(2),
applies to conduct done “pursuant to the law . . . of a gov­
ernmental entity.” The United States maintains that one
“would not naturally describe a person conducting a
sports-gambling operation that is merely left unregulated
as acting ‘pursuant to’ state law.” Brief for United States
18. But one might well say exactly that if the person
previously was prohibited from engaging in the activity.
(“Now that the State has legalized the sale of marijuana,
Joe is able to sell the drug pursuant to state law.”)
The United States also claims to find support for its
interpretation in the fact that the authorization ban ap-
——————
28 See, e.g., A. McCullum, Vermont’s legal recreational marijuana law:
What you should know, USA Today Network (Jan. 23, 2018), online at
https://www.usatoday.com/story/news/nation-now/ 2018/ 01 /23 / vermont­
legal-marijuana-law-what-know/1056869001/ (“Vermont . . . bec[ame]
the first [State] in the country to authorize the recreational use of
[marijuana] by an act of a state legislature.” (emphasis added)).
Cite as: 584 U. S. ____ (2018) 13
Opinion of the Court
plies to all “governmental entities.” It is implausible, the
United States submits, to think that Congress “commanded
every county, district, and municipality in the Nation to
prohibit sports betting.” Ibid. But in making this argu­
ment, the United States again ignores the legal landscape
at the time of PASPA’s enactment. At that time, sports
gambling was generally prohibited by state law, and
therefore a State’s political subdivisions were powerless to
legalize the activity. But what if a State enacted a law
enabling, but not requiring, one or more of its subdivisions
to decide whether to authorize sports gambling? Such
a state law would not itself authorize sports gambling.
The ban on legalization at the local level addresses this
problem.
The interpretation adopted by the Third Circuit and
advocated by respondents and the United States not only
ignores the situation that Congress faced when it enacted
PASPA but also leads to results that Congress is most
unlikely to have wanted. This is illustrated by the im­
plausible conclusions that all of those favoring alternative
interpretations have been forced to reach about the extent
to which the provision permits the repeal of laws banning
sports gambling.
The Third Circuit could not say which, if any, partial
repeals are allowed. 832 F.3d, at 402. Respondents and
the United States tell us that the PASPA ban on state
authorization allows complete repeals, but beyond that
they identify no clear line. It is improbable that Congress
meant to enact such a nebulous regime.
C
The respondents and United States argue that even if
there is some doubt about the correctness of their inter­
pretation of the anti-authorization provision, that inter­
pretation should be adopted in order to avoid any anti-
commandeering problem that would arise if the provision
14 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
were construed to require States to maintain their laws
prohibiting sports gambling. Brief for Respondents 38;
Brief for United States 19. They invoke the canon of
interpretation that a statute should not be held to be
unconstitutional if there is any reasonable interpretation
that can save it. See Jennings v. Rodriguez, 583 U. S. ___,
___ (2018) (slip op., at 12). The plausibility of the alterna­
tive interpretations is debatable, but even if the law could
be interpreted as respondents and the United States
suggest, it would still violate the anticommandeering
principle, as we now explain.
III
A
The anticommandeering doctrine may sound arcane, but
it is simply the expression of a fundamental structural
decision incorporated into the Constitution, i.e., the deci­
sion to withhold from Congress the power to issue orders
directly to the States. When the original States declared
their independence, they claimed the powers inherent in
sovereignty—in the words of the Declaration of Independ­
ence, the authority “to do all . . . Acts and Things which
Independent States may of right do.” ¶32. The Constitu­
tion limited but did not abolish the sovereign powers of the
States, which retained “a residuary and inviolable sover­
eignty.” The Federalist No. 39, p. 245 (C. Rossiter ed.
1961). Thus, both the Federal Government and the States
wield sovereign powers, and that is why our system of
government is said to be one of “dual sovereignty.” Greg-
ory v. Ashcroft, 501 U.S. 452, 457 (1991).
The Constitution limits state sovereignty in several
ways. It directly prohibits the States from exercising some
attributes of sovereignty. See, e.g., Art. I, §10. Some
grants of power to the Federal Government have been held
to impose implicit restrictions on the States. See, e.g.,
Department of Revenue of Ky. v. Davis, 553 U.S. 328
 Cite as: 584 U. S. ____ (2018) 15
Opinion of the Court
(2008); American Ins. Assn. v. Garamendi, 539 U.S. 396
(2003). And the Constitution indirectly restricts the
States by granting certain legislative powers to Congress,
see Art. I, §8, while providing in the Supremacy Clause
that federal law is the “supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding,” Art. VI, cl. 2. This means that
when federal and state law conflict, federal law prevails
and state law is preempted.
The legislative powers granted to Congress are sizable,
but they are not unlimited. The Constitution confers on
Congress not plenary legislative power but only certain
enumerated powers. Therefore, all other legislative power
is reserved for the States, as the Tenth Amendment con­
firms. And conspicuously absent from the list of powers
given to Congress is the power to issue direct orders to the
governments of the States. The anticommandeering doc­
trine simply represents the recognition of this limit on
congressional authority.
Although the anticommandeering principle is simple
and basic, it did not emerge in our cases until relatively
recently, when Congress attempted in a few isolated in­
stances to extend its authority in unprecedented ways.
The pioneering case was New York v. United States, 505
U.S. 144 (1992), which concerned a federal law that re­
quired a State, under certain circumstances, either to
“take title” to low-level radioactive waste or to “regulat[e]
according to the instructions of Congress.” Id., at 175. In
enacting this provision, Congress issued orders to either
the legislative or executive branch of state government
(depending on the branch authorized by state law to take
the actions demanded). Either way, the Court held, the
provision was unconstitutional because “the Constitution
does not empower Congress to subject state governments
to this type of instruction.” Id., at 176.
Justice O’Connor’s opinion for the Court traced this rule
16 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
to the basic structure of government established under the
Constitution. The Constitution, she noted, “confers upon
Congress the power to regulate individuals, not States.”
Id., at 166. In this respect, the Constitution represented a
sharp break from the Articles of Confederation. “Under
the Articles of Confederation, Congress lacked the author­
ity in most respects to govern the people directly.” Id., at
163. Instead, Congress was limited to acting “ ‘only upon
the States.’ ” Id., at 162 (quoting Lane County v. Oregon, 7
Wall. 71, 76 (1869)). Alexander Hamilton, among others,
saw this as “ ‘[t]he great and radical vice in . . . the existing
Confederation.’ ” 505 U.S., at 163 (quoting The Federalist
No. 15, at 108). The Constitutional Convention considered
plans that would have preserved this basic structure, but
it rejected them in favor of a plan under which “Congress
would exercise its legislative authority directly over indi­
viduals rather than over States.” 505 U.S., at 165.
As to what this structure means with regard to Con­
gress’s authority to control state legislatures, New York
was clear and emphatic. The opinion recalled that “no
Member of the Court ha[d] ever suggested” that even “a
particularly strong federal interest” “would enable Con­
gress to command a state government to enact state regu­
lation.” Id., at 178 (emphasis in original). “We have
always understood 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. “Congress may not simply ‘commandee[r] the legisla­
tive processes of the States by directly compelling them to
enact and enforce a federal regulatory program.’ ” Id., at
161 (quoting Hodel v. Virginia Surface Mining & Recla-
mation Assn., Inc., 452 U.S. 264, 288 (1981)). “Where a
federal interest is sufficiently strong to cause Congress to
legislate, it must do so directly; it may not conscript state
governments as its agents.” 505 U.S., at 178.
Cite as: 584 U. S. ____ (2018) 17
Opinion of the Court
Five years after New York, the Court applied the same
principles to a federal statute requiring state and local law
enforcement officers to perform background checks and
related tasks in connection with applications for handgun
licenses. Printz, 521 U.S. 898. Holding this provision
unconstitutional, the Court put the point succinctly: “The
Federal Government” may not “command the States’
officers, or those of their political subdivisions, to adminis­
ter or enforce a federal regulatory program.” Id., at 935.
This rule applies, Printz held, not only to state officers
with policymaking responsibility but also to those as­
signed more mundane tasks. Id., at 929–930.
B
Our opinions in New York and Printz explained why
adherence to the anticommandeering principle is im­
portant. Without attempting a complete survey, we men­
tion several reasons that are significant here.
First, the rule serves as “one of the Constitution’s struc­
tural protections of liberty.” Printz, supra, at 921. “The
Constitution does not protect the sovereignty of States for
the benefit of the States or state governments as abstract
political entities.” New York, supra, at 181. “To the con­
trary, the Constitution divides authority between federal
and state governments for the protection of individuals.”
Ibid. “ ‘[A] healthy balance of power between the States
and the Federal Government [reduces] the risk of tyranny
and abuse from either front.’ ” Id., at 181–182 (quoting
Gregory, 501 U.S., at 458).
Second, the anticommandeering rule promotes political
accountability. When Congress itself regulates, the re­
sponsibility for the benefits and burdens of the regulation
is apparent. Voters who like or dislike the effects of the
regulation know who to credit or blame. By contrast, if a
State imposes regulations only because it has been com­
manded to do so by Congress, responsibility is blurred.
18 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
See New York, supra, at 168–169; Printz, supra, at 929–
930.
Third, the anticommandeering principle prevents Con­
gress from shifting the costs of regulation to the States. If
Congress enacts a law and requires enforcement by the
Executive Branch, it must appropriate the funds needed to
administer the program. It is pressured to weigh the
expected benefits of the program against its costs. But if
Congress can compel the States to enact and enforce its
program, Congress need not engage in any such analysis.
See, e.g., E. Young, Two Cheers for Process Federalism, 46
Vill. L. Rev. 1349, 1360–1361 (2001).
IV
A
The PASPA provision at issue here—prohibiting state
authorization of sports gambling—violates the anticom­
mandeering rule. That provision unequivocally dictates
what a state legislature may and may not do. And this is
true under either our interpretation or that advocated by
respondents and the United States. In either event, state
legislatures are put under the direct control of Congress.
It is as if federal officers were installed in state legislative
chambers and were armed with the authority to stop
legislators from voting on any offending proposals. A more
direct affront to state sovereignty is not easy to imagine.
Neither respondents nor the United States contends
that Congress can compel a State to enact legislation, but
they say that prohibiting a State from enacting new laws
is another matter. See Brief for Respondents 19; Brief for
United States 12. Noting that the laws challenged in New
York and Printz “told states what they must do instead of
what they must not do,” respondents contend that com­
mandeering occurs “only when Congress goes beyond
precluding state action and affirmatively commands it.”
Brief for Respondents 19 (emphasis deleted).
Cite as: 584 U. S. ____ (2018) 19
Opinion of the Court
This distinction is empty. It was a matter of happen­
stance that the laws challenged in New York and Printz
commanded “affirmative” action as opposed to imposing a
prohibition. The basic principle—that Congress cannot
issue direct orders to state legislatures—applies in either
event.
Here is an illustration. PASPA includes an exemption
for States that permitted sports betting at the time of
enactment, §3704, but suppose Congress did not adopt
such an exemption. Suppose Congress ordered States
with legalized sports betting to take the affirmative step of
criminalizing that activity and ordered the remaining
States to retain their laws prohibiting sports betting.
There is no good reason why the former would intrude
more deeply on state sovereignty than the latter.
B
Respondents and the United States claim that prior
decisions of this Court show that PASPA’s anti-
authorization provision is constitutional, but they misread
those cases. In none of them did we uphold the constitu­
tionality of a federal statute that commanded state legis­
latures to enact or refrain from enacting state law.
In South Carolina v. Baker, 485 U.S. 505 (1988), the
federal law simply altered the federal tax treatment of
private investments. Specifically, it removed the federal
tax exemption for interest earned on state and local bonds
unless they were issued in registered rather than bearer
form. This law did not order the States to enact or main­
tain any existing laws. Rather, it simply had the indirect
effect of pressuring States to increase the rate paid on
their bearer bonds in order to make them competitive with
other bonds paying taxable interest.
In any event, even if we assume that removal of the tax
exemption was tantamount to an outright prohibition of
the issuance of bearer bonds, see id., at 511, the law would
20 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
simply treat state bonds the same as private bonds. The
anticommandeering doctrine does not apply when Con­
gress evenhandedly regulates an activity in which both
States and private actors engage.
That principle formed the basis for the Court’s decision
in Reno v. Condon, 528 U.S. 141 (2000), which concerned
a federal law restricting the disclosure and dissemination
of personal information provided in applications for driv­
er’s licenses. The law applied equally to state and private
actors. It did not regulate the States’ sovereign authority
to “regulate their own citizens.” Id., at 151.
In Hodel, 452 U.S., at 289, the federal law, which in­
volved what has been called “cooperative federalism,” by
no means commandeered the state legislative process.
Congress enacted a statute that comprehensively regulated
surface coal mining and offered States the choice of
“either implement[ing]” the federal program “or else
yield[ing] to a federally administered regulatory program.”
Ibid. Thus, the federal law allowed but did not require the
States to implement a federal program. “States [were] not
compelled to enforce the [federal] standards, to expend
any state funds, or to participate in the federal regulatory
program in any manner whatsoever.” Id., at 288. If a
State did not “wish” to bear the burden of regulation, the
“full regulatory burden [would] be borne by the Federal
Government.” Ibid.
Finally, in FERC v. Mississippi, 456 U.S. 742 (1982),
the federal law in question issued no command to a state
legislature. Enacted to restrain the consumption of oil
and natural gas, the federal law directed state utility
regulatory commissions to consider, but not necessarily to
adopt, federal “ ‘rate design’ and regulatory standards.”
Id., at 746. The Court held that this modest requirement
did not infringe the States’ sovereign powers, but the
Court warned that it had “never . . . sanctioned explicitly a
federal command to the States to promulgate and enforce
Cite as: 584 U. S. ____ (2018) 21
Opinion of the Court
laws and regulations.” Id., at 761–762. FERC was decided
well before our decisions in New York and Printz, and
PASPA, unlike the law in FERC, does far more than re­
quire States to consider Congress’s preference that the
legalization of sports gambling be halted. See Printz, 521
U.S., at 929 (distinguishing FERC ).
In sum, none of the prior decisions on which respond­
ents and the United States rely involved federal laws that
commandeered the state legislative process. None con­
cerned laws that directed the States either to enact or to
refrain from enacting a regulation of the conduct of activi­
ties occurring within their borders. Therefore, none of
these precedents supports the constitutionality of the
PASPA provision at issue here.
V
Respondents and the United States defend the anti-
authorization prohibition on the ground that it constitutes
a valid preemption provision, but it is no such thing.
Preemption is based on the Supremacy Clause, and that
Clause is not an independent grant of legislative power to
Congress. Instead, it simply provides “a rule of decision.”
Armstrong v. Exceptional Child Center, Inc., 575 U. S. ___,
___ (2015) (slip op., at 3). It specifies that federal law is
supreme in case of a conflict with state law. Therefore, in
order for the PASPA provision to preempt state law, it
must satisfy two requirements. First, it must represent
the exercise of a power conferred on Congress by the Con­
stitution; pointing to the Supremacy Clause will not do.
Second, since the Constitution “confers upon Congress the
power to regulate individuals, not States,” New York, 505
U.S., at 166, the PASPA provision at issue must be best
read as one that regulates private actors.
Our cases have identified three different types of
preemption—“conflict,” “express,” and “field,” see English
v. General Elec. Co., 496 U.S. 72, 78–79 (1990)—but all of
22 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
them work in the same way: Congress enacts a law that
imposes restrictions or confers rights on private actors; a
state law confers rights or imposes restrictions that con­
flict with the federal law; and therefore the federal law
takes precedence and the state law is preempted.
This mechanism is shown most clearly in cases involv­
ing “conflict preemption.” A recent example is Mutual
Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013). In
that case, a federal law enacted under the Commerce
Clause regulated manufacturers of generic drugs, prohib­
iting them from altering either the composition or labeling
approved by the Food and Drug Administration. A State’s
tort law, however, effectively required a manufacturer to
supplement the warnings included in the FDA-approved
label. Id., at 480–486. We held that the state law was
preempted because it imposed a duty that was incon­
sistent—i.e., in conflict—with federal law. Id., at 493.
“Express preemption” operates in essentially the same
way, but this is often obscured by the language used by
Congress in framing preemption provisions. The provision
at issue in Morales v. Trans World Airlines, Inc., 504 U.S.
374 (1992), is illustrative. The Airline Deregulation Act of
1978 lifted prior federal regulations of airlines, and “[t]o
ensure that the States would not undo federal deregula­
tion with regulation of their own,” id., at 378, the Act
provided that “no State or political subdivision thereof . . .
shall enact or enforce any law, rule, regulation, standard,
or other provision having the force and effect of law relat­
ing to rates, routes, or services of any [covered] air car­
rier.” 49 U.S. C. App. §1305(a)(1) (1988 ed.).
This language might appear to operate directly on the
States, but it is a mistake to be confused by the way in
which a preemption provision is phrased. As we recently
explained, “we do not require Congress to employ a partic­
ular linguistic formulation when preempting state law.”
Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. ___,
Cite as: 584 U. S. ____ (2018) 23
Opinion of the Court
___–___ (2017) (slip op., at 10–11). And if we look beyond
the phrasing employed in the Airline Deregulation Act’s
preemption provision, it is clear that this provision oper­
ates just like any other federal law with preemptive effect.
It confers on private entities (i.e., covered carriers) a fed­
eral right to engage in certain conduct subject only to
certain (federal) constraints.
“Field preemption” operates in the same way. Field
preemption occurs when federal law occupies a “field” of
regulation “so comprehensively that it has left no room for
supplementary state legislation.” R. J. Reynolds Tobacco
Co. v. Durham County, 479 U.S. 130, 140 (1986). In
describing field preemption, we have sometimes used the
same sort of shorthand employed by Congress in express
preemption provisions. See, e.g., Oneok, Inc. v. Learjet,
Inc., 575 U. S. ___, ___ (2015) (slip op., at 2) (“Congress
has forbidden the State to take action in the field that the
federal statute pre-empts”). But in substance, field
preemption does not involve congressional commands to
the States. Instead, like all other forms of preemption, it
concerns a clash between a constitutional exercise of
Congress’s legislative power and conflicting state law. See
Crosby v. National Foreign Trade Council, 530 U.S. 363,
372, n. 6 (2000).
The Court’s decision in Arizona v. United States, 567
U.S. 387 (2012), shows how this works. Noting that
federal statutes “provide a full set of standards governing
alien registration,” we concluded that these laws “reflect[ ]
a congressional decision to foreclose any state regulation
in the area, even if it is parallel to federal standards.” Id.,
at 401. What this means is that the federal registration
provisions not only impose federal registration obligations
on aliens but also confer a federal right to be free from any
other registration requirements.
In sum, regardless of the language sometimes used by
Congress and this Court, every form of preemption is
24 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
based on a federal law that regulates the conduct of pri­
vate actors, not the States.
Once this is understood, it is clear that the PASPA
provision prohibiting state authorization of sports gam­
bling is not a preemption provision because there is no
way in which this provision can be understood as a regula­
tion of private actors. It certainly does not confer any
federal rights on private actors interested in conducting
sports gambling operations. (It does not give them a
federal right to engage in sports gambling.) Nor does it
impose any federal restrictions on private actors. If a
private citizen or company started a sports gambling
operation, either with or without state authorization,
§3702(1) would not be violated and would not provide any
ground for a civil action by the Attorney General or any
other party. Thus, there is simply no way to understand
the provision prohibiting state authorization as anything
other than a direct command to the States. And that is
exactly what the anticommandeering rule does not allow.
In so holding, we recognize that a closely related provi­
sion of PASPA, §3702(2), does restrict private conduct, but
that is not the provision challenged by petitioners. In Part
VI–B–2, infra, we consider whether §3702(2) is severable
from the provision directly at issue in these cases.
VI
Having concluded that §3702(1) violates the anti-
commandeering doctrine, we consider two additional
questions: first, whether the decision below should be
affirmed on an alternative ground and, second, whether
our decision regarding the anti-authorization provision
dooms the remainder of PASPA.
A
Respondents and the United States argue that, even if
we disagree with the Third Circuit’s decision regarding
Cite as: 584 U. S. ____ (2018) 25
Opinion of the Court
the constitutionality of the anti-authorization provision,
we should nevertheless affirm based on PASPA’s prohibi­
tion of state “licens[ing]” of sports gambling. Brief for
Respondents 43, n. 10; Brief for United States 34–35.
Although New Jersey’s 2014 Act does not expressly pro­
vide for the licensing of sports gambling operations, re­
spondents and the United States contend that the law
effectively achieves that result because the only entities
that it authorizes to engage in that activity, i.e., casinos
and racetracks, are already required to be licensed. Ibid.
We need not decide whether the 2014 Act violates
PASPA’s prohibition of state “licens[ing]” because that
provision suffers from the same defect as the prohibition of
state authorization. It issues a direct order to the state
legislature.29 Just as Congress lacks the power to order a
state legislature not to enact a law authorizing sports
gambling, it may not order a state legislature to refrain
from enacting a law licensing sports gambling.30
B
We therefore turn to the question whether, as petition­
ers maintain, our decision regarding PASPA’s prohibition
of the authorization and licensing of sports gambling
operations dooms the remainder of the Act. In order for
other PASPA provisions to fall, it must be “evident that
——————
29 Even if the prohibition of state licensing were not itself unconstitu­
tional, we do not think it could be severed from the invalid provision
forbidding state authorization. The provision of PASPA giving New
Jersey the option of legalizing sports gambling within one year of
enactment applied only to casinos operated “pursuant to a compre-
hensive system of State regulation.” §3704(a)(3)(B). This shows
that Congress preferred tightly regulated sports gambling over total
deregulation.
30 The dissent apparently disagrees with our holding that the provi­
sions forbidding state authorization and licensing violate the anticom­
mandering principle, but it provides no explanation for its position.
26 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
[Congress] would not have enacted those provisions which
are within its power, independently of [those] which [are]
not.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684
(1987) (internal quotation marks omitted). In conducting
that inquiry, we ask whether the law remains “fully opera­
tive” without the invalid provisions, Free Enterprise Fund
v. Public Company Accounting Oversight Bd., 561 U.S.
477, 509 (2010) (internal quotation marks omitted), but
“we cannot rewrite a statute and give it an effect altogether
different from that sought by the measure viewed as a
whole,” Railroad Retirement Bd. v. Alton R. Co., 295 U.S.
330, 362 (1935). We will consider each of the provisions at
issue separately.
1
Under 28 U.S. C. §3702(1), States are prohibited from
“operat[ing],” “sponsor[ing],” or “promot[ing]” sports gam­
bling schemes. If the provisions prohibiting state authori­
zation and licensing are stricken but the prohibition on
state “operat[ion]” is left standing, the result would be a
scheme sharply different from what Congress contemplated
when PASPA was enacted. At that time, Congress
knew that New Jersey was considering the legalization of
sports gambling in the privately owned Atlantic City
casinos and that other States were thinking about the
institution of state-run sports lotteries. PASPA addressed
both of these potential developments. It gave New Jersey
one year to legalize sports gambling in Atlantic City but
otherwise banned the authorization of sports gambling in
casinos, and it likewise prohibited the spread of state-run
lotteries. If Congress had known that States would be free
to authorize sports gambling in privately owned casinos,
would it have nevertheless wanted to prevent States from
running sports lotteries?
That seems most unlikely. State-run lotteries, which
sold tickets costing only a few dollars, were thought more
Cite as: 584 U. S. ____ (2018) 27
Opinion of the Court
benign than other forms of gambling, and that is why they
had been adopted in many States. Casino gambling, on
the other hand, was generally regarded as far more dan­
gerous. A gambler at a casino can easily incur heavy
losses, and the legalization of privately owned casinos was
known to create the threat of infiltration by organized
crime, as Nevada’s early experience had notoriously
shown.31 To the Congress that adopted PASPA, legalizing
sports gambling in privately owned casinos while prohibit­
ing state-run sports lotteries would have seemed exactly
backwards.
Prohibiting the States from engaging in commercial
activities that are permitted for private parties would also
have been unusual, and it is unclear what might justify
such disparate treatment. Respondents suggest that
Congress wanted to prevent States from taking steps that
the public might interpret as the endorsement of sports
gambling, Brief for Respondents 39, but we have never
held that the Constitution permits the Federal Govern­
ment to prevent a state legislature from expressing its
views on subjects of public importance. For these reasons,
we do not think that the provision barring state operation
of sports gambling can be severed.
We reach the same conclusion with respect to the provi­
sions prohibiting state “sponsor[ship]” and “promot[ion].”
The line between authorization, licensing, and operation,
on the one hand, and sponsorship or promotion, on the
other, is too uncertain. It is unlikely that Congress would
have wanted to prohibit such an ill-defined category of
state conduct.
2
Nor do we think that Congress would have wanted to
——————
31 See Clary 84–102.
28 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
sever the PASPA provisions that prohibit a private actor
from “sponsor[ing],” “operat[ing],” or “promot[ing]” sports
gambling schemes “pursuant to” state law. §3702(2). These
provisions were obviously meant to work together with the
provisions in §3702(1) that impose similar restrictions on
governmental entities. If Congress had known that the
latter provisions would fall, we do not think it would have
wanted the former to stand alone.
The present cases illustrate exactly how Congress must
have intended §3702(1) and §3702(2) to work. If a State
attempted to authorize particular private entities to en­
gage in sports gambling, the State could be sued under
§3702(1), and the private entity could be sued at the same
time under §3702(2). The two sets of provisions were
meant to be deployed in tandem to stop what PASPA
aimed to prevent: state legalization of sports gambling.
But if, as we now hold, Congress lacks the authority to
prohibit a State from legalizing sports gambling, the
prohibition of private conduct under §3702(2) ceases to
implement any coherent federal policy.
Under §3702(2), private conduct violates federal law
only if it is permitted by state law. That strange rule is
exactly the opposite of the general federal approach to
gambling. Under 18 U.S. C. §1955, operating a gambling
business violates federal law only if that conduct is illegal
under state or local law. Similarly, 18 U.S. C. §1953,
which criminalizes the interstate transmission of wager­
ing paraphernalia, and 18 U.S. C. §1084, which outlaws
the interstate transmission of information that assists in
the placing of a bet on a sporting event, apply only if the
underlying gambling is illegal under state law. See also
18 U.S. C. §1952 (making it illegal to travel in interstate
commerce to further a gambling business that is illegal
under applicable state law).
These provisions implement a coherent federal policy:
They respect the policy choices of the people of each State
Cite as: 584 U. S. ____ (2018) 29
Opinion of the Court
on the controversial issue of gambling. By contrast, if
§3702(2) is severed from §3702(1), it implements a per­
verse policy that undermines whatever policy is favored by
the people of a State. If the people of a State support the
legalization of sports gambling, federal law would make
the activity illegal. But if a State outlaws sports gam­
bling, that activity would be lawful under §3702(2). We do
not think that Congress ever contemplated that such a
weird result would come to pass.
PASPA’s enforcement scheme reinforces this conclusion.
PASPA authorizes civil suits by the Attorney General and
sports organizations but does not make sports gambling a
federal crime or provide civil penalties for violations. This
enforcement scheme is suited for challenging state author­
ization or licensing or a small number of private opera­
tions, but the scheme would break down if a State broadly
decriminalized sports gambling. It is revealing that the
Congressional Budget Office estimated that PASPA would
impose “no cost” on the Federal Government, see S. Rep.
No. 102–248, p. 10 (1991), a conclusion that would certainly
be incorrect if enforcement required a multiplicity of
civil suits and applications to hold illegal bookies and other
private parties in contempt.32
3
The remaining question that we must decide is whether
the provisions of PASPA prohibiting the “advertis[ing]” of
sports gambling are severable. See §§3702(1)–(2). If these
provisions were allowed to stand, federal law would forbid
the advertising of an activity that is legal under both
——————
32 Of course, one need not rely on the Senate Report for the com­
monsense proposition that leaving §3702(2) in place could wildly
change the fiscal calculus, “giv[ing] it an effect altogether different from
that sought by the measure viewed as a whole.” Railroad Retirement
Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935).
30 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
Opinion of the Court
federal and state law, and that is something that Congress
has rarely done. For example, the advertising of ciga­
rettes is heavily regulated but not totally banned. See
Federal Cigarette Labeling and Advertising Act, 79 Stat.
282; Family Smoking Prevention and Tobacco Control Act,
§§201–204, 123 Stat. 1842–1848.
It is true that at one time federal law prohibited the use
of the mail or interstate commerce to distribute adver­
tisements of lotteries that were permitted under state law,
but that is no longer the case. See United States v. Edge
Broadcasting Co., 509 U.S. 418, 421–423 (1993). In 1975,
Congress passed a new statute, codified at 18 U.S. C.
§1307, that explicitly exempts print advertisements re­
garding a lottery lawfully conducted by States, and in
Greater New Orleans Broadcasting Assn., Inc. v. United
States, 527 U.S. 173, 176 (1999), we held that the First
Amendment protects the right of a radio or television
station in a State with a lottery to run such advertise­
ments. In light of these developments, we do not think
that Congress would want the advertising provisions to
stand if the remainder of PASPA must fall.
For these reasons, we hold that no provision of PASPA
is severable from the provision directly at issue in these
cases.
* * *
The legalization of sports gambling is a controversial
subject. Supporters argue that legalization will produce
revenue for the States and critically weaken illegal sports
betting operations, which are often run by organized
crime. Opponents contend that legalizing sports gambling
will hook the young on gambling, encourage people of
modest means to squander their savings and earnings,
and corrupt professional and college sports.
The legalization of sports gambling requires an im­
portant policy choice, but the choice is not ours to make.
Cite as: 584 U. S. ____ (2018) 31
Opinion of the Court
Congress can regulate sports gambling directly, but if it
elects not to do so, each State is free to act on its own. Our
job is to interpret the law Congress has enacted and decide
whether it is consistent with the Constitution. PASPA is
not. PASPA “regulate[s] state governments’ regulation” of
their citizens, New York, 505 U.S., at 166. The Constitu­
tion gives Congress no such power.
The judgment of the Third Circuit is reversed.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–476 and 16–477
_________________
PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 14, 2018]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in its entirety. I write sepa-
rately, however, to express my growing discomfort with
our modern severability precedents.
I agree with the Court that the Professional and Ama-
teur Sports Protection Act (PASPA) exceeds Congress’
Article I authority to the extent it prohibits New Jersey
from “authoriz[ing]” or “licens[ing]” sports gambling, 28
U.S. C. §3702(1). Unlike the dissent, I do “doubt” that
Congress can prohibit sports gambling that does not cross
state lines. Post, at 2 (opinion of GINSBURG, J.); see Li-
cense Tax Cases, 5 Wall. 462, 470–471 (1867) (holding that
Congress has “no power” to regulate “the internal com-
merce or domestic trade of the States,” including the
intrastate sale of lottery tickets); United States v. Lopez,
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
THOMAS, J., concurring
514 U.S. 549, 587–601 (1995) (THOMAS, J., concurring)
(documenting why the Commerce Clause does not permit
Congress to regulate purely local activities that have a
substantial effect on interstate commerce). But even
assuming the Commerce Clause allows Congress to pro-
hibit intrastate sports gambling “directly,” it “does not
authorize Congress to regulate state governments’ regula-
tion of interstate commerce.” New York v. United States,
505 U.S. 144, 166 (1992). The Necessary and Proper
Clause does not give Congress this power either, as a law
is not “proper” if it “subvert[s] basic principles of federal-
ism and dual sovereignty.” Gonzales v. Raich, 545 U.S. 1,
65 (2005) (THOMAS, J., dissenting). Commandeering the
States, as PASPA does, subverts those principles. See
Printz v. United States, 521 U.S. 898, 923–924 (1997).
Because PASPA is at least partially unconstitutional,
our precedents instruct us to determine “which portions of
the . . . statute we must sever and excise.” United States
v. Booker, 543 U.S. 220, 258 (2005) (emphasis deleted).
The Court must make this severability determination by
asking a counterfactual question: “ ‘Would Congress still
have passed’ the valid sections ‘had it known’ about the
constitutional invalidity of the other portions of the stat-
ute?” Id., at 246 (quoting Denver Area Ed. Telecommuni-
cations Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996)
(plurality opinion)). I join the Court’s opinion because it
gives the best answer it can to this question, and no party
has asked us to apply a different test. But in a future
case, we should take another look at our severability
precedents.
Those precedents appear to be in tension with traditional
limits on judicial authority. Early American courts did
not have a severability doctrine. See Walsh, Partial Un-
constitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010)
(Walsh). They recognized that the judicial power is, fun-
damentally, the power to render judgments in individual
Cite as: 584 U. S. ____ (2018) 3
THOMAS, J., concurring
cases. See id., at 755; Baude, The Judgment Power, 96
Geo. L. J. 1807, 1815 (2008). Judicial review was a by-
product of that process. See generally P. Hamburger, Law
and Judicial Duty (2008); Prakash & Yoo, The Origins of
Judicial Review, 70 U. Chi. L. Rev. 887 (2003). As Chief
Justice Marshall famously explained, “[i]t is emphatically
the province and duty of the judicial department to say
what the law is” because “[t]hose who apply the rule to
particular cases, must of necessity expound and interpret
that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
If a plaintiff relies on a statute but a defendant argues
that the statute conflicts with the Constitution, then
courts must resolve that dispute and, if they agree with
the defendant, follow the higher law of the Constitution.
See id., at 177–178; The Federalist No. 78, p. 467
(C. Rossiter ed. 1961) (A. Hamilton). Thus, when early
American courts determined that a statute was unconsti-
tutional, they would simply decline to enforce it in the case
before them. See Walsh 755–766. “[T]here was no ‘next
step’ in which courts inquired into whether the legislature
would have preferred no law at all to the constitutional
remainder.” Id., at 777.
Despite this historical practice, the Court’s modern
cases treat the severability doctrine as a “remedy” for
constitutional violations and ask which provisions of the
statute must be “excised.” See, e.g., Ayotte v. Planned
Parenthood of Northern New Eng., 546 U.S. 320, 329
(2006); Booker, supra, at 245; Alaska Airlines, Inc. v.
Brock, 480 U.S. 678, 686 (1987). This language cannot be
taken literally. Invalidating a statute is not a “remedy,”
like an injunction, a declaration, or damages. See Harri-
son, Severability, Remedies, and Constitutional Adjudica-
tion, 83 Geo. Wash. L. Rev. 56, 82–88 (2014) (Harrison).
Remedies “operate with respect to specific parties,” not “on
legal rules in the abstract.” Id., at 85; see also Massachu-
setts v. Mellon, 262 U.S. 447, 488 (1923) (explaining that
4 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
THOMAS, J., concurring
the power “to review and annul acts of Congress” is “little
more than the negative power to disregard an unconstitu-
tional enactment” and that “the court enjoins . . . not the
execution of the statute, but the acts of the official”). And
courts do not have the power to “excise” or “strike down”
statutes. See 39 Op. Atty. Gen. 22, 22–23 (1937) (“The
decisions are practically in accord in holding that the
courts have no power to repeal or abolish a statute”);
Harrison 82 (“[C]ourts do not make [nonseverable] provi-
sions inoperative . . . . Invalidation by courts is a figure of
speech”); Mitchell, The Writ-of-Erasure Fallacy, 104 Va.
L. Rev. (forthcoming 2018) (manuscript, at 4) (“The federal
courts have no authority to erase a duly enacted law from
the statute books”), online at https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3158038 (as last visited May 11,
2018).
Because courts cannot take a blue pencil to statutes, the
severability doctrine must be an exercise in statutory
interpretation. In other words, the severability doctrine
has courts decide how a statute operates once they con-
clude that part of it cannot be constitutionally enforced.
See Fallon, As-Applied and Facial Challenges and Third-
Party Standing, 113 Harv. L. Rev. 1321, 1333–1334
(2000); Harrison 88. But even under this view, the sever-
ability doctrine is still dubious for at least two reasons.
First, the severability doctrine does not follow basic
principles of statutory interpretation. Instead of requiring
courts to determine what a statute means, the severability
doctrine requires courts to make “a nebulous inquiry into
hypothetical congressional intent.” Booker, supra, at 320,
n. 7 (THOMAS, J., dissenting in part). It requires judges to
determine what Congress would have intended had it
known that part of its statute was unconstitutional.* But
——————
* The first court to engage in this counterfactual exploration of legis-
lative intent was the Massachusetts Supreme Judicial Court in Warren
Cite as: 584 U. S. ____ (2018) 5
THOMAS, J., concurring
it seems unlikely that the enacting Congress had any
intent on this question; Congress typically does not pass
statutes with the expectation that some part will later be
deemed unconstitutional. See Walsh 740–741; Stern,
Separability and Separability Clauses in the Supreme
Court, 51 Harv. L. Rev. 76, 98 (1937) (Stern). Without any
actual evidence of intent, the severability doctrine invites
courts to rely on their own views about what the best
statute would be. See Walsh 752–753; Stern 112–113.
More fundamentally, even if courts could discern Con-
gress’ hypothetical intentions, intentions do not count
unless they are enshrined in a text that makes it through
the constitutional processes of bicameralism and present-
ment. See Wyeth v. Levine, 555 U.S. 555, 586–588 (2009)
(THOMAS, J., concurring in judgment). Because we have
“ ‘a Government of laws, not of men,’ ” we are governed by
“legislated text,” not “legislators’ intentions”—and espe-
cially not legislators’ hypothetical intentions. Zuni Public
School Dist. No. 89 v. Department of Education, 550 U.S.
81, 119 (2007) (Scalia, J., dissenting). Yet hypothetical
intent is exactly what the severability doctrine turns on,
at least when Congress has not expressed its fallback
position in the text.
Second, the severability doctrine often requires courts to
weigh in on statutory provisions that no party has stand-
ing to challenge, bringing courts dangerously close to
issuing advisory opinions. See Stern 77; Lea, Situational
Severability, 103 Va. L. Rev. 735, 788–803 (2017) (Lea). If
one provision of a statute is deemed unconstitutional, the
severability doctrine places every other provision at risk of
——————
v. Mayor and Aldermen of Charlestown, 68 Mass. 84, 99 (1854). This
Court adopted the Warren formulation in the late 19th century, see
Allen v. Louisiana, 103 U.S. 80, 84 (1881), an era when statutory
interpretation privileged Congress’ unexpressed “intent” over the
enacted text, see, e.g., Church of Holy Trinity v. United States, 143
U.S. 457, 472 (1892); United States v. Moore, 95 U.S. 760, 763 (1878).
6 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
THOMAS, J., concurring
being declared nonseverable and thus inoperative; our
precedents do not ask whether the plaintiff has standing
to challenge those other provisions. See National Federa-
tion of Independent Business v. Sebelius, 567 U.S. 519,
696–697 (2012) (joint dissent) (citing, as an example,
Williams v. Standard Oil Co. of La., 278 U.S. 235, 242–
244 (1929)). True, the plaintiff had standing to challenge
the unconstitutional part of the statute. But the severa-
bility doctrine comes into play only after the court has
resolved that issue—typically the only live controversy
between the parties. In every other context, a plaintiff
must demonstrate standing for each part of the statute
that he wants to challenge. See Lea 789, 751, and nn. 79–
80 (citing, as examples, Davis v. Federal Election Comm’n,
554 U.S. 724, 733–734 (2008); DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 346, 350–353 (2006)). The severabil-
ity doctrine is thus an unexplained exception to the nor-
mal rules of standing, as well as the separation-of-powers
principles that those rules protect. See Steel Co. v. Citi-
zens for Better Environment, 523 U.S. 83, 101 (1998).
In sum, our modern severability precedents are in ten-
sion with longstanding limits on the judicial power. And,
though no party in this case has asked us to reconsider
these precedents, at some point, it behooves us to do so.
Cite as: 584 U. S. ____ (2018) 1
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–476 and 16–477
_________________
PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 14, 2018]
JUSTICE BREYER, concurring in part and dissenting in
part.
I agree with JUSTICE GINSBURG that 28 U.S. C.
§3702(2) is severable from the challenged portion of
§3702(1). The challenged part of subsection (1) prohibits a
State from “author[izing]” or “licens[ing]” sports gambling
schemes; subsection (2) prohibits individuals from “spon-
sor[ing], operat[ing], advertis[ing], or promot[ing]” sports
gambling schemes “pursuant to the law . . . of a govern-
mental entity.” The first says that a State cannot author-
ize sports gambling schemes under state law; the second
says that (just in case a State finds a way to do so) sports
gambling schemes that a State authorizes are unlawful
under federal law regardless. As JUSTICE GINSBURG
makes clear, the latter section can live comfortably on its
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
own without the first.
Why would Congress enact both these provisions? The
obvious answer is that Congress wanted to “keep sports
gambling from spreading.” S. Rep. No. 102–248, pp. 4–6
(1991). It feared that widespread sports gambling would
“threate[n] to change the nature of sporting events from
wholesome entertainment for all ages to devices for gam-
bling.” Id., at 4. And it may have preferred that state
authorities enforce state law forbidding sports gambling
than require federal authorities to bring civil suits to
enforce federal law forbidding about the same thing.
Alternatively, Congress might have seen subsection (2) as
a backup, called into play if subsection (1)’s requirements,
directed to the States, turned out to be unconstitutional—
which, of course, is just what has happened. Neither of
these objectives is unreasonable.
So read, the two subsections both forbid sports gambling
but §3702(2) applies federal policy directly to individuals
while the challenged part of §3702(1) forces the States to
prohibit sports gambling schemes (thereby shifting the
burden of enforcing federal regulatory policy from the
Federal Government to state governments). Section
3702(2), addressed to individuals, standing alone seeks to
achieve Congress’ objective of halting the spread of sports
gambling schemes by “regulat[ing] interstate commerce
directly.” New York v. United States, 505 U.S. 144, 166
(1992). But the challenged part of subsection (1) seeks the
same end indirectly by “regulat[ing] state governments’
regulation of interstate commerce.” Ibid. And it does so
by addressing the States (not individuals) directly and
telling state legislatures what laws they must (or cannot)
enact. Under our precedent, the first provision (directly
and unconditionally telling States what laws they must
enact) is unconstitutional, but the second (directly telling
individuals what they cannot do) is not. See ibid.
As so interpreted, the statutes would make New Jersey’s
Cite as: 584 U. S. ____ (2018) 3
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
victory here mostly Pyrrhic. But that is because the only
problem with the challenged part of §3702(1) lies in its
means, not its end. Congress has the constitutional power
to prohibit sports gambling schemes, and no party here
argues that there is any constitutional defect in §3702(2)’s
alternative means of doing so.
I consequently join JUSTICE GINSBURG’s dissenting
opinion in part, and all but Part VI–B of the Court’s
opinion.
Cite as: 584 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–476 and 16–477
_________________
PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 14, 2018]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
joins, and with whom JUSTICE BREYER joins in part,
dissenting.
The petition for certiorari filed by the Governor of New
Jersey invited the Court to consider a sole question: “Does
a federal statute that prohibits modification or repeal of
state-law prohibitions on private conduct impermissibly
commandeer the regulatory power of States in contraven-
tion of New York v. United States, 505 U.S. 144 (1992)? ”
Pet. for Cert. in No. 16–476, p. i.
Assuming, arguendo, a “yes” answer to that question,
there would be no cause to deploy a wrecking ball destroy-
ing the Professional and Amateur Sports Protection Act
(PASPA) in its entirety, as the Court does today. Leaving
out the alleged infirmity, i.e., “commandeering” state
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
GINSBURG, J., dissenting
regulatory action by prohibiting the States from “author-
iz[ing]” and “licens[ing]” sports-gambling schemes, 28
U.S. C. §3702(1), two federal edicts should remain intact.
First, PASPA bans States themselves (or their agencies)
from “sponsor[ing], operat[ing], advertis[ing], [or] pro-
mot[ing]” sports-gambling schemes. Ibid. Second, PASPA
stops private parties from “sponsor[ing], operat[ing], ad-
vertis[ing], or promot[ing]” sports-gambling schemes if
state law authorizes them to do so. §3702(2).1 Nothing in
these §3702(1) and §3702(2) prohibitions commands States
to do anything other than desist from conduct federal law
proscribes.2 Nor is there any doubt that Congress has
power to regulate gambling on a nationwide basis, author-
ity Congress exercised in PASPA. See Gonzales v. Raich,
545 U.S. 1, 17 (2005) (“Our case law firmly establishes
Congress’ power to regulate purely local activities that are
part of an economic ‘class of activities’ that have a sub-
stantial effect on interstate commerce.”).
Surely, the accountability concern that gave birth to the
anticommandeering doctrine is not implicated in any
federal proscription other than the bans on States’ author-
izing and licensing sports-gambling schemes. The concern
triggering the doctrine arises only “where the Federal
Government compels States to regulate” or to enforce
federal law, thereby creating the appearance that state
officials are responsible for policies Congress forced them
to enact. New York v. United States, 505 U.S. 144, 168
(1992). If States themselves and private parties may not
——————
1 PASPA was not designed to eliminate any and all sports gambling.
The statute targets sports-gambling schemes, i.e., organized markets
for sports gambling, whether operated by a State or by a third party
under state authorization.
2 In lieu of a flat ban, PASPA prohibits third parties from operating
sports-gambling schemes only if state law permits them to do so. If
a state ban is in place, of course, there is no need for a federal
proscription.
Cite as: 584 U. S. ____ (2018) 3
GINSBURG, J., dissenting
operate sports-gambling schemes, responsibility for the
proscriptions is hardly blurred. It cannot be maintained
credibly that state officials have anything to do with the
restraints. Unmistakably, the foreclosure of sports-
gambling schemes, whether state run or privately oper-
ated, is chargeable to congressional, not state, legislative
action.
When a statute reveals a constitutional flaw, the Court
ordinarily engages in a salvage rather than a demolition
operation: It “limit[s] the solution [to] severing any prob-
lematic portions while leaving the remainder intact.” Free
Enterprise Fund v. Public Company Accounting Oversight
Bd., 561 U.S. 477, 508 (2010) (internal quotation marks
omitted). The relevant question is whether the Legisla-
ture would have wanted unproblematic aspects of the
legislation to survive or would want them to fall along
with the infirmity.3 As the Court stated in New York,
“[u]nless it is evident that the Legislature would not have
enacted those provisions which are within its power, . . .
the invalid part may be dropped if what is left is fully
operative as a law.” 505 U.S., at 186 (internal quotation
marks omitted). Here, it is scarcely arguable that Con-
gress “would have preferred no statute at all,” Executive
Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014)
(slip op., at 10), over one that simply stops States and
private parties alike from operating sports-gambling
schemes.
The Court wields an ax to cut down §3702 instead of
using a scalpel to trim the statute. It does so apparently
in the mistaken assumption that private sports-gambling
schemes would become lawful in the wake of its decision.
——————
3 Notably, in the two decisions marking out and applying the anti-
commandeering doctrine to invalidate federal law, the Court invalidated
only the offending provision, not the entire statute. New York v.
United States, 505 U.S. 144, 186–187 (1992); Printz v. United States,
521 U.S. 898, 935 (1997).
4 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
GINSBURG, J., dissenting
In particular, the Court holds that the prohibition on state
“operat[ion]” of sports-gambling schemes cannot survive,
because it does not believe Congress would have “wanted
to prevent States from running sports lotteries” “had [it]
known that States would be free to authorize sports gam-
bling in privately owned casinos.” Ante, at 26. In so rea-
soning, the Court shutters §3702(2), under which private
parties are prohibited from operating sports-gambling
schemes precisely when state law authorizes them to do
so.4
This plain error pervasively infects the Court’s severa-
bility analysis. The Court strikes Congress’ ban on state
“sponsor[ship]” and “promot[ion]” of sports-gambling
schemes because it has (mistakenly) struck Congress’
prohibition on state “operat[ion]” of such schemes. See
ante, at 27. It strikes Congress’ prohibitions on private
“sponsor[ship],” “operat[ion],” and “promot[ion]” of sports-
gambling schemes because it has (mistakenly) struck
those same prohibitions on the States. See ante, at 27–28.
And it strikes Congress’ prohibition on “advertis[ing]”
sports-gambling schemes because it has struck everything
else. See ante, at 29–30.
* * *
In PASPA, shorn of the prohibition on modifying or
repealing state law, Congress permissibly exercised its
authority to regulate commerce by instructing States and
private parties to refrain from operating sports-gambling
schemes. On no rational ground can it be concluded that
Congress would have preferred no statute at all if it could
——————
4 As earlier indicated, see supra, at 2, direct federal regulation of
sports-gambling schemes nationwide, including private-party schemes,
falls within Congress’ power to regulate activities having a substantial
effect on interstate commerce. See Gonzales v. Raich, 545 U.S. 1, 17
(2005). Indeed, according to the Court, direct regulation is precisely
what the anticommandeering doctrine requires. Ante, at 14–18.
Cite as: 584 U. S. ____ (2018) 5
GINSBURG, J., dissenting
not prohibit States from authorizing or licensing such
schemes. Deleting the alleged “commandeering” direc-
tions would free the statute to accomplish just what Con-
gress legitimately sought to achieve: stopping sports-
gambling regimes while making it clear that the stoppage
is attributable to federal, not state, action. I therefore
dissent from the Court’s determination to destroy PASPA
rather than salvage the statute.