NCAA v. Governor of New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 14-4546, 14-4568, and 14-4569
_____________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
an unincorporated association; NATIONAL BASKETBALL
ASSOCIATION, a joint venture; NATIONAL FOOTBALL
LEAGUE, an unincorporated association; NATIONAL
HOCKEY LEAGUE, an unincorporated association; OFFICE
OF THE COMMISSIONER OF BASEBALL, an
unincorporated association doing business as MAJOR
LEAGUE BASEBALL
v.
GOVERNOR OF THE STATE OF NEW JERSEY; DAVID
L. REBUCK, Director of the New Jersey Division of Gaming
Enforcement and Assistant Attorney General of the State of
New Jersey; FRANK ZANZUCCKI, Executive Director of
the New Jersey Racing Commission; NEW JERSEY
THOROUGHBRED HORSEMEN’S ASSOCIATION, INC;
NEW JERSEY SPORTS & EXPOSITION AUTHORITY
STEPHEN M. SWEENEY, President of the New Jersey
Senate; VINCENT PRIETO, Speaker of the New Jersey
General Assembly (Intervenors in District Court)
Appellants in 14-4568
Governor of New Jersey; David L. Rebuck; Frank Zanzuccki,
Appellants in 14-4546
New Jersey Thoroughbred Horsemen’s Association, Inc.,
Appellant in 14-4569
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 3-14-cv-06450)
District Judge: Honorable Michael A. Shipp
Argued on March 17, 2015 before Merits Panel
Court Ordered Rehearing En Banc on October 14, 2015
Argued En Banc on February 17, 2016
Before: AMBRO, FUENTES, SMITH, FISHER, JORDAN,
HARDIMAN, GREENAWAY JR., VANASKIE, KRAUSE,
RESTREPO, RENDELL, and BARRY, Circuit Judges
2
(Opinion filed: August 9, 2016)
John J. Hoffman, Esquire
Acting Attorney General of the State of New Jersey
Jeffrey S. Jacobson, Esquire
Stuart M. Feinblatt, Esquire
Peter M. Slocum, Esquire
Office of Attorney General of New Jersey
25 Market Street
Trenton, NJ 08625
Matthew M. Hoffman, Esquire
Gibson Dunn
333 South Grand Avenue
Los Angeles, CA 90071
Ashley E. Johnson, Esquire
Gibson Dunn
2100 McKinney Avenue
Suite 1100
Dallas, TX 75201
Theodore B. Olson, Esquire (ARGUED)
Matthew D. McGill, Esquire
Gibson Dunn
1050 Connecticut Avenue, N.W.
9th Floor
Washington, DC 20036
Counsel for Appellants Governor of the State of
New Jersey, David L. Rebuck, and Frank
Zanzuccki
3
Elliott M. Berman, Esquire
McElroy, Deutsch, Mulvaney & Carpenter
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102
Ronald J. Riccio, Esquire (ARGUED)
Edward A. Hartnett, Esquire
McElroy, Deutsch, Mulvaney & Carpenter
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07962
Counsel for Appellant New Jersey
Thoroughbred Horsemen’s Association
Michael R. Griffinger, Esquire
Thomas R. Valen, Esquire
Jennifer A. Hradil, Esquire
Gibbons P.C.
One Gateway Center
Newark, New Jersey 07102
Counsel for Appellants Stephen M. Sweeney
and Vincent Prieto
4
Paul D. Clement, Esquire (ARGUED)
Erin Murphy, Esquire
Bancroft PLLC
1919 M Street, N.W.
Suite 470
Washington, DC 20036
Jeffrey A. Mishkin, Esquire
Anthony J. Dreyer, Esquire
Skadden, Arps, Slate, Meagher, & Flom
4 Times Square
New York, NY 10036
William J. O’Shaughnessy, Esquire
Richard Hernandez, Esquire
McCarter & English
100 Mulberry Street
Four Gateway Center, 14th Floor
Newark, NJ 07102
Counsel for Appellees National Collegiate
Athletic Association; National Basketball
Association; National Football League;
National Hockey League; Office of the
Commissioner of Baseball
Joyce R. Branda, Esquire
5
Acting Assistant Attorney General, Civil Division
Paul J. Fishman, Esquire (ARGUED)
United States Attorney of the District of New Jersey
Scott R. McIntosh, Esquire
Peter J. Phipps, Esquire
Attorneys, Civil Division
U.S. Department of Justice
P.O. Box 883
Washington, DC 20044
Counsel for Amicus United States of America
OPINION
RENDELL, Circuit Judge:
The issue presented before the en banc court is
whether SB 2460, which the New Jersey Legislature enacted
in 2014 to partially repeal certain prohibitions on sports
gambling (the “2014 Law”), violates federal law. 2014 N.J.
Sess. Law Serv. Ch. 62, codified at N.J. Stat. Ann. §§ 5:12A-
7 to -9. The District Court held that the 2014 Law violates
the Professional and Amateur Sports Protection Act
(“PASPA”), 28 U.S.C. §§ 3701-3704. A panel of this Court
affirmed this ruling in a divided opinion which was
subsequently vacated upon the grant of the Petition for
Rehearing en banc. We now hold that the District Court
correctly ruled that because PASPA, by its terms, prohibits
states from authorizing by law sports gambling, and because
the 2014 Law does exactly that, the 2014 Law violates federal
6
law. We also hold that we correctly ruled in Christie I that
PASPA does not commandeer the states in a way that runs
afoul of the Constitution.
I. Background
Congress passed PASPA in 1992 to prohibit state-
sanctioned sports gambling. PASPA provides:
It shall be unlawful for—
(1) a governmental entity to
sponsor, operate, advertise,
promote, license, or authorize by
law or compact, or
(2) a person to sponsor, operate,
advertise, or promote, pursuant to
the law or compact of a governmental
entity,a lottery, sweepstakes, or other
betting, gambling, or wagering scheme
based . . . on one or more competitive
games in which amateur or professional
athletes participate, or are intended to
participate, or on one or more
performances of such athletes in such
games.
28 U.S.C. § 3702 (emphasis added). PASPA defines
“governmental entity” to include states and their political
subdivisions. Id. § 3701(2). It includes a remedial provision
that permits any sports league whose games are or will be the
subject of sports gambling to bring an action to enjoin the
gambling. Id. § 3703.
7
Congress included in PASPA exceptions for state-
sponsored sports wagering in Nevada and sports lotteries in
Oregon and Delaware, and also an exception for New Jersey
but only if New Jersey were to enact a sports gambling
scheme within one year of PASPA’s enactment. Id.
§ 3704(a). New Jersey did not do so, and thus the PASPA
exception expired. Notably, sports gambling was prohibited
in New Jersey for many years by statute and by the New
Jersey Constitution. See, e.g., N.J. Const. Art. IV § VII ¶ 2;
N.J. Stat. Ann. § 2C:37-2; N.J. Stat. Ann. § 2A:40-1. In
2010, however, the New Jersey Legislature held public
hearings on the advisability of allowing sports gambling.
These hearings included testimony that sports gambling
would generate revenues for New Jersey’s struggling casinos
and racetracks. In 2011, the Legislature held a referendum
asking New Jersey voters whether sports gambling should be
permitted, and sixty-four percent voted in favor of amending
the New Jersey Constitution to permit sports gambling. The
constitutional amendment provided:
It shall also be lawful for the Legislature
to authorize by law wagering at casinos
or gambling houses in Atlantic City on
the results of any professional, college,
or amateur sport or athletic event, except
that wagering shall not be permitted on a
college sport or athletic event that takes
place in New Jersey or on a sport or
athletic event in which any New Jersey
college team participates regardless of
where the event takes place . . . .
8
N.J. Const. Art. IV, § VII, ¶ 2(D). The amendment thus
permitted the New Jersey Legislature to “authorize by law”
sports “wagering at casinos or gambling houses in Atlantic
City,” except that wagering was not permitted on New Jersey
college teams or on any collegiate event occurring in New
Jersey. An additional section of the amendment permitted the
Legislature to “authorize by law” sports “wagering at current
or former running and harness horse racetracks,” subject to
the same restrictions regarding New Jersey college teams and
collegiate events occurring in New Jersey. Id. ¶ 2(F).
After voters approved the sports-wagering
constitutional amendment, the New Jersey Legislature
enacted the Sports Wagering Act in 2012 (“2012 Law”),
which provided for regulated sports wagering at New Jersey’s
casinos and racetracks. N.J. Stat. Ann. §§ 5:12A-1 et seq.
(2012). The 2012 Law established a comprehensive
regulatory scheme, requiring licenses for operators and
individual employees, extensive documentation, minimum
cash reserves, and Division of Gaming Enforcement access to
security and surveillance systems.
Five sports leagues1 sued to enjoin the 2012 Law as
violative of PASPA.2 The New Jersey Parties did not dispute
1
The sports leagues were the National Collegiate
Athletic Association, National Football League, National
Basketball Association, National Hockey League, and the
Office of the Commissioner of Baseball, doing business as
Major League Baseball (collectively, the “Leagues”).
2
The Leagues named as defendants Christopher J.
Christie, the Governor of the State of New Jersey; David L.
9
that the 2012 Law violated PASPA, but urged instead that
PASPA was unconstitutional under the anti-commandeering
doctrine. The District Court held that PASPA was
constitutional and enjoined implementation of the 2012 Law.
The New Jersey Parties appealed, and we affirmed in
National Collegiate Athletic Ass’n v. Governor of New
Jersey, 730 F.3d 208 (3d Cir. 2013) (Christie I).
In Christie I, we rejected the New Jersey Parties’
argument that PASPA was unconstitutional by
commandeering New Jersey’s legislative process. In doing
so, we stated that “[n]othing in [PASPA’s] words requires
that the states keep any law in place. All that is prohibited is
the issuance of gambling ‘license[s]’ or the affirmative
‘authoriz[ation] by law’ of gambling schemes.” Id. at 232
Rebuck, the Director of the New Jersey Division of Gaming
Enforcement and Assistant Attorney General of the State of
New Jersey; and Frank Zanzuccki, Executive Director of the
New Jersey Racing Commission. The New Jersey
Thoroughbred Horsemen’s Association, Inc. (“NJTHA”)
intervened as a defendant, as did Stephen M. Sweeney,
President of the New Jersey Senate, and Sheila Y. Oliver,
Speaker of the New Jersey General Assembly (“State
Legislators”). We collectively refer to these parties as the
“New Jersey Parties.” In the present case, the New Jersey
Parties are the same, with some exceptions. NJTHA was
named as a defendant (i.e., it did not intervene), as was the
New Jersey Sports and Exposition Authority; the latter is not
participating in this appeal. Additionally, Vincent Prieto, not
Sheila Y. Oliver, is now the Speaker of the General
Assembly.
10
(alterations in original). The New Jersey Parties had urged
that PASPA commandeered the state because it prohibited the
repeal of New Jersey’s prohibitions on sports gambling; they
reasoned that repealing a statute barring an activity would be
equivalent to authorizing the activity, and “authorizing” was
not allowed by PASPA. We rejected that argument,
observing that “PASPA speaks only of ‘authorizing by law’ a
sports gambling scheme,” and “[w]e [did] not see how having
no law in place governing sports wagering is the same as
authorizing it by law.” Id. (emphasis in original). We further
emphasized that “the lack of an affirmative prohibition of an
activity does not mean it is affirmatively authorized by law.
The right to do that which is not prohibited derives not from
the authority of the state but from the inherent rights of the
people.” Id. (emphasis in original). In short, we concluded
that the New Jersey Parties’ argument rested on a “false
equivalence between repeal and authorization.” Id. at 233.
The New Jersey Parties appealed to the Supreme Court of the
United States, which denied certiorari.
Undeterred, in 2014, the Legislature passed the 2014
Law, SB 2460, which provided in part:
[A]ny rules and regulations that may
require or authorize any State agency to
license, authorize, permit or otherwise
take action to allow any person to engage
in the placement or acceptance of any
wager on any professional, collegiate, or
amateur sport contest or athletic event, or
that prohibit participation in or operation
of a pool that accepts such wagers, are
repealed to the extent they apply or may
11
be construed to apply at a casino or
gambling house operating in this State in
Atlantic City or a running or harness
horse racetrack in this State, to the
placement and acceptance of wagers on
professional, collegiate, or amateur sport
contests or athletic events . . . .
N.J. Stat. Ann. § 5:12A-7. The 2014 Law specifically
prohibited wagering on New Jersey college teams’
competitions and on any collegiate competition occurring in
New Jersey, and it limited sports wagering to “persons 21
years of age or older situated at such location[s],” namely
casinos and racetracks. Id.
II. Procedural History and Parties’ Arguments
The Leagues filed suit to enjoin the New Jersey Parties
from giving effect to the 2014 Law. The District Court held
that the 2014 Law violates PASPA, granted summary
judgment in favor of the Leagues, and issued a permanent
injunction against the Governor of New Jersey, the Director
of the New Jersey Division of Gaming Enforcement, and the
Executive Director of the New Jersey Racing Commission
(collectively, the “New Jersey Enjoined Parties”).3 The
3
In the District Court, the New Jersey Enjoined Parties
urged that the Eleventh Amendment gave them immunity
such that they could not be sued in an action challenging the
2014 Law. The District Court rejected this argument, as do
we, and we note that, while the issue was briefed, the New
Jersey Enjoined Parties did not press—or even mention—this
issue at oral argument before either the merits panel or the en
banc court. They contend that, because the 2014 Law is a
12
self-executing repeal that requires no action from them or any
other state official, they are immune from suit. This
argument fails. The New Jersey Enjoined Parties are subject
to suit under the Ex parte Young exception to Eleventh
Amendment immunity, which “permit[s] the federal courts to
vindicate federal rights and hold state officials responsible to
‘the supreme authority of the United States.’” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984)
(quoting Ex parte Young, 209 U.S. 123, 160 (1908)). The
contrary argument of the New Jersey Enjoined Parties relies
on a false premise that execution of the 2014 Law involves no
affirmative ultra vires act by state officials. But the 2014
Law is far from passive. As we conclude at length, the 2014
Law establishes a regulatory regime that authorizes wagering
on sports in limited locations for particular persons, so it is an
affirmative act by New Jersey state officials to authorize by
law sports betting, in violation of PASPA. As such,
implementation of the law falls squarely within the Ex parte
Young exception to sovereign immunity because it is “simply
an illegal act upon the part of a state official in attempting, by
the use of the name of the state, to enforce a legislative
enactment which is void because” it is contrary to federal law.
209 U.S. at 159. “In determining whether the doctrine of Ex
parte Young avoids an Eleventh Amendment bar to suit, a
court need only conduct a straightforward inquiry into
whether the complaint alleges an ongoing violation of federal
law and seeks relief properly characterized as prospective.”
Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland,
535 U.S. 635, 645 (2002) (internal quotation marks and
alterations omitted). That is precisely the situation we face in
this case. We therefore need not address the unsettled
question of whether an Ex parte Young exception must exist
13
District Court interpreted Christie I as holding that PASPA
offers two choices to states: maintaining prohibitions on
sports gambling or completely repealing them. It reasoned
that the 2014 Law runs afoul of PASPA because the 2014
Law is a partial repeal that necessarily results in sports
wagering with the State’s imprimatur. The New Jersey
Parties appealed.
On appeal, the New Jersey Parties argue that the 2014
Law does not constitute an authorization in violation of
PASPA and it is consistent with Christie I because the New
Jersey Legislature effected a repealer as Christie I specifically
permitted.
The Leagues urge that the 2014 Law violates PASPA
because it “authorizes by law” sports wagering and also
impermissibly “licenses” the activity by confining the repeal
of gambling prohibitions to licensed gambling facilities and
thus, in effect, enlarging the terms of existing gaming
licenses. The United States submitted an amicus brief in
support of the Leagues.
A panel of this Court affirmed in a divided opinion,
which was subsequently vacated. Because we, sitting en
banc, essentially agree with the reasoning of the panel
majority’s opinion, we incorporate much of it verbatim in this
opinion.
in the case of a truly self-executing law because the 2014 Law
is not one.
14
III. Analysis4
A. The 2014 Law Violates PASPA
As a preliminary matter, we acknowledge the 2014
Law’s salutary purpose in attempting to legalize sports
gambling to revive its troubled casino and racetrack
industries. The New Jersey Assembly Gaming and Tourism
Committee chairman stated, in regard to the 2014 Law, that
“[w]e want to give the racetracks a shot in the arm. We want
to help Atlantic City. We want to do something for the
gaming business in the state of New Jersey, which has been
under tremendous duress . . . .” (App. 91.) New Jersey State
Senator Ray Lesniak, a sponsor of the law, has likewise stated
that “[s]ports betting will be a lifeline to the casinos, putting
people to work and generating economic activity in a growth
industry.” (App. 94.) And New Jersey State Senator Joseph
Kyrillos stated that “New Jersey’s continued prohibition on
sports betting at our casinos and racetracks is contrary to our
interest of supporting employers that provide tens of
thousands of jobs and add billions to our state’s economy”
and that “[s]ports betting will help set New Jersey’s wagering
facilities apart from the competition and strengthen
Monmouth Park and our struggling casino industry.” (App.
138.) PASPA has clearly stymied New Jersey’s attempts to
“We review a district court’s grant of summary
4
judgment de novo . . . .” Viera v. Life Ins. Co. of N. Am., 642
F.3d 407, 413 (3d Cir. 2011). “We review a district court’s
grant of a permanent injunction for abuse of discretion.”
Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 162 (3d Cir.
2011).
15
revive its casinos and racetracks and provide jobs for its
workforce.
Moreover, PASPA is not without its critics, even aside
from its economic impact. It has been criticized for
prohibiting an activity, i.e., sports gambling, that its critics
view as neither immoral nor dangerous. It has also been
criticized for encouraging the spread of illegal sports
gambling and for making it easier to fix games, since it
precludes the transparency that accompanies legal activities.
Simply put, “[w]e are cognizant that certain questions related
to this case—whether gambling on sporting events is harmful
to the games’ integrity and whether states should be permitted
to license and profit from the activity—engender strong
views.” Christie I, 730 F.3d at 215. While PASPA’s
provisions and its reach are controversial (and, some might
say, unwise), “we are not asked to judge the wisdom of
PASPA” and “[i]t is not our place to usurp Congress’ role
simply because PASPA may have become an unpopular law.”
Id. at 215, 241. We echo Christie I in noting that “New
Jersey and any other state that may wish to legalize gambling
on sports . . . are not left without redress. Just as PASPA
once gave New Jersey preferential treatment in the context of
gambling on sports, Congress may again choose to do so
or . . . may choose to undo PASPA altogether.” Id. at 240-41.
Unless that happens, however, we are duty-bound to interpret
the text of the law as Congress wrote it.
We now turn to the primary question before us:
whether the 2014 Law violates PASPA. We hold that it does.
Under PASPA, it shall be unlawful for “a governmental entity
to sponsor, operate, advertise, promote, license, or authorize
by law or compact” sports gambling. 28 U.S.C. § 3702(1).
16
We conclude that the 2014 Law violates PASPA because it
authorizes by law sports gambling.
First, the 2014 Law authorizes casinos and racetracks
to operate sports gambling while other laws prohibit sports
gambling by all other entities. Without the 2014 Law, the
sports gambling prohibitions would apply to casinos and
racetracks. Appellants urge that the 2014 Law does not
provide authority for sports gambling because we previously
held that “[t]he right to do that which is not prohibited derives
not from the authority of the state but from the inherent rights
of the people” and that “[w]e do not see how having no law in
place governing sports wagering is the same as authorizing it
by law.” Christie I, 730 F.3d at 232. But this is not a
situation where there are no laws governing sports gambling
in New Jersey. Absent the 2014 Law, New Jersey’s myriad
laws prohibiting sports gambling would apply to the casinos
and racetracks. Thus, the 2014 Law provides the
authorization for conduct that is otherwise clearly and
completely legally prohibited.
Second, the 2014 Law authorizes sports gambling by
selectively dictating where sports gambling may occur, who
may place bets in such gambling, and which athletic contests
are permissible subjects for such gambling. Under the 2014
Law, New Jersey’s sports gambling prohibitions are
specifically removed from casinos, gambling houses, and
horse racetracks as long as the bettors are people age 21 or
over, and as long as there are no bets on either New Jersey
college teams or collegiate competitions occurring in New
Jersey. The word “authorize” means, inter alia, “[t]o
empower; to give a right or authority to act,” or “[t]o permit a
thing to be done in the future.” Black’s Law Dictionary 133
17
(6th ed. 1990).5 The 2014 Law allows casinos and racetracks
and their patrons to engage, under enumerated circumstances,
in conduct that other businesses and their patrons cannot do.
That selectiveness constitutes specific permission and
empowerment.
Appellants urge that because the 2014 Law is only a
“repeal” removing prohibitions against sports gambling, it is
not an “affirmative authorization” under Christie I. To the
extent that in Christie I we took the position that a repeal
cannot constitute an authorization, we now reject that
reasoning. Moreover, we do not adopt the District Court’s
view that the options available to a state are limited to two.
Neither of these propositions were necessary to their
respective rulings and were, in essence, dicta. Furthermore,
our discussion of partial versus total repeals is similarly
unnecessary to determining the 2014 Law’s legality because
the question presented here is straightforward—i.e., what
does the law do—and does not turn on the way in which the
state has enacted its directive.
The presence of the word “repeal” does not prevent us
from examining what the provision actually does, and the
Legislature’s use of the term does not change that the 2014
Law selectively grants permission to certain entities to engage
in sports gambling. New Jersey’s sports gambling
prohibitions remain, and no one may engage in such conduct
except those singled out in the 2014 Law. While artfully
couched in terms of a repealer, the 2014 Law essentially
5
We cite the version of Black’s Law Dictionary that
was current in 1992, the year PASPA was passed.
18
provides that, notwithstanding any other prohibition by law,
casinos and racetracks shall hereafter be permitted to have
sports gambling. This is an authorization.
Third, the exception in PASPA for New Jersey, which
the State did not take advantage of before the one-year time
limit expired, is remarkably similar to the 2014 Law. The
exception states that PASPA does not apply to “a betting,
gambling, or wagering scheme . . . conducted exclusively in
casinos . . . , but only to the extent that . . . any commercial
casino gaming scheme was in operation . . . throughout the
10-year period” before PASPA was enacted. 28 U.S.C.
§ 3704(a)(3)(B). The exception would have permitted sports
gambling at New Jersey’s casinos, which is just what the
2014 Law does. We can easily infer that, by explicitly
excepting a scheme of sports gambling in New Jersey’s
casinos from PASPA’s prohibitions, Congress intended that
such a scheme would violate PASPA. If Congress had not
perceived that sports gambling in New Jersey’s casinos would
violate PASPA, then it would not have needed to insert the
New Jersey exception. In other words, if sports gambling in
New Jersey’s casinos does not violate PASPA, then PASPA’s
one-year exception for New Jersey would have been
superfluous. We will not read statutory provisions to be
surplusage. See Marx v. Gen. Revenue Corp., 133 S. Ct.
1166, 1178 (2013) (“[T]he canon against surplusage is
strongest when an interpretation would render superfluous
another part of the same statutory scheme.”). In order to
avoid rendering the New Jersey exception surplusage, we
19
must read the 2014 Law as authorizing a scheme that clearly
violates PASPA.6
As support for their argument that the 2014 Law does
not violate PASPA, Appellants cite the 2014 Law’s
construction provision, which provides that “[t]he provisions
of this act . . . are not intended and shall not be construed as
causing the State to sponsor, operate, advertise, promote,
license, or authorize by law or compact” sports wagering.
N.J. Stat. Ann. § 5:12A-8. This conveniently mirrors
PASPA’s language providing that states may not “sponsor,
operate, advertise, promote, license, or authorize by law or
compact” sports wagering. 28 U.S.C. § 3702(1).
The construction provision does not save the 2014
Law. States may not use clever drafting or mandatory
construction provisions to escape the supremacy of federal
law. Cf. Haywood v. Drown, 556 U.S. 729, 742 (2009)
(“[T]he Supremacy Clause cannot be evaded by formalism.”);
Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 382-83 (1990)
(“[t]he force of the Supremacy Clause is not so weak that it
can be evaded by mere mention of” a particular word). In the
same vein, the New Jersey Legislature cannot use a targeted
construction provision to limit the reach of PASPA or to
dictate to a court a construction that would limit that reach.
6
Granted, the 2014 Law applies to horse racetracks as
well as casinos, while the PASPA exception for New Jersey
refers only to casinos, but that does not change the
significance of the New Jersey exception because it refers to
gambling in places that already allow gambling, and the
racetracks fall within that rubric.
20
The 2014 Law violates PASPA, and the construction
provision cannot alter that fact.
Appellants also draw a comparison between the 2014
Law and the 2012 Law, which involved a broad regulatory
scheme, as evidence that the 2014 Law does not violate
PASPA. It is true that the 2014 Law does not set forth a
comprehensive scheme or provide for a state regulatory role,
as the 2012 Law did. However, PASPA does not limit its
reach to active state involvement or extensive regulation of
sports gambling. It prohibits a range of state activity, the
least intrusive of which is “authorization” by law of sports
gambling.
We conclude that the 2014 Law violates PASPA
because it authorizes by law sports gambling.7
7
Because we conclude that the 2014 Law authorizes
by law sports gambling, we need not address the argument
made by Appellees and Amicus that the 2014 Law also
licenses sports gambling by permitting only those entities that
already have gambling licenses or recently had such licenses
to conduct sports gambling operations. We also reject the
argument of the State Legislators and the NJTHA that, to the
extent that any aspect of the 2014 Law violates PASPA, we
should apply the 2014 Law’s severability clause. Citing the
broadly-worded severability provision of N.J. Stat. Ann. §
5:12A-9, they argue that the District Court should have saved
the 2014 Law by severing the most objectionable parts. For
example, the NJTHA urges that, “if the Court . . . concludes
that a state decision to prohibit persons under 21 from making
sports bets is [an] authorization by law for that activity by
persons over 21, the age limitation could be severed, leaving
21
it to the sports gambling operators . . . to impose a reasonable
age limit.” NJTHA’s Reply Br. at 23. It also argues that, “if
the Court concludes that a state decision to prohibit . . . sports
betting on some games is [an] authorization by law as to
betting on all other games, this limitation could be severed,”
and that “the Court can sever the Law’s provision dealing
with casinos from its provision dealing with racetracks.” Id.
at 24. Lifting the age limitation, permitting betting on New
Jersey schools’ games, or limiting the authorization to an
even narrower category of venues, however, would not alter
our conclusion that the 2014 Law authorizes by law sports
betting. “The standard for determining the severability of an
unconstitutional provision is well established: Unless it is
evident that the Legislature would not have enacted those
provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left is
fully operative as a law.” Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684 (1987) (internal quotation marks omitted).
Because New Jersey’s legislature, in both the 2012 Law and
the 2014 Law, was loath to permit sports betting outside of
gambling establishments, we cannot reasonably say that it
would have enacted a repeal of its gambling laws without the
age restriction, without the restriction on gambling on New
Jersey-based college sports, and without the geographic
restriction to casinos and racetracks. We thus need not
speculate about other possible forms that severance might
take.
22
B. PASPA Does Not Impermissibly Commandeer the
States
Appellants expend significant effort in this appeal
revisiting our conclusion in Christie I that PASPA does not
unconstitutionally commandeer the states. They root this
effort in the District Court’s erroneous conclusion that
PASPA presents states with a binary choice—either maintain
a complete prohibition on sports wagering or wholly repeal
state prohibitions. In Christie I, we engaged in a lengthy
discussion to rebut Appellants’ assertion that if we conclude
that New Jersey’s repeal of its prohibition is not permitted by
PASPA, then it has unconstitutionally commandeered New
Jersey. In so doing, we discussed the Supreme Court’s clear
case law on commandeering. Our prior conclusion that
PASPA does not run afoul of anti-commandeering principles
remains sound despite Appellants’ attempt to call it into
question using the 2014 Law as an exemplar.
1. Anti-Commandeering Jurisprudence
As we noted in Christie I, the Supreme Court’s anti-
commandeering principle rests on the conclusion that
“Congress ‘lacks the power directly to compel the States to
require or prohibit’ acts which Congress itself may require or
prohibit.” Christie I, 730 F.3d at 227 (quoting New York v.
United States, 505 U.S. 144, 166 (1992)). In our prior survey
of the anti-commandeering case law in Christie I, we grouped
four commandeering cases upholding the federal laws at issue
into two categories: (1) permissible regulation in a pre-
emptible field, Hodel v. Virginia Surface Min. & Reclamation
Ass’n, Inc., 452 U.S. 264 (1981), and F.E.R.C. v. Mississippi,
456 U.S. 742 (1982); and (2) prohibitions on state action,
23
South Carolina v. Baker, 485 U.S. 505 (1988) and Reno v.
Condon, 528 U.S. 141 (2000). The Supreme Court has struck
down federal laws on anti-commandeering grounds in only
two cases, New York v. United States and Printz v. United
States, 521 U.S. 898 (1997). We summarize our prior review
below.
First, congressional action in passing laws in
otherwise pre-emptible fields has withstood attack in cases
where the states were not compelled to enact laws or
implement federal statutes or regulatory programs
themselves. In Hodel, the Supreme Court upheld the
constitutionality of a law that imposed federal standards for
coal mining. The law left states a choice. A state could
“assume permanent regulatory authority over . . . surface coal
mining operations” and “submit a proposed permanent
program” that “demonstrate[s] that the state legislature has
enacted laws implementing the environmental protection
standards . . . and that the State has the administrative and
technical ability to enforce the[] standards.” Hodel, 452 U.S.
at 271. However, if a state chose not to assume regulatory
authority, the federal government would “administer[] the Act
within that State and continue[] as such unless and until a
‘state program’ [wa]s approved.” Id. at 272. As we
described in Christie I:
The Supreme Court upheld the provisions,
noting that they neither compelled the states to
adopt the federal standards, nor required them
“to expend any state funds,” nor coerced them
into “participat[ing] in the federal regulatory
program in any manner whatsoever.” [Hodel,
452 U.S.] at 288. The Court further concluded
24
that Congress could have chosen to completely
preempt the field by simply assuming oversight
of the regulations itself. Id. It thus held that the
Tenth Amendment posed no obstacle to a
system by which Congress “chose to allow the
States a regulatory role.” Id. at 290. As the
Court later characterized Hodel, the scheme
there did not violate the anti-commandeering
principle because it “merely made compliance
with federal standards a precondition to
continued state regulation in an otherwise pre-
empted field.” Printz v. United States, 521 U.S.
898, 926 (1997).
Christie I, 730 F.3d at 227–28. The Supreme Court’s opinion
in F.E.R.C. v. Mississippi the following year confirmed its
view that a law does not unconstitutionally commandeer the
states when the law does not impose federal requirements on
the states, but leaves states the choice to decline to implement
federal standards. 456 U.S. 742, 767–68 (upholding a
provision that required state utility companies to expend state
resources to “consider” enacting federal standards, but did not
require states to enact those standards).
Second, the Supreme Court has found Congress’s
prohibition of certain state actions to not constitute
unconstitutional commandeering. In South Carolina v.
Baker, the Court upheld federal laws that prohibited the
issuance of bearer bonds, which required states to amend
legislation to be in compliance. 485 U.S. at 511, 514 (1988).
As we characterized this case in Christie I:
25
The Court concluded this result did not run
afoul [of] the Tenth Amendment because it did
not seek to control or influence the manner in
which States regulate private parties but was
simply an inevitable consequence of regulating
a state activity. In subsequent cases, the Court
explained that the regulation in Baker was
permissible because it simply subjected a State
to the same legislation applicable to private
parties.
Christie I, 730 F.3d at 228 (internal quotation marks and
citations omitted). Later, in Reno v. Condon, the Court
upheld the constitutionality of a law that prohibited states
from releasing information gathered by state departments of
motor vehicles. The Court ultimately concluded that the law
at issue “d[id] not require the States in their sovereign
capacity to regulate their own citizens[,] . . . d[id] not require
the [State] Legislature[s] to enact any laws or regulations, and
it d[id] not require state officials to assist in the enforcement
of federal statutes regulating private individuals.” Reno, 528
U.S. at 151 (as altered in Christie I, 730 F.3d at 228).
As noted above, the Supreme Court has invalidated
laws on anti-commandeering grounds on only two occasions.
In New York, the Supreme Court struck down a “take-title”
provision whereby states were required to take title to
radioactive waste by a specific date, at the waste generator’s
request, if they did not adopt a federal program. As we stated
in Christie I, the provision “compel[led] the states to either
enact a regulatory program, or expend resources in taking title
to the waste.” Christie I, 730 F.3d at 229. The Supreme
Court ultimately concluded in New York that the take-title
26
provision “crossed the line distinguishing encouragement
from coercion.” 505 U.S. at 175. Similarly in Printz v.
United States, the Supreme Court concluded that Congress
“may neither issue directives requiring the States to address
particular problems, nor command the States’ officers . . . to
administer or enforce a federal regulatory program.” 521
U.S. at 935 (finding a federal law requiring state officers to
conduct background checks on prospective gun owners to
commandeer the states in violation of the Tenth Amendment).
2. PASPA Does Not Violate Anti-Commandeering
Principles
We continue to view PASPA’s prohibition as more
akin to those laws upheld in Hodel, F.E.R.C., Baker, and
Reno, and distinguishable from those struck down by the
Supreme Court in New York and Printz. Our articulation of
the way in which PASPA does not violate anti-
commandeering principles warrants refinement, however,
given the way in which the 2014 Law attempted to skirt
PASPA and the thrust of Appellants’ arguments in this
appeal.
In an attempt to reopen the anti-commandeering
question we previously decided, Appellants creatively rely on
certain language that was used in Christie I. In pressing for a
declaration that PASPA unconstitutionally commandeered the
states in Christie I, Appellants characterized PASPA as
requiring the states to affirmatively keep a prohibition against
sports wagering on their books, lest they be found to have
authorized sports gambling by law by repealing the
prohibition. In response, we opined that Appellants’ position
“rest[ed] on a false equivalence between repeal and
27
authorization,” implying that a repeal is not an authorization.
730 F.3d at 233. Before us now Appellants urge that “[t]his
Court held [in Christie I] that PASPA is constitutional
precisely because it permits States to elect not to prohibit
sports wagering, even if affirmatively authorizing it would be
unlawful.” Appellants’ Br. 22 (emphasis in original).
Appellants are saying, in effect, “We told you so”—if the
legislature cannot repeal New Jersey’s prohibition as it
attempted to do in the 2014 Law, then it is required to
affirmatively keep the prohibition on the books, and PASPA
unconstitutionally commandeers the states. We reject this
argument.
That said, we view our discussion in Christie I
regarding the relationship between a “repeal” and an
“authorization” to have been too facile. While we considered
whether repeal and authorization are interchangeable, our
decision did not rest on that discussion. Today, we choose to
excise that discussion from our prior opinion as unnecessary
dicta. To be clear, a state’s decision to selectively remove a
prohibition on sports wagering in a manner that permissively
channels wagering activity to particular locations or operators
is, in essence, “authorization” under PASPA. However, our
determination that such a selective repeal of certain
prohibitions amounts to authorization under PASPA does not
mean that states are not afforded sufficient room under
PASPA to craft their own policies.
Appellants urge that our conclusion in Christie I that
PASPA does not unconstitutionally commandeer the states
rested on our view that PASPA allows states to “choos[e]
among many different potential policies on sports wagering
that do not include licensing or affirmative authorization by
28
the State.” Appellants’ Br. 29. This is correct. PASPA does
not command states to take affirmative actions, and it does
not present a coercive binary choice. Our reasoning in
Christie I that PASPA does not commandeer the states
remains unshaken.
Appellants characterize the 2014 Law as a lawful
exercise in the space PASPA affords states to create their own
policy. They argue that without options beyond a complete
repeal or a complete ban on sports wagering, such as the
partial repeal New Jersey pursued, PASPA runs afoul of anti-
commandeering principles. This argument sweeps too
broadly. That a specific partial repeal which New Jersey
chose to pursue in its 2014 Law is not valid under PASPA
does not preclude the possibility that other options may pass
muster. The issue of the extent to which a given repeal would
constitute an authorization, in a vacuum, is not before us, as it
was not specifically before us in Christie I. However, as the
Leagues noted at oral argument before the en banc court, not
all partial repeals are created equal. For instance, a state’s
partial repeal of a sports wagering ban to allow de minimis
wagers between friends and family would not have nearly the
type of authorizing effect that we find in the 2014 Law. We
need not, however, articulate a line whereby a partial repeal
of a sports wagering ban amounts to an authorization under
PASPA, if indeed such a line could be drawn. It is sufficient
to conclude that the 2014 Law overstepped it.
Appellants seize on the District Court’s erroneous
interpretation of Christie I’s anti-commandeering analysis—
namely, that PASPA presents states with a strict binary
choice between total repeal and keeping a complete ban on
their books—to once again urge that if PASPA commands
29
such a choice, then it is comparable to the challenged law in
New York. First, unlike the take-title provision included in
the statute at issue in New York, PASPA’s text does not
present states with a coercive choice to adopt a federal
program. To interpret PASPA to require such a coercive
choice is to read something into the statute that simply is not
there.
Second, PASPA is further distinguishable from the law
at issue in New York because it does not require states to take
any action. In New York, the Supreme Court held that a
federal law that required states to enact a federal regulatory
program or take title to radioactive waste at the behest of
generators “crossed the line distinguishing encouragement
from coercion.” 505 U.S. at 175. Unlike the law at issue in
New York, PASPA includes no coercive direction by the
federal government. As we previously concluded in Christie
I, PASPA does not command states to take any affirmative
steps:
PASPA does not require or coerce the states to
lift a finger—they are not required to pass laws,
to take title to anything, to conduct background
checks, to expend any funds, or to in any way
enforce federal law. They are not even
required, like the states were in F.E.R.C., to
expend resources considering federal regulatory
regimes, let alone to adopt them. Simply put,
we discern in PASPA no directives requiring
the States to address particular problems and no
commands to the States’ officers to administer
or enforce a federal regulatory program.
30
730 F.3d at 231 (internal quotation marks and alterations
omitted) (emphasis in original). Put simply, PASPA does not
impose a coercive either-or requirement or affirmative
command.
We will not allow Appellants to bootstrap already
decided questions of PASPA’s constitutionality onto our
determination that the 2014 Law violates PASPA. We reject
the notion that PASPA presents states with a coercive binary
choice or affirmative command and conclude, as we did in
Christie I, that it does not unconstitutionally commandeer the
states.
IV. Conclusion
The 2014 Law violates PASPA because it authorizes
by law sports gambling. We continue to find PASPA
constitutional. We will affirm.
31
FUENTES, Circuit Judge, dissenting:
In November 2011, the question of whether to allow
sports betting in New Jersey went before the electorate. By a
2-1 margin, New Jersey voters passed a referendum to amend
the New Jersey Constitution to allow the New Jersey
Legislature to “authorize by law” sports betting.1
Accordingly, the Legislature enacted the 2012 Sports
Wagering Act (“2012 Law”). The Sports Leagues challenged
this Law, claiming that it violated the Professional and
Amateur Sports Protection Act’s (“PASPA”) prohibition on
states “authoriz[ing] by law” sports betting.2 In Christie I, we
agreed with the Sports Leagues and held that the 2012 Law
violated and thus was preempted by PASPA. We explained,
however, that New Jersey was free to repeal the sports betting
prohibitions it already had in place. We rejected the
argument that a repeal of prohibitions on sports betting was
equivalent to authorizing by law sports betting. When the
matter was brought to the Supreme Court, the Solicitor
General echoed that same sentiment, stating that, “PASPA
does not even obligate New Jersey to leave in place the state-
law prohibitions 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
part.”3
1
N.J. Const. art. IV, § 7, ¶ 2(D).
2
See 28 U.S.C. § 3702(1).
3
Br. for the United States in Opp’n at 11, Christie v. Nat’l
Collegiate Athletic Ass’n, Nos. 13-967, 13-979, and 13-980
(U.S. May 14, 2014).
1
So New Jersey did just that. In 2014, the New Jersey
Legislature repealed certain sports betting prohibitions at
casinos and gambling houses in Atlantic City and at horse
racetracks in the State (“2014 Repeal”). In addition to
repealing the 2012 Law in full, the 2014 Repeal stripped New
Jersey of any involvement in sports betting, regulatory or
otherwise. In essence, the 2014 Repeal rendered previous
prohibitions on sports betting non-existent.
But the majority today concludes that the New Jersey
Legislature’s efforts to satisfy its constituents while adhering
to our decision in Christie I are still in violation of PASPA.
According to the majority, the “selective” nature of the 2014
Repeal amounts to “authorizing by law” a sports wagering
scheme. That is, because the State retained certain
restrictions on sports betting, the majority infers the
authorization by law. I cannot agree with this interpretation
of PASPA.
PASPA restricts the states in six ways – a state cannot
“sponsor, operate, advertise, promote, license, or authorize by
law or compact” sports betting.4 The only one of these six
restrictions that includes “by law” is “authorize.” None of the
other restrictions say anything about how the states are
restricted. Thus, I believe that Congress gave this restriction
a special meaning—that a state’s “authoriz[ation] by law” of
sports betting cannot merely be inferred, but rather requires a
specific legislative enactment that affirmatively allows the
people of the state to bet on sports. Any other interpretation
would be reading the phrase “by law” out of the statute.
4
28 U.S.C. § 3702(1) (emphasis added).
2
Indeed, we stated exactly this in Christie I—that all
PASPA prohibits is “the affirmative ‘authoriz[ation] by law’
of gambling schemes.”5 Thus, we explained, nothing
prevented New Jersey from repealing its sports betting
prohibitions, since, “in reality, the lack of an affirmative
prohibition of an activity does not mean it is affirmatively
authorized by law.”6 As we noted, “that the Legislature
needed to enact the [2012 Law] itself belies any contention
that the mere repeal of New Jersey’s ban on sports gambling
was sufficient to ‘authorize [it] by law.’”7 The Legislature
itself “saw a meaningful distinction between repealing the
ban on sports wagering and authorizing it by law,
undermining any contention that the amendment alone was
sufficient to affirmatively authorize sports wagering—the
[2012 Law] was required.”8 In short, we explained that there
was a false equivalence between repeal and authorization.
With the 2014 Repeal, the New Jersey Legislature did
what it thought it was permitted to do under our reading of
PASPA in Christie I. The majority, however, maintains that
the 2014 Repeal “authorizes” sports wagering at casinos,
gambling houses, and horse racetracks simply because other
sports betting prohibitions remain in place.9 According to the
5
Christie I, 730 F.3d at 232 (alteration in original).
6
Id.
7
Id. (alteration in original).
8
Id.
9
I refer to the repeal of prohibitions as applying to casinos,
gambling houses, and horse racetracks, with the
understanding that the repeal applies to casinos and gambling
houses in Atlantic City and horse racetracks in New Jersey
3
majority, “[a]bsent the 2014 Law, New Jersey’s myriad laws
prohibiting sports gambling would apply to the casinos and
racetracks,” and thus “the 2014 Law provides the
authorization for conduct that is otherwise clearly and
completely legally prohibited.”10 But I believe the majority is
mistaken as to the impact of a partial repeal.
A repeal is defined as an “abrogation of an existing
law by legislative act.”11 When a statute is repealed, “the
repealed statute, in regard to its operative effect, is considered
as if it had never existed.”12 If a repealed statute is treated as
if it never existed, a partially repealed statute is treated as if
the repealed sections never existed.13 The 2014 Repeal, then,
simply returns New Jersey to the state it was in before it first
for those over 21 not betting on New Jersey collegiate teams
or any collegiate competition occurring in New Jersey.
10
Maj. Op. 17.
11
Black’s Law Dictionary 1325 (8th ed. 2007).
12
73 Am. Jur. 2d Statutes § 264.
13
See, e.g., Ex parte McCardle, 74 U.S. 506, 514 (1868)
(“[W]hen an act of the legislature is repealed, it must be
considered . . . as if it never existed.”); Anderson v. USAir,
Inc., 818 F.2d 49, 55 (D.C. Cir. 1987) (“Common sense
dictates that repeal means a deletion. This court would
engage in pure speculation were it to hold otherwise.”); Kemp
by Wright v. State, Cty. of Burlington, 687 A.2d 715, 723
(N.J. 1997) (“In this State it is the general rule that where a
statute is repealed and there is no saving[s] clause or a general
statute limiting the effect of the repeal, the repealed statute, in
regard to its operative effect, is considered as though it had
never existed, except as to matters and transactions passed
and closed.”).
4
enacted those prohibitions on sports gambling. In other
words, after the repeal, it is as if New Jersey never prohibited
sports wagering at casinos, gambling houses, and horse
racetracks. Therefore, with respect to those locations, there
are no laws governing sports wagering. Contrary to the
majority’s position, the permission to engage in such an
activity is not affirmatively granted by virtue of it being
prohibited elsewhere.
To bolster its position, the majority rejects our
reasoning in Christie I, stating that “[t]o the extent that in
Christie I we took the position that a repeal cannot constitute
an authorization, we now reject that reasoning.”14 I continue
to maintain, however, that the 2014 Repeal is not an
affirmative authorization by law. It is merely a repeal – it
does not, and cannot, authorize by law anything.
In my view, the majority’s position that the 2014
Repeal “selectively grants permission to certain entities to
engage in sports gambling”15 is simply incorrect. There is no
explicit grant of permission in the 2014 Repeal for any person
or entity to engage in sports gambling. Rather, the 2014
Repeal is a self-executing deregulatory measure that repeals
existing prohibitions and regulations for sports betting and
requires the State to abdicate any control or involvement in
sports betting.16 The majority fails to explain why a partial
14
Maj. Op. 18.
15
Id.
16
For example, under the 2014 Repeal, “[the Division of
Gaming Enforcement (“DGE”)] now considers sports
wagering to be ‘non-gambling activity’ . . . that is beyond
5
repeal is equivalent to a grant of permission (by law) to
engage in sports betting.
Suppose the State did exactly what the majority
suggests it could have done: repeal completely its sports
betting prohibitions. In that circumstance, sports betting
could occur anywhere in the State and there would be no
restrictions as to age, location, or whether a bettor could
wager on games involving local teams. Would the State
violate PASPA if it later enacted limited restrictions
regarding age requirements and places where wagering could
occur? Surely no conceivable reading of PASPA would
preclude a state from restricting sports wagering in this
scenario. Yet the 2014 Repeal comes to the same result.
The majority also fails to illustrate how the 2014
Repeal results in sports wagering pursuant to state law when
there is effectively no law in place as to several locations, no
scheme created, and no state involvement. A careful
comparison with the 2012 Law is instructive. The 2012 Law
lifted New Jersey’s ban on sports wagering and created a
licensing scheme for sports wagering pools at casinos and
racetracks in the State. This comprehensive regime required
close State supervision and regulation of those sports
wagering pools. For instance, the 2012 Law required any
entity that wished to operate a “sports pool lounge” to acquire
a “sports pool license.” To do so, a prospective operator was
required to pay a $50,000 application fee, secure Division of
Gaming Enforcement (“DGE”) approval of all internal
controls, and ensure that any of its employees who were to be
DGE’s control and outside of DGE’s regulatory authority.”
App. 416.
6
directly involved in sports wagering obtained individual
licenses from the DGE and the Casino Control Commission
(“CCC”). In addition, the betting regime required entities to,
among other things, submit extensive documentation to the
DGE, adopt new “house” rules subject to DGE approval, and
conform to DGE standards. This, of course, violated PASPA
in the most basic way: New Jersey developed an intricate
scheme that both “authorize[d] by law” and “license[d]”
sports gambling. The 2014 Repeal eliminated this entire
scheme. Moreover, all state agencies with jurisdiction over
state casinos and racetracks, such as the DGE and the CCC,
were stripped of any sports betting oversight.
The majority likewise falters when it analogizes the
2014 Repeal to the exception Congress originally offered to
New Jersey in 1992. The exception stated that PASPA did
not apply to “a betting, gambling, or wagering scheme . . .
conducted exclusively in casinos[,] . . . but only to the extent
that . . . any commercial casino gaming scheme was in
operation . . . throughout the 10-year period” before PASPA
was enacted.17 Setting aside the most obvious distinction
between the 2014 Repeal and the 1992 exception—that it
contemplated a scheme that the 2014 Repeal does not
authorize—the majority misses the mark when it states: “If
Congress had not perceived that sports gambling in New
Jersey’s casinos would violate PASPA, then it would not
have needed to insert the New Jersey exception.”18 Congress
did not, however, perceive, or intend for, private sports
wagering in casinos to violate PASPA. Instead, Congress
prohibited sports wagering undertaken pursuant to state law.
17
28 U.S.C. § 3704(a)(3)(B).
18
Maj. Op. 19.
7
That the 2014 Repeal might bring about an increase in the
amount of private, legal sports wagering in New Jersey is of
no moment, and the majority’s reliance on such a possibility
is misplaced. The majority is also wrong in a more
fundamental way. The exception Congress offered to New
Jersey was exactly that: an exception to the ordinary
prohibitions of PASPA. That is to say, with this exception,
New Jersey could have “sponsor[ed], operate[d], advertise[d],
promote[d], license[d], or authorize[d] by law or compact”
sports wagering. Under the 2014 Repeal, of course, New
Jersey cannot and does not aim to do any of these things.
Because I do not see how a partial repeal of
prohibitions is tantamount to authorizing by law a sports
wagering scheme in violation of PASPA, I respectfully
dissent.
8
NCAA v. Governor of the State of New Jersey, et al., Nos.
14-4546, 14-4568, 14-4659
VANASKIE, Circuit Judge, dissenting.
While 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.” New York v. United States, 505 U.S.
144, 166 (1992) (emphasis added). Concluding that the
Professional and Amateur Sports Protection Act (“PASPA”),
28 U.S.C. § 3701 et seq., was a congressional command that
States must prohibit wagering on sporting events because it
forbids the States from “authoriz[ing] by law” such activity, I
dissented from the holding in Christie I that PASPA was a
valid exercise of congressional authority. National Collegiate
Athletic Ass’n v. Governor of New Jersey (Christie I), 730
F.3d 208, 241–51 (3d Cir. 2013) (Vanaskie, J., dissenting).
My colleagues in the majority in Christie I disagreed with my
conclusion because they believed that States had the option of
repealing existing bans on sports betting. Id. at 232. In
upholding PASPA, Christie I rejected New Jersey’s argument
that a repeal of its ban on sports betting would be viewed as
effectively “authoriz[ing] by law” this activity. Christie I
declared that New Jersey’s “attempt to read into PASPA a
requirement that the states must affirmatively keep a ban on
sports gambling in their books rests on a false equivalence
between repeal and authorization.” Id. at 233. I viewed that
“false equivalence” assertion with considerable skepticism.
Id. at 247 n. 5 (“[I]t certainly is open to debate whether a
state’s repeal of a ban on sports gambling would be akin to
that state’s ‘authorizing’ gambling on sporting events . . . .”).
My skepticism is validated by today’s majority opinion. The
majority dodges the inevitable conclusion that PASPA
1
conscripts the States to prohibit wagering on sports by
suggesting that some partial repeal of the ban on sports
gambling would not be tantamount to authorization of
gambling.
Implicit in today’s majority opinion and Christie I is
the premise that Congress lacks the authority to decree that
States must prohibit sports wagering, and so both majorities
find some undefined room for States to enact partial repeals
of existing bans on sports gambling. While the author of
Christie I finds that New Jersey’s partial repeal at issue here
is not the equivalent of authorizing by law wagering on
sporting events, today’s majority concludes otherwise. This
shifting line approach to a State’s exercise of its sovereign
authority is untenable. The bedrock principle of federalism
that Congress may not compel the States to require or prohibit
certain activities cannot be evaded by the false assertion that
PASPA affords the States some undefined options when it
comes to sports wagering. Because I believe that PASPA was
intended to compel the States to prohibit wagering on
sporting events, it cannot survive constitutional scrutiny.
Accordingly, as I did in Christie I, I dissent.
I.
According to the majority, “a state’s decision to
selectively remove a prohibition on sports wagering in a
manner that permissively channels wagering activity to
particular locations or operators is, in essence, ‘authorization’
under PASPA.” Maj. Op., at 28. The majority also claims “a
state’s partial repeal of a sports wagering ban to allow de
minimis wagers between friends and family would not have
nearly the type of authorizing effect that we find in the 2014
Law.” Id. at 29. Thus, according to the majority, the 2014
2
Law is a partial repeal that is foreclosed by PASPA, but
“other options may pass muster” because “not all partial
repeals are created equal.” Id.
Noticeably, the majority does not explain why all
partial repeals are not created equal or explain what
distinguishes the 2014 Law from those partial repeals that
pass muster. To further complicate matters, the majority
continues to rely on Christie I, which did “not read PASPA to
prohibit New Jersey from repealing its ban on sports
wagering” and informed New Jersey that “[n]othing in
[PASPA’s] words requires that the states keep any law in
place.” 730 F.3d at 232.
A.
Christie I “[r]ecogniz[ed] the importance of the
affirmative/negative command distinction,” and “agree[d]
with [New Jersey] that the affirmative act requirement, if not
properly applied, may permit Congress to ‘accomplish
exactly what the commandeering doctrine prohibits’ by
stopping the states from ‘repealing an existing law.’” 730
F.3d at 232 (quoting Conant v. Walters, 309 F.3d 629, 646
(9th Cir. 2002) (Kozinski, J., concurring)). Christie I,
however, discounted concerns regarding PASPA’s
affirmative act requirement because Christie I “d[id] not read
PASPA to prohibit New Jersey from repealing its ban on
sports wagering.” Id. According to Christie I, PASPA is
constitutional because “[n]othing in [PASPA’s] words
requires that the states keep any law in place.” Id. This
conclusion formed the premise for the conclusion in Christie I
that PASPA passed constitutional muster.
3
Remarkably, the majority chooses to “excise that
discussion from our prior opinion as unnecessary dicta.” Maj.
Op., at 28. This cannot be the case, however, because that
discussion was the cornerstone of the holding in Christie I.
See In re McDonald, 205 F.3d 606, 612 (3d Cir. 2000)
(“Chief Judge Posner has aptly defined dictum as ‘a statement
in a judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the
holding—that, being peripheral, may not have received the
full and careful consideration of the court that uttered it.’”
(quoting Sarnoff v. Am. Home Prods. Corp., 798 F.2d 1075,
1084 (7th Cir. 1986))).
Indeed, to rationalize its conclusion in Christie I, the
Christie I majority had to expressly reject the notion that
when a state “choose[s] to repeal an affirmative prohibition of
sports gambling, that is the same as ‘authorizing’ that activity,
and therefore PASPA precludes repealing prohibitions on
gambling just as it bars affirmatively licensing it.” 730 F.3d
at 232. This aspect of Christie I was not peripheral to the
ultimate holding because Christie I specifically “agree[d]
with [New Jersey] that the affirmative act requirement, if not
properly applied, may permit Congress to ‘accomplish
exactly what the commandeering doctrine prohibits’ by
stopping the states from ‘repealing an existing law.’” Id.
(quoting Conant, 309 F.3d at 646 (Kozinski, J., concurring)).
Thus, to resolve the issue before it, Christie I necessarily had
to give this issue the “full and careful consideration of the
court.” In re McDonald, 205 F.3d at 612 (quoting Sarnoff,
798 F.2d at 1084).
In giving the issue its full and careful consideration,
Christie I explained that the notion that a “repeal” could be
the same as an “authorization” was “problematic in numerous
4
respects.” 730 F.3d at 232; see also id. (“Most basically, it
ignores that PASPA speaks only of ‘authorizing by law’ a
sports gambling scheme.”). Christie I did “not see how
having no law in place governing sports wagering is the same
as authorizing it by law.” Id. Christie I recognized a
distinction between affirmative commands for actions and
prohibitions, and explained that there was “a false
equivalence between repeal and authorization.” Id. at 233.
Thus, as a matter of statutory construction, and to avoid “a
series of constitutional problems,” Christie I specifically held
that if the Court did not distinguish between “repeals”
(affirmative commands) and “authorizations” (affirmative
prohibitions), the Court would “read[] the term ‘by law’ out
of [PASPA].” Id. at 233.
I dissented from that opinion because “any distinction
between a federal directive that commands states to take
affirmative action and one that prohibits states from
exercising their sovereignty is illusory.” 730 F.3d at 245
(Vanaskie, J., concurring in part and dissenting in part). The
decision to base Christie I on a distinction between
affirmative commands for action and affirmative prohibitions
was “untenable,” because “affirmative commands to engage
in certain conduct can be rephrased as a prohibition against
not engaging in that conduct.” Id. As I explained, basing
Christie I on such an illusory distinction raises constitutional
concerns because “[a]n interpretation of federalism principles
that permits congressional negative commands to state
governments will eviscerate the constitutional lines drawn”
by the Supreme Court. Id.
5
B.
After Christie I, a state like New Jersey at least had
the choice to either “repeal its sports wagering ban,” or, “[o]n
the other hand . . . keep a complete ban on sports gambling.”
Id. at 233 (majority opinion). The Christie I majority found
that this choice was not too coercive because it left “much
room for the states to make their own policy” and left it to a
State “to decide how much of a law enforcement priority it
wants to make of sports gambling, or what the exact contours
of the prohibition will be.” Id.
Today’s majority makes it clear that PASPA does not
leave a State “much room” at all. Indeed, it is evident that
States must leave gambling prohibitions on the books to
regulate their citizens. A review of the four Supreme Court
anti-commandeering cases referenced by the majority is
illuminating.
1.
The first two anti-commandeering cases that the
majority reviews are Hodel v. Virginia Surface Mining &
Reclamation Ass’n, Inc., 452 U.S. 264 (1981), and F.E.R.C. v.
Mississippi, 456 U.S. 742 (1982). As the majority points out,
these cases address “permissible regulation in a pre-emptible
field.” Maj. Op., at 23. In analyzing these cases, however,
the majority overlooks the main rule announced by the
Supreme Court in situations where there is an exercise of
legislative authority under the Commerce Clause or where
Congress preempts an area with federal legislation within its
legislative power. In such situations, States have a choice:
they may either comply with the federal legislation or the
Federal Government will carry the legislation into effect.
6
This rule was announced in Hodel, where the Supreme
Court explained that “[i]f a State does not wish to . . .
compl[y] with the Act and implementing regulations, the full
regulatory burden will be borne by the Federal Government.”
452 U.S. at 288 (emphasis added). The same theme repeated
itself in F.E.R.C., as the Supreme Court focused on “the
choice put to the States—that of either abandoning regulation
of the field altogether or considering the federal standards.”
456 U.S. at 766 (emphasis added). In both cases, the
Supreme Court was clear that there must be some choice for
the states to make because without it “the accountability of
both state and federal officials is diminished.” New York v.
United States, 505 U.S. 144, 168 (1992).
Indeed, in New York v. United States, the Court
explained that a State’s view on legislation “can always be
pre-empted under the Supremacy Clause if it is contrary to
the national view, but in such a case . . . it will be federal
officials that suffer the consequences if the decision turns out
to be detrimental or unpopular.” Id. at 168. The Supreme
Court reiterated this point Printz v. United States, explaining
that, “[b]y forcing state governments to absorb the financial
burden of implementing a federal regulatory program,
Members of Congress can take credit for ‘solving’ problems
without having to ask their constituents to pay for the
solutions with higher federal taxes.” 521 U.S. 898, 930
(1997). Thus, States must be given a choice because the
Supreme Court is concerned that “it may be state officials
who will bear the brunt of public disapproval, while the
federal officials who devised the regulatory program may
remain insulated from the electoral ramifications of their
decision.” New York, 505 U.S. at 169.
7
As the majority explains, while “PASPA’s provisions
and its reach are controversial (and, some might say, unwise)
. . . . we are duty-bound to interpret the text of the law as
Congress wrote it.” Maj. Op., at 16. Because the majority
has excised the distinction between a repeal and an
authorization, the majority makes it clear that under PASPA
as written, no repeal of any kind will evade the command that
no State “shall . . . authorize by law” sports gambling. 28
U.S.C. § 3702. In the face of such a congressional directive,
“no case-by-case weighing of the burdens or benefits is
necessary; such commands are fundamentally incompatible
with our constitutional system of dual sovereignty.” Printz,
521 U.S. at 935.
2.
This leads to the other two anti-commandeering cases
reviewed by the majority: South Carolina v. Baker, 485 U.S.
505 (1988), and Reno v. Condon, 528 U.S. 141 (2000). The
majority explains that these cases address permissible
“prohibitions on state action.” Maj. Op., at 23. Again,
however, the majority seems to overlook the animating factor
for each of these opinions. In both Baker and Reno the
Supreme Court explained that permissible prohibitions
regulated State activities. The Supreme Court has never
sanctioned statutes or regulations that sought to control or
influence the manner in which States regulate private parties.
For example, in Baker, the Supreme Court reviewed a
challenge to the Internal Revenue Code’s enactment of §
310(b)(1) of the Tax Equity and Fiscal Responsibility Act of
1982, which prohibited States from issuing unregistered
bearer bonds. Notably, when reviewing the case, the Court
specifically found that it did not need to address “the
8
possibility that the Tenth Amendment might set some limits
on Congress’ power to compel States to regulate on behalf of
federal interests” because the Court found that the
commandeering concerns “in FERC [were] inapplicable to §
310.” Baker, 485 U.S. at 513. Importantly, the Court
distinguished § 310 from the statute in F.E.R.C. because the
Court found that “Section 310 regulates state activities; it
does not, as did the statute in FERC, seek to control or
influence the manner in which States regulate private parties.”
Id. at 514. Similarly, in Reno, the Court addressed a statute
that did not require (1) “the States in their sovereign capacity
to regulate their own citizens,” (2) “the . . . Legislature to
enact any laws or regulations,” or (3) “state officials to assist
in the enforcement of federal statutes regulating private
individuals.” 528 U.S. at 151. It was only on these bases that
the Supreme Court found the statute at issue in Reno was
“consistent with the constitutional principles enunciated in
New York and Printz.” Id.
Unlike the statutes at issue in Baker and Reno,
however, PASPA seeks to control and influence the manner
in which States regulate private parties. Through PASPA,
Congress unambiguously commands that “[i]t shall be
unlawful for . . . a governmental entity to . . . authorize by
law” sports gambling. 28 U.S.C. § 3702. By issuing this
command, Congress has set an impermissible “mandatory
agenda to be considered in all events by state legislative or
administrative decisionmakers.” F.E.R.C., 456 U.S. at 769.
3.
The logical extension of the majority is that PASPA
prevents States from passing any laws to repeal existing
gambling laws. As the majority correctly notes, “[t]he word
9
‘authorize’ means, inter alia, ‘[t]o empower; to give a right or
authority to act,’ or ‘[t]o permit a thing to be done in the
future.’” Maj. Op., at 17 (quoting Black’s Law Dictionary
133 (6th Ed. 1990)) (footnote omitted). Because
authorization includes permitting a thing to be done, it
follows that PASPA also prevents state officials from
stopping enforcement of existing gambling laws. States must
regulate conduct prioritized by Congress. Cf. Conant, 309
F.3d at 646 (Kozinski, J., concurring) (“[P]reventing the state
from repealing an existing law is no different from forcing it
to pass a new one; in either case, the state is being forced to
regulate conduct that it prefers to leave unregulated.”).
It is true that civil actions to enjoin a violation of
PASPA “may be commenced in an appropriate district court
of the United States by the Attorney General of the United
States.” 28 U.S.C. § 3703. But it can hardly be said that the
United States Attorney General bears the full regulatory
burden because, through PASPA, Congress effectively
commands the States to maintain and enforce existing
gambling prohibitions.1
PASPA is a statute that directs States to maintain
gambling laws by dictating the manner in which States must
enforce a federal law. The Supreme Court has never
considered Congress’ legislative power to be so expansive.
See Prigg v. Com. of Pennsylvania, 41 U.S. 539, 541 (1842)
(“It might well be deemed an unconstitutional exercise of the
power of interpretation, to insist that the states are bound to
1
A refusal to enforce existing laws would be the same
as a repeal of existing laws: the States would be authorizing
sports wagering.
10
provide means to carry into effect the duties of the national
government, nowhere delegated or intrusted to them by the
constitution”); F.E.R.C., 456 U.S. at 761–62 (“[T]his Court
never has sanctioned explicitly a federal command to the
States to promulgate and enforce laws and regulations ”)
(citing E.P.A. v. Brown, 431 U.S. 99 (1977)); New York, 505
U.S. at 178 (“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.”); Nat’l Fed’n of
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012)
(plurality opinion) (“[T]he Constitution has never been
understood to confer upon Congress the ability to require the
States to govern according to Congress’ instructions.”
(quoting New York, 505 U.S. at 162)).
II.
It is now apparent that Christie I was incorrect in
finding that “nothing in [PASPA’s] words requires that the
states keep any law in place.” 730 F.3d at 232 (first and third
emphasis added). With respect to the doctrinal anchors of
Christie I, the cornerstone of its holding has been eroded by
the majority, which has excised Christie I’s discussion
regarding “a false equivalence between repeal and an
authorization.” Id. at 233. Notably, that discussion was
included in Christie I to avoid “a series of constitutional
problems.” Id. Today’s majority makes it clear that passing a
law so that there is no law in place governing sports wagering
is the same as authorizing it by law. See Maj. Op., at 17
(“The word ‘authorize’ means, inter alia, ‘[t]o empower; to
give a right or authority to act,’ or ‘[t]o permit a thing to be
done in the future.’”) (citation and footnote omitted).
11
I dissented in Christie I because the distinction
between repeal and authorization is unworkable. Today’s
majority opinion validates my position: PASPA leaves the
States with no choice. While Christie I at least gave the
States the option of repealing, in whole or in part, existing
bans on gambling on sporting events, today’s decision tells
the States that they must maintain an anti-sports wagering
scheme. The anti-commandeering doctrine, essential to
protect State sovereignty, prohibits Congress from compelling
States to prohibit such private activity. Accordingly, I
dissent.
12