At last, pro­hi­bi­tion lifted on sports wa­ger­ing

Richmond Times-Dispatch - - OP/ED - Ge­orge Will’s email ad­dress is georgewill@wash­ © 2018, Wash­ing­ton Post Writ­ers Group

Re­peal of Pro­hi­bi­tion in 1933 in­stantly re­duced crime by re­duc­ing the num­ber of crim­i­nal­ized ac­tiv­i­ties, in­clud­ing some that mil­lions of Amer­i­cans con­sid­ered vic­tim­less ac­tiv­i­ties and none of the gov­ern­ment’s busi­ness.

Now, Amer­ica is go­ing to be­come more law abid­ing, the Supreme Court hav­ing said that the fed­eral gov­ern­ment can­not pro­hibit states from le­gal­iz­ing what Amer­i­cans have been do­ing any­way with at least 150 bil­lion of their dol­lars an­nu­ally. This large fig­ure (al­most five times the com­bined rev­enues of MLB, the NFL, NBA and NHL; 14 times the movie in­dus­try’s do­mes­tic ticket sales) is a guess and might be much less than the ac­tual sum that Amer­i­cans wa­ger on sports.

In 1992, when sports bet­ting was il­le­gal in most states, Con­gress, prompted by New Jersey Demo­cratic Sen. Bill Bradley (Prince­ton all-Amer­i­can bas­ket­ball player, Olympian, New York Knick), passed the Pro­fes­sional and Ama­teur Sports Pro­tec­tion Act (PASPA).

This did not do what Con­gress has the power to do: Be­cause the court’s per­mis­sive con­stru­ing of Con­gress’ power to reg­u­late all sorts of more or less eco­nomic ac­tiv­i­ties for all sorts of rea­sons, Con­gress could crim­i­nal­ize sports gam­bling. In­stead, how­ever, it gave New Jersey, alone among the 46 states that did not al­ready have such bet­ting, one year to adopt it, af­ter which New Jersey would be for­bid­den to do so.

Il­le­gal sports bet­ting was es­ti­mated to in­volve only $25 bil­lion an­nu­ally when PASPA was passed. Its sub­se­quent bur­geon­ing is re­dun­dant ev­i­dence that re­strain­ing a pop­u­lar ap­petite with a statute is akin to las­so­ing a lo­co­mo­tive with a cob­web, which should chas­ten busy­body gov­ern­ments.

While one should for­mally frown upon the law­less­ness of wa­ger­ing Amer­i­cans, their anarchic ten­den­cies are, on bal­ance, wholesome.

Also in 1992, the Supreme Court be­gan enun­ci­at­ing the “anti-com­man­deer­ing” doc­trine: The fed­eral gov­ern­ment may not pur­sue its objectives by re­quir­ing states to use, or re­frain from us­ing, their re­sources for those objectives.

The Con­sti­tu­tion’s 10th Amend­ment (“The pow­ers not del­e­gated to the United States by the Con­sti­tu­tion, nor pro­hib­ited by it to the states, are re­served to the states re­spec­tively, or to the peo­ple”) means, the court has held, that “while Con­gress has sub­stan­tial pow­ers to gov­ern the na­tion di­rectly, in­clud­ing in ar­eas of in­ti­mate con­cern to the states, the Con­sti­tu­tion has never been un­der­stood to con­fer upon Con­gress the abil­ity to re­quire the states to gov­ern ac­cord­ing to Con­gress’ in­struc­tions.”

In a 2011 ref­er­en­dum, New Jersey vot­ers strongly ap­proved sports bet­ting; two months later, the state leg­is­la­ture ap­proved such bet­ting in casino sports books and at horse tracks. Af­ter courts twice held that New Jersey was vi­o­lat­ing PASPA, the state ap­pealed to the Supreme Court, say­ing:

“Never be­fore has fed­eral law been en­forced to com­mand a state to give ef­fect to a state law that the state has cho­sen to re­peal.”

On Mon­day the court ruled, 6-3, in fa­vor of New Jersey and three prin­ci­ples of good gov­ern­ment that are threat­ened by fed­eral com­man­deer­ing. Writ­ing for the ma­jor­ity, and joined by Chief Jus­tice John Roberts and Jus­tices An­thony Kennedy, Clarence Thomas, Elena Ka­gan, and Neil Gor­such, Sa­muel Al­ito said: The anti-com­man­deer­ing rule pro­tects in­di­vid­ual lib­erty by main­tain­ing a “healthy bal­ance of power” be­tween the states and the fed­eral gov­ern­ment. The rule “pro­motes po­lit­i­cal ac­count­abil­ity” be­cause “vot­ers who like or dis­like the ef­fects” of a reg­u­la­tion “know who to credit or blame.” And the rule “pre­vents Con­gress from shift­ing the costs of reg­u­la­tion to the states.”

This sea­son, an NHL team be­gan play­ing in Las Ve­gas, where the NFL’s Oak­land Raiders will re­lo­cate in 2020. Be­cause of what the court did Mon­day, soon a ma­jor­ity of states, with a ma­jor­ity of the na­tion’s pop­u­la­tion, prob­a­bly will be reg­u­lat­ing and tax­ing le­gal­ized sports gam­bling.

The un­em­bar­rass­able Na­tional Col­le­giate Ath­letic As­so­ci­a­tion has said with­out blush­ing that sports bet­ting threat­ens “stu­dent-ath­lete well-be­ing and the in­tegrity of ath­letic com­pe­ti­tion.” Ac­tu­ally, an in­fu­sion of run-of-the-mill back-al­ley book­ies in soiled rain­coats might el­e­vate col­lege bas­ket­ball’s mo­ral tone.

Just af­ter PASPA was en­acted, 56 per­cent of Amer­i­cans op­posed le­gal­ized bet­ting on pro­fes­sional sports events. A quar­ter of a cen­tury later, 55 per­cent ap­prove. The na­tion’s most in­sis­tent pro­mot­ers of gam­bling are state gov­ern­ments that run lot­ter­ies. Law lags morals, but not for­ever.

The pro­fes­sional sports leagues were on the los­ing side Mon­day, but will find ways to profit from bet­ting on their prod­ucts. Mark Cuban, owner of the NBA’s Dallas Mav­er­icks and a mav­er­ick him­self, thinks that in­ten­si­fied fan in­ter­est will dou­ble fran­chise val­ues across base­ball, foot­ball, bas­ket­ball, and hockey.

Want to bet against him? Go ahead.


Wanna bet? Maybe not yet, if the Bal­ti­more Orioles are your team.

Ge­orge Will

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