‘Bill Bradley, call your bookie’

The Supreme Court strikes down the 1992 fed­eral law, writ­ten by Bradley, that banned com­mer­cial sports bet­ting

The Washington Times Daily - - OPINION - By An­drew P. Napolitano An­drew P. Napolitano, a for­mer judge of the Su­pe­rior Court of New Jer­sey, is a reg­u­lar con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of nine books on the U.S. Con­sti­tu­tion.

In 1992, Congress passed a statute au­thored by Sen. Bill Bradley of New Jer­sey, who was a for­mer Prince­ton Uni­ver­sity and New York Knicks basketball su­per­star, pro­hibit­ing the states from au­tho­riz­ing sports bet­ting. At that time, gam­bling in At­lantic City was flour­ish­ing, and notwith­stand­ing one of its own sen­a­tors’ ef­forts to keep gam­bling away from com­pet­i­tive sports, the state of New Jer­sey wanted to du­pli­cate Las Ve­gas’ suc­cess with sports bet­ting.

When Mr. Bradley’s leg­is­la­tion grand­fa­thered the state of Ne­vada, leg­is­la­tors in New Jer­sey came up with an idea to get around the fed­eral leg­is­la­tion that would per­mit At­lantic City casi­nos to com­pete with those in Las Ve­gas by re­peal­ing all laws about sports bet­ting, thereby es­cap­ing the fed­eral pro­hi­bi­tion on “au­tho­riz­ing” sports bet­ting. It would be up to the casi­nos to set up their own bet­ting par­lors for col­lege and pro­fes­sional sports, and in so do­ing they could in­crease their own bot­tom lines and thus the state’s tax rev­enues.

When ma­jor pro­fes­sional sports leagues and the NCAA chal­lenged this, a fed­eral district court in Ne­wark read the ”thou shalt not au­tho­rize” lan­guage to mean “thou shalt not per­mit un­der any cir­cum­stances.” That rul­ing was up­held by a fed­eral ap­peals court in Phil­a­del­phia, and New Jer­sey ap­pealed its case to the U.S. Supreme Court, which ruled in its fa­vor ear­lier this week. Get ready to call your bookie. The Supreme Court de­ci­sion re­in­forces the anti-com­man­deer­ing ju­rispru­dence of the 10th Amend­ment, which was dor­mant from the New Deal era to the mid-1990s. Re­call that the states formed the fed­eral gov­ern­ment, not the other way around. When they did so, they del­e­gated cer­tain ar­eas of gov­ern­men­tal au­thor­ity to the feds, and as new states were added to the Union, they did the same.

The 10th Amend­ment is the con­sti­tu­tional recog­ni­tion of the tru­ism that the leg­isla­tive pow­ers that the states did not del­e­gate to Congress they re­tained for them­selves.

The anti-com­man­deer­ing ju­rispru­dence pro­hibits Congress from telling the states how to gov­ern or leg­is­late or spend their tax dol­lars in any gov­ern­men­tal ar­eas not del­e­gated to the Congress. This con­gres­sional prac­tice was con­demned in a case called Printz v. United States, in which Congress had or­dered state law en­force­ment of­fi­cials to es­tab­lish cer­tain gun reg­is­tra­tion pro­to­cols con­sis­tent with con­gres­sional stan­dards and made state leg­is­la­tures pay for the en­force­ment of the pro­to­cols.

The Supreme Court, through the late Jus­tice Antonin Scalia, char­ac­ter­ized this fed­eral leg­is­la­tion as “com­man­deer­ing” — tak­ing the dis­cre­tion away from — state of­fi­cials and leg­is­la­tures. The Supreme Court’s sports gam­bling de­ci­sion this week fol­lowed the ra­tio­nale of the Printz case and char­ac­ter­ized the fed­eral leg­is­la­tion that pro­hib­ited the states from per­mit­ting sports gam­bling as com­man­deer­ing their leg­isla­tive pro­cesses.

The rea­son that fed­eral com­man­deer­ing of state leg­isla­tive pro­cesses is un­con­sti­tu­tional — Jus­tice Sa­muel Al­ito’s sports bet­ting opin­ion likened com­man­deer­ing to hav­ing a fed­eral agent on the floor of each state leg­is­la­ture give a thumbs-up or -down to pro­posed leg­is­la­tion — is that it flies in the face of the Guar­an­tee Clause of the Con­sti­tu­tion.

That clause guar­an­tees a rep­re­sen­ta­tive form of gov­ern­ment in each state. A rep­re­sen­ta­tive form of gov­ern­ment re­quires that the rep­re­sen­ta­tives in the gov­ern­ment be free to vote their con­sciences and not be pro­hib­ited or re­strained from do­ing so be­cause of a fed­eral com­mand. Did Bill Bradley make a mis­take?

I am a long­time fan and friend of Sen. Bradley’s, notwith­stand­ing our gen­eral ide­o­log­i­cal dif­fer­ences over the con­sti­tu­tional role of gov­ern­ment in our lives. Mr. Bradley is smart, fair and open-minded, and I miss him in the pub­lic fo­rum. Yet he ought to have known that the leg­is­la­tion he au­thored was un­con­sti­tu­tional, and he ought to have known that Congress could have out­lawed sports bet­ting had it cho­sen to do so.

Had Congress made sports bet­ting crim­i­nal — which it has not yet done — the sports gam­bling case this week would have been moot. Congress un­doubt­edly has the power un­der the Com­merce Clause to pro­hibit any item from in­ter­state com­merce that it wishes, and it could have done so to com­mu­ni­ca­tions that fur­ther sports bet­ting. But of course, fed­eral laws cost the feds money to en­force, and Congress did not want to foot that bill — hence Mr. Bradley’s scheme of trans­fer­ring the cost of pre­vent­ing sports bet­ting to the states.

If Congress had out­lawed sports bet­ting, such a law would not have im­pli­cated the anti-com­man­deer­ing ju­rispru­dence be­cause it would have been a re­straint on in­di­vid­ual per­sonal be­hav­ior and not a re­straint on the dis­cre­tion of state law en­force­ment or elected state rep­re­sen­ta­tives.

What are the un­in­tended con­se­quences of this rul­ing?

All of this bodes well for the in­de­pen­dence of the states in the ar­eas where they are free to gov­ern. There, they can be lab­o­ra­to­ries of democ­racy, de­pen­dent upon the pub­lic sen­ti­ment of their vot­ers and the freely ex­er­cised con­sciences of their state rep­re­sen­ta­tives.

In an odd cou­plet, how­ever, it also helps the sanc­tu­ary city move­ment, in­so­far as that move­ment pur­ports to re­quire that state and lo­cal law en­force­ment agen­cies not ac­tively en­force fed­eral im­mi­gra­tion laws or poli­cies be­cause com­pelling them to do so would vi­o­late anti-com­man­deer­ing ju­rispru­dence. The com­man­deer­ing would con­sist of re­mov­ing the dis­cre­tion of state and lo­cal law en­force­ment as to the dis­po­si­tion of law en­force­ment re­sources and the dis­cre­tion of state leg­is­la­tures as to how state tax rev­enue is spent.

And all of this un­der­scores the wis­dom of the Framers, who cre­ated a fed­eral union that, even after the Civil War, is still sub­ject to the sovereignty of the states. The beauty of the Union is that no two states are alike and we can all get our­selves to states where the laws are more to our lik­ing. Ron­ald Rea­gan once whim­si­cally cap­tured th­ese con­sti­tu­tional val­ues when he ar­gued that only in Amer­ica can you vote with your feet.

All of this bodes well for the in­de­pen­dence of the states in the ar­eas where they are free to gov­ern. There, they can be lab­o­ra­to­ries of democ­racy, de­pen­dent upon the pub­lic sen­ti­ment of their vot­ers.

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