Sports betting in Las Vegas. Credit: Nick_Nick/Shutterstock.com

On May 14, 2018, the United States Supreme Court held that New Jersey could legalize sports gambling at horse tracks and casinos. New Jersey Thoroughbred Horsemen's Association v. National Collegiate Athletic Association, 584 U.S. ___ (2018). However, this decision, authored by New Jersey's own Justice Alito, is significant not only for its practical result but also for its astute discussion of the basis for the decision, i.e., the anti-commandeering principle. To appreciate this somewhat esoteric doctrine, Justice Alito discussed the development of legalized gambling in New Jersey.

New Jersey's 1897 constitutional amendment, barring all gambling, was gradually modified to allow:

1. Parimutuel betting on horse races,

2. Bingo games in churches (1953),

3. A lottery (1970), and

4. Casino gambling in Atlantic City (1976).

In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibited states other than Nevada, Oregon, Delaware and Montana, which already permitted a type of sports gambling, from authorizing sports gambling. Although this act, which included New Jersey's own Senator Bill Bradley as a sponsor, gave New Jersey the right to legalize sports betting until Jan. 1, 1993, New Jersey did not do so until 2011, when New Jersey's constitution was amended to allow sports gambling.

After New Jersey 's first attempt to legalize sport gambling in 2012 was enjoined, in an action brought by the National Collegiate Athletic Association (NCAA), National Football League (NFL) , National Basketball Association (NBA), National Hockey League (NHL) and Major League Baseball (MLB), its second attempt, in 2014, partially repealed the state law prohibiting sports gambling. After the New Jersey Thoroughbred Horsemen's Association lost, again in an action brought by the five sports leagues, in the federal district court and the Third Circuit en banc, undeterred and confident, Dennis A. Drazin, Esq., Chairman and CEO of Monmouth Park, brought the case before the U.S. Supreme Court. Justice Alito, applying the anti-commandeering doctrine, held that the PASPA was unconstitutional because the U.S. Constitution did not give Congress the right to "regulate state governments' regulation of their citizens."

So what is this "arcane" anti-commandeering doctrine that now permits sports gambling?

Justice Alito explained that the anti-commandeering doctrine provides that, because the U.S. Constitution guarantees dual sovereignty, "Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program (and) … may not conscript state governments as its agents." As Justice Alito pointed out, although the Constitution grants certain enumerated legislative powers to Congress, "conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States."

The court explained that the anti-commandeering doctrine:

1. Protects the balance of power between the federal and state governments by "reduc(ing) the risk of tyranny and abuse from either front";

2. Allows voters to determine political accountability—i.e., is the state or the federal government responsible for passing a particular law?—and

3. It "prevents Congress from shifting the costs of regulation to the States."

Thus the Ccurt held that the PASPA violated the anti-commandeering rule because it put state legislatures "under the direct control of Congress." In Justice Alito's opinion, "a more direct affront to state sovereignty is not easy to imagine."

Although the sports leagues argued that while Congress cannot compel a state to pass a law, they contended that the PASPA did not violate the anti-commandeering policy because the act merely prohibits a state from passing a new law, or from partially repealing an old law (as New Jersey did). However, the court disagreed and found that "this distinction is empty." Justice Alito explained why: If instead of allowing Nevada and the three other states to continue to allow sports betting, the PASPA required these states to take affirmative steps to criminalize sports betting and, at the same time, ordered the remaining states to refrain from repealing their laws prohibiting sports gambling, "there is no good reason why the former would intrude more deeply on state sovereignty than the latter."

The court also summarily dismissed the sports leagues' preemption argument by pointing out that the preemption doctrine "specifies that federal law is supreme, in case of a conflict with state law." However, the court noted that the preemption doctrine is based "on a federal law that regulates the conduct of private actors, not the States … (and) there is no way in which this (PASPA) provision can be understood as a regulation of private actors."

In refusing to permit Congress to supersede states' powers, Justice Alito relied upon none other than the Declaration of Independence, which reserved to the states "the authority to do all … Acts and Things which Independent States may of right do." The court recognized that "the Constitution limited but did not abolish the sovereign powers of the States, which retained a residuary and inviolable sovereignty."

In recognizing that Congress is not all-powerful when dealing with states' rights, Justice Alito should be commended. Our Founding Fathers would be proud of this decision.



Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.