Noah Feldman writes: The New Jersey public, not to mention Governor Chris Christie, wants to reinstate sports gambling in Atlantic City in the hopes of reversing the trajectory of a place that has totally cratered.
The nominal justification for the federal law that effectively banned sports gambling in the U.S. was protecting professional and amateur sports against the taint of gambling, and hence of point-shaving or game-throwing.
The law exempted Nevada’s legalized sports gambling. It also grandfathered sports lotteries in three states. Finally, it gave New Jersey the option of reinstating sports gambling in Atlantic City — provided that it did so within a year from the passage of federal law. New Jersey didn’t take advantage of the option within the time limit.
Whatever its original motives, Paspa today serves as guarantor of Nevada’s pre-eminent position in the vast U.S. sports gambling industry.
New Jersey’s efforts to allow sports gambling included a 2011 statewide referendum that endorsed a change in the laws; Christie signed a bill decriminalizing such betting in 2012. The 2013 decision blocking that initial effort grew out of litigation by the National Collegiate Athletic Association, as well as the National Football League, the National Hockey League and Major League Baseball to block that law.
In response, New Jersey argued that Paspa violates the Constitution. They put most of their eggs in the wrong basket, emphasizing the claim that Congress lacked the authority to “commandeer” state resources for federal objectives.
Roberts’s argument was that such differential treatment of states required a strong justification, which existed when the Voting Rights Act was passed in 1965 but no longer existed today. This claim was strongly criticized, and the eminent and acerbic Judge Richard Posner commented that he’d never heard of the “equal sovereignty” doctrine because it didn’t exist. But equal sovereignty is now the law of the land.
Paspa treats states differently from one another by enshrining Nevada’s special gambling preserve — and hence violates the equal sovereignty of New Jersey voters by denying them the right to do what Nevada does. This isn’t just a matter of constitutional doctrine. It also makes constitutional common sense.
Many laws may have differential effects in the real world. A coal mining regulation will affect West Virginia more than it affects Hawaii. And the courts shouldn’t be in the business of reviewing every federal law to see whether it helps some states over others.
But a law that explicitly gives some states rights that others lack goes too far. And it’s worse when the public in one state wants to change its laws to compete with another state — and is denied that right by the federal law in question.
