U.S. Solicitor General to SCOTUS: Deny The New Jersey Sports Betting Appeal

New Jersey Sports Gambling AppealThe wait is over and the U.S. Solicitor General’s office has spoken. The tenth justice has urged that the U.S. Supreme Court deny New Jersey’s appeal for legal sports betting.

What Did The Solicitor General Say In His Brief?

On Wednesday, the Acting Solicitor General Jeffery Wall filed a brief regarding the NJ sports betting case after the request was made in January by SCOTUS. The high court specifically asked for the brief to cover the merits of Chris Christie, et al. v. NCAA, et al. and New Jersey Thoroughbred Horsemen’s Association v. NCAA, et al. – the two cases that have led to the years-long battle regarding the federal ban on legalized sports betting in NJ.

Rumors had been swirling that Wall would urge the Court to reject the case, and Wednesday’s actions proved that this was more than just hearsay.

One of the main arguments made by New Jersey in their case for legal sports betting was that the Professional and Amateur Sports Protection Act (PASPA) conflicts with the 10th Amendment of the United States Constitution. The anti-commandeering doctrine makes it unlawful for the federal government to require any state to enforce federal regulatory programs or edicts that are not related to their delegated powers. The Constitution does not delegate power over sports gambling to the federal government, which is the point that NJ has built their case upon.

In the 30-page brief that you can read here, the SG responds to this notion and explains why PASPA does not interfere with the rights of the states in any way:


“Section 3702(1) does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state officials to administer federal law. Instead, Section 3702(1) prohibits States from operating sports-gambling schemes themselves or affirmatively licensing or authorizing private parties to do so.”

The brief offers further justification by stating that since sports betting was largely illegal during its enactment, PASPA is “a permissible exercise of congress’s authority to regulate state activities and to preempt state laws that conflict with federal policy in an area within Congress’s enumerated powers.”

The Likelihood That The NJ Case Will Be Heard

Before the denial, SCOTUS asking for the brief from the office of the Solicitor General was seen as more than just a sign of good faith. Daniel Wallach, Gaming Attorney, asserted that the call to action made the likelihood of SCOTUS hearing increase by 37%. Now that the brief urged a denial, it is worth exploring how this may affect New Jersey’s chance for a hearing. According to Wallach, the Court sides with the option of the SG in 80% of cases.

The Nuclear Option

In the brief, there was one passage of PASPA discussed that could serve as an extreme but permissible option for New Jersey should their appeal be denied.

“Section 3702(1) is different. It does not obligate States to enact any law or to implement or administer any federal regulatory requirement.”

This section of the law permits the exercise of what is called the “nuclear option”. PASPA makes it illegal for states to regulate sportsbooks and issue new sports betting licenses, however, the state is not required to enact their own anti-sports betting laws against citizens. This means that New Jersey could legally repeal all gambling laws that relate to sports betting and allow any citizen to become a bookie without the threat of legal repercussions.

Though a gambling free-for-all would undoubtedly create a bevy of other issues, it would certainly call attention to the sports leagues and other opponents of legalized sports betting to possibly reconsider their stance on the federal prohibition on sports betting in New Jersey.

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