In 1992 Congress enacted the Professional and Amateur Sports Protection Act (PASPA), which made it unlawfulfor a State or any of its subdivisions "to sponsor, operate, advertise, promote, license, or authorize by law or compact ... a lottery, sweepstakes, or other betting, gambling, or wagering scheme based ... on competitive sporting events."²⁸However, it expressly exempted the small number of states which had already legalized such activities. In 2012,after a statewide referendum to allow sports betting passed overwhelmingly, the New Jersey legislature enacted a law legalizing it. The state was sued by sports leagues and the NCAA. It lost when the Third Circuit ruled PAPSA was a constitutional preemption of New Jersey's attempt to legalize in-state sports betting. The Supreme Court denied New Jersey's request for its review.

New Jersey tried again in 2014 to permit in-state betting on sporting events at its casinos and horse-racing tracks, this time by amending an existing state statute (rather than passing a new law). It lost again in the Third Circuit, but the Supreme Court accepted its request for review. The Court's opinion, handed down in 2018, found PAPSA a violation of the Tenth Amendmentas an attempt by Congress to "impermissibly commandeer the regulatory power" of the state of New Jersey. In the words of the Court:

When the original States declared their independence, they claimed the powers inherent in sovereigntyin the words of the Declaration of Independence, the authority "to do all ... Acts and Things which Independent States may of right do." The Constitution limited but did not abolish the sovereign powers of the States, which retained "a residuary and inviolable sovereignty. ...

... The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.²⁹

The Court then explained the difference between Congress commandeering a state's legislative function which is unconstitutional, and Congress preempting state law, which is constitutional.

... [R]egardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.

Once this is understood, it is clear that the PASPA provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. It certainly does not confer any federal rights on private actors interested in conducting sports gambling operations. (It does not give them a federal right to engage in sports gambling.) Nor does it impose any federal restrictions on private actors. If a private citizen or company started a sports gambling operation, either with or without state authorization, [PASPA] would not be violated.³⁰

So, at long last, New Jersey prevailed. Why was this such a hot-button issue for New Jersey? It is all about money.

In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State. But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue ... In 1970, New Jersey became the third State to run a state lottery, and within five years, 10 other States followed suit.

... [In 1974], voters approved a ... measure allowing casino gambling [only] in Atlantic City. ... At that time, Nevada was the only other State with legal casinos, and thus for a while the Atlantic City casinos had an east coast monopoly."With 60 million people living within a one-tank car trip away," Atlantic City became "the most popular tourist destination in the United States." But that favorable situation eventually came to an end.³¹

Thus,NewJerseyonceagainstrovetofindawaytoincreasestaterevenuesby creating a new stream from gambling.

As we saw above in the 2005 Raich case, the Supreme Court held that Congress had the power to, and did, prohibit marijuana use in the Controlled Substance Act (CSA), even homegrown marijuana used exclusively for a medically prescribed use that is legal under state law. In other words, by passing the CSA, Congress preempted contrary state laws. By 2005, 11 states had nevertheless legalized marijuana for medical purposes. At the time of this writing, 46 states have done so. Eleven have also legalized recreational use. Nevertheless, using marijuana remains illegal under federal law.

The Obama administration chose not to aggressively enforce federal marijuana laws, with some support from Congress in the form of a rider to an omnibus appropriations bill which Congress has reauthorized annually since 2014. The rider, known as the Rohrabacher-Farr Amendment, provides: "None of the funds made available in this Act to the Department of Justice maybe used ... to prevent [the] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." In the 2016 caseU.S. v. McIntosh, the Ninth Circuit held that federal criminal defendants could seek to enjoin their prosecutions by the Department of Justice based on the budget rider. In the Sandusky v. Goetz case before the District Court of Colorado at the time of this writing, a criminal defendant has raised the issue of the rider to prohibit his continued incarceration.

Nebraska and Oklahoma filed a motion with the Supreme Court requesting a hearing regarding their claims that the spillover effects from Colorado's unconstitutional state law allowing recreational use of marijuana imposes substantial burdens on them by forcing their expenditure of significant funds to combat increased trafficking and transportation of marijuana in their states. Under Article III, Section 2, the Supreme Court is given original jurisdiction in controversies between states, and Congress has provided that such jurisdiction is not only original, but "exclusive."³²The Court declined the motion without explanation.³³

REQUIRED:

1. PASPA, discussed above, banned sports betting, but only selectively, allowing states with then-existing laws permitting such gambling to continue. If the motive for PASPA was a concern for public welfare or public morals, how could a carve-out for existing betting be justified? Explain.

2. What is the difference betweenpreemption andcommandeering according to the Supreme Court in Murphy v. NCAA, mentioned above?

3. As a nation, should we be concerned that Congress has passed a comprehensive law intended to control access to, and the use of, a broad range of drugs that is being publicly ignored or avoided by all branches and levels of our government, as illustrated in the list below? Explain. In so doing, focus on the functioning of our constitutional structure, not on the substantiate merits of legalizing or criminalizing marijuana use.

• 33 states have passed laws in direct opposition to the CSA.
• The Supreme Court has refused to hear, and redress if appropriate, claims of harm inflicted on neighboring states by the actions of states legalizing recreational use.
• Congress itself has undermined its own law by repeatedly reauthorizing Rohrabacher-Farr Amendment.

4. Consider two issues discussed above: betting on competitive sports events and legalizing recreational marijuana use. Why are they causing our legal system so many problems? Explain.