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BEN WILLIAMS — Slam dunk beach read from the U.S. Supreme Court

Ben Williams

Just in time for that summer trip, the U.S. Supreme Court has released a jackpot beach read: Murphy v NCAA. Justice Samuel Alito – a wannabe baseball commissioner who once suited up at a Phillies Phantasy Camp – lays the cards on the table and upends the long-time federal ban on sports betting.

This 49-page page-turner has it all –sports, gambling, an underdog, the Federalist Papers, the Tenth Amendment, a winner-take-all decision, a blistering dissent from the two Justices huddled in left field, and an off-the-court matchup pitting a two-time NBA champion turned democratic U.S. Senator against a former U.S. Attorney turned Republican Governor, who unexpectedly spent his high school senior year riding tall on the pine.

The Legislation at Issue

Alito leads with a laconic one-line generalization: “Americans have never been of one mind about gambling.” We learn that U.S. Senator Bill Bradley (Knicks-D-NJ) floated, and Congress passed, the Professional and Amateur Sports Protection Act (PASPA) in 1992, which made it “‘unlawful for a State … to sponsor, operate, … license, or authorize … gambling … on’ competitive sporting events.”  Congress grandfathered Nevada, as the Silver State was an early fan of sports gaming (and brothels).

The law empowered the U.S. Attorney General and private sports organizations to obtain injunctions in federal court to block perceived encroachments. When perennial bookie New Jersey engaged in some pre-season gaming warmups, numerous professional sports leagues and the National Collegiate Athletic Association (NCAA) filed suit to enforce the sports gaming ban.

NJ Governor Chris Christie, the bench-warming high school senior, scouted out the opposition and called an audible for a full-court press.

The case roster is a Who’s Who of Athletic Politicians.  Somehow, Alito omits George H. W. Bush – a Yale baseball team captain in the very first College World Series (1947) – from the program. Bush 41 appointed Alito to the federal bench and later signed PASPA into law. 41 and I boned up on the U.S. Constitution in Houston during the May 19, 2018 matinee of Hamilton.  He scored a box and I watched from the Uecker seats.

Notice the main players all seem to hail from New Jersey –the U.S. Senator who pressed the legislation, the Governor who challenged it, pertinent judges along the way, and, yes, even the U.S. Supreme Court Justice who wrote the opinion.  What are the odds?

The Burning Legal Question

The Supremes addressed a simple question: Is PASPA – a federal law prohibiting the States from permitting sports gaming – a constitutional exercise of Congressional power?  New Jersey argued PASPA commandeered state sovereignty. The turf-protecting leagues contended PASPA constituted “federal preemption.”

The Lower Court Rulings

Trial Court. In the luck of the draw, New Jersey born and educated U.S. District Judge Michael Shipp won the toss and presided over the lower court case that had the NCAA, NBA, NFL, NHL, and MLB all cheering for PASPA.

NFL aficionados will recall that auspicious Sunday, September 29, 2002, when Arizona Cardinal’s Marcel Shipp (the federal judge’s brother) tallied two touchdowns on 17 carries for 92 yards to topple the New York Giants at Sun Devil Stadium. By the time of his big brother’s 2014 opinion, the running back had long retired as a player and moved on to, well, coaching.

In a rousing use of game clock management, Judge Shipp sua sponte granted summary judgment on a motion for preliminary injunction in favor of PASPA.  His logic:  “When state law contradicts with federal law, the Supremacy Clause operates to preclude states from following policies different than those set forth by federal law.”

Appellate Court.  Out of joint with the call, the Garden State hurled a red flag, and the review landed at the U.S. Court of Appeals for the Third Circuit.  The appellate zebras sided 9-3 with NCAA. A spirited dissent tossed out by Judge Thomas Vanaskie – who played football at Lycoming College under the legendary Frank Girardi – served as a playbook for the upcoming Supreme Bowl.

The Supreme Refs Rule

The deck seemed stacked but the grant of certiorari by the U.S. Supreme Court leveled the playing field. The line would change again – also in favor of NJ – after the Justices tipped their collective hand at oral arguments.  Suddenly, what had been a slam dunk was now a house of cards.

Finally, 89 days after Super Bowl LII, a majority of Supreme Court Justices sounded a decorous Bronx cheer in favor of NEW JERSEY.  By a 7-2 vote (or maybe 6-3), the federal ban on sports gaming was deemed unconstitutional!

Professor Alito patiently walks the stunned student-athletes through the reasoning, pitching mini-tutorials on commandeering, preemption, States’ rights, and the misapplied Supremacy Clause. Congress, we are reminded, has no “plenary powers,” only “enumerated powers,” and that dogged Tenth Amendment reserves “all other legislative powers … for the States.”

As if schooling rookie legislators and bush league judges, Alito sardonically remarks: “[C]onspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.” As for that chest-thumping Supremacy Clause, well, it only kicks in if Congress validly exercises a power conferred on Congress by the Constitution.  No power, no Supremacy.  Not for the first time in this country’s history, Congress stepped out of the batter’s box.

Near the opinion’s home stretch, Justice Alito hurls a judicial curve ball. Almost as an aside and certainly in dictum, he quietly observes that Congress can “regulate sports gambling directly,” but that having not done so, “each State is free to act on its own.”  Do what?

This game isn’t over!  Congress gets a mulligan.

Concurrence & Dissent

Justice Thomas, who confessed affinity for the Dallas Cowboys during his evocative confirmation hearings, concurs with the opinion. But he disputes any notion that “Congress can prohibit sports gambling that does not cross state lines.”

Justice Ginsburg, aka The Notorious R.B.G., raps the majority for “wield[ing] an ax” on PASPA rather than “a scalpel.”

Conclusion

The Supreme Court found PASPA constitutionally flawed leaving the States free to engage in sports gaming. That ruling might not restrict Congress from flexing its Commerce Clause muscles with a direct run up the middle (instead of calling plays for the States).

Regardless of what Congress and the States do with sports gaming, the clear winner in this case is the Tenth Amendment. You see, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

You can bet on it.

» Ben Williams is a Mississippi attorney.  Email Ben at MBWJ@aol.com.  Ford Williams attends the Savannah College of Art & Design.

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