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"There's Gambling Going on Here? Shocking!" "Your Winnings, Sir"Steven J. Greenfogel

In a recent ruling by the Supreme Court, it has been found that the Congressional permanent ban on sports betting, for those States that did not adopt it by a certain date, was unconstitutional. The decision, Murphy v. NCAA, originally brought by New Jersey Governor, Chris Christie, will have a significant impact on far more than sports betting. In fact, it draws a line as to how far Congress can go in imposing laws on individual State governmental bodies.

According to the Court, the Tenth Amendment confers all legislative powers not expressly given to Congress on the States. Obviously, depending on the views of the Court at any given time, that can mean many different things. However, as the Court is presently constructed, the power given to Congress in that regard is viewed very narrowly. Critically, the Court held that “Congress may not simply ‘commandeer the legislative process of the States’ by directly compelling them to enact and enforce a federal regulatory program.’” In other words, according to the Court, Congress cannot, absent a direct Constitutional mandate, issue orders to a State legislature.

The reasoning behind this is twofold. First, the Court found that this division of power between the federal and state governments was designed to protect individuals from “the risk of tyranny and abuse from either front.” Second, the rule promotes political accountability, in that a citizen will understand from where the law or regulation originated. Third, the rule prevents Congress from shifting the costs for enforcing a Congressional mandate onto the States.

We tend to forget that we live in a federalist system, where all power does not emanate from Washington, D.C. Over the past fifty years, the power of the federal government to involve itself in states’ “rights” has been sharply curtailed. Whether this is a good or bad thing depends on your point of view and on the subject matter being discussed. For example, if the Court chooses to be consistent in its future rulings in this regard, the Federal government will be unable to force any state or local government to assist in enforcing Federal immigration laws. Thus, any directive by the Federal government (i.e., the Department of Justice or ICE) to compel local officials to assist in the arrest or detention of illegal immigrants, will run directly into the teachings of Murphy v. NCAA. Those of a liberal persuasion might like such an outcome.

On the other hand, many conservatives will be happy when what they regard as federal governmental overreach will be defeated by this narrow reading of the Tenth Amendment. Not being an expert on the intricacies of the Affordable Care Act (or Obamacare), I wonder whether all aspects of that law will survive the teachings in Murphy. Similarly, efforts by Congress to force states to adhere to their wishes in many areas will be curtailed by state legislatures who do not like what they see coming from Congress and can choose not to participate in directives from Washington.

No matter which side I may fall on a given issue, I know that Murphy v. NCAA will allow me (fool that I am) to go down to Atlantic City on a football Saturday and place a wager on the Fighting Illini.