Brief of Professor Ryan M. Rodenberg as Amicus Curiae in Support of Neither Party

Abstract

Under PASPA, disfavored States are bereft of options to address sports gambling within their borders. States without sanctuary under PASPA’s grandfather clause can either (i) do nothing in a pressing area of concern or (ii) be susceptible to repeated regulatory litigation initiated by private actors. Such a Hobson’s choice is unconstitutional.

The parties have positioned this case for resolution on anti-commandeering grounds under New York and Printz. Such positioning is misplaced. PASPA differs markedly from the statutes invalidated in New York and Printz. Through PASPA, Congress has directed States not to legislatively address sports gambling, while effectively leaving the regulatory enforcement of PASPA’s decree to self-interested private parties. Also, via a grandfather clause, PASPA mandates that its ban on sports gambling only applies to certain States. This type of “outsourced commandeering” that applies in some States, but not others, puts PASPA in an unconstitutional territory far removed from New York and Printz.

Beyond PASPA’s two-pronged unconstitutionality under the equal sovereignty doctrine and the private nondelegation doctrine, the district court also erroneously granted injunctive relief to non-litigant third parties. The lower court’s misinterpretation of PASPA’s text presents the Court with a nonconstitutional option to resolve the case, as the underlying injunction should be vacated and the case remanded. Amicus curiae submits that these alternatives provide the Court with the framework for deciding this case.

Keywords: Sports Gambling, Constitutional Law, Statutory Interpretation

JEL Classification: L83