Brief of Amicus Curiae Researcher John T. Holden in Support of Petitioners: Christie v. NCAA Et Al.

44 Pages Posted: 5 Sep 2017

Date Written: August 30, 2017

Abstract

The Third Circuit Court of Appeals’ en banc interpretation of the Professional and Amateur Sports Protection Act of 1992, 28 U.S.C. §§ 3701-3704 (PASPA), has impermissibly expanded the scope of Federal powers so as to prevent States from modifying or repealing their own statutes. Requiring the State of New Jersey to maintain its own provisions prohibiting sports gambling forces the State to employ their police powers to effectuate Federal policy. The commandeering of New Jersey’s ability to repeal its own laws is incompatible with this Court’s decisions in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997).

The determination of the Third Circuit that the law which New Jersey passed in 2012, N.J. STAT. §§ 5:12A-1-5:12A-6, was rightfully preempted by PASPA and did not violate the anticommandeering doctrine raises meaningful questions about the rights of the States. Nat’l Collegiate Athletic Ass’n v. Christie, 730 F.3d 208 (3d Cir. 2013) (hereinafter “Christie I”). However, the Third Circuit’s later en banc determination in 2016 that New Jersey was bound in perpetuity to maintain its ban on sports wagering with no ability to modify the statute is beyond the scope of the Federal government’s powers. Nat’l Collegiate Athletic Ass’n v. Chistie, 832 F.3d 389 (3d Cir. 2016) (hereinafter “Christie II”). The Federal government cannot require a State to enforce its own laws. The powers of the States and Federal governments are separate and unequal, with the Federal government confined to enforce its own laws, without conscripting either state legislatures or state officers. See Printz v. United States, 521 U.S. 898, 935 (1997).

The Federal government is forbidden from forcing States to enact any law or require State officials to enforce Federal law within the officials’ own State. Printz v. United States, 521 U.S. 898, 912 (1997). The extension thereof is that the Federal government cannot utilize Federal law to prohibit states from repealing, in part or in whole, their existing regulations thereby commandeering the State legislative process. See Erwin Chemerinsky et al., Cooperative Federalism and Marijuana Regulation, 62 UCLA L. REV. 74, 103 (2015). The Federal government is able to utilize its law making and enforcement authority free from State-level interference; however, the Federal government cannot commandeer or dictate how States regulate private conduct. The Federal government has power to regulate conduct beyond impermissibly “seeking to control or influence the manner in which States regulate private parties.” Reno v. Condon, 528 U.S. 141, 151 (2000).

Keywords: Gambling, Sport, Gaming, Anticommandeering, Federalism, Preemption, PASPA, State

JEL Classification: L83, L8, L98, M1, O1, O38, O51, P1, P16

Suggested Citation

Holden, John, Brief of Amicus Curiae Researcher John T. Holden in Support of Petitioners: Christie v. NCAA Et Al. (August 30, 2017). Available at SSRN: https://ssrn.com/abstract=3029296 or http://dx.doi.org/10.2139/ssrn.3029296

John Holden (Contact Author)

Oklahoma State University ( email )

201 Business Building
Stillwater, OK 74078-0555
United States

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