Brief of Amici Curiae Constitutional Law Scholars in Murphy v. National Collegiate Athletic Association

23 Pages Posted: 13 Apr 2018 Last revised: 19 Jun 2018

See all articles by Robert A. Mikos

Robert A. Mikos

Vanderbilt University - Law School

Date Written: April 13, 2018


The Professional and Amateur Sports Protection Act of 1992 (PASPA) makes it unlawful, among other things, for a state to "authorize" sports gambling. This Amicus Brief, drafted by Professor Robert A. Mikos and other law professors, argues that PASPA is unconstitutional as applied to New Jersey’s 2014 sports gambling law (SB2460). Because the New Jersey law merely repeals the state's own ban on sports gambling, it cannot be preempted by Congress without violating the Supreme Court's anti-commandeering doctrine. See Printz v. United Sates, 521 U.S. 898 (1997). Characterizing the law as "authorizing", "affirmatively permitting", or "empowering", etc. once-forbidden conduct does not alter the practical effect of the law--it still only eliminates state-imposed sanctions on sports gambling, something a state is entitled to do under the anti-commandeering rule. Indeed, upholding a congressional power to prevent states from repealing state-law prohibitions on conduct could jeopardize a variety of recent state reforms to policies governing everything from marijuana to firearms. The Brief urges the Supreme Court to reverse the decision of the Third Circuit Court of Appeals in National Collegiate Athletic Association v. Christie, 832 F.3d 389 (3d Cir. 2016), and in so doing, to help clarify the boundary between permissible preemption and impermissible commandeering.

Keywords: Federalism, Printz, commandeering, sports gambling, sports betting, sports wagering, PASPA, Professional and Amateur Sports Protection Act, New Jersey, Chris Christie, casino, Murphy, NCAA, National Collegiate Athletic Association, marijuana, cannabis, firearms, Tenth Amendment, preemption

Suggested Citation

Mikos, Robert A., Brief of Amici Curiae Constitutional Law Scholars in Murphy v. National Collegiate Athletic Association (April 13, 2018). Vanderbilt Law Research Paper No. 18-27, Available at SSRN: or

Robert A. Mikos (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-7184 (Phone)
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