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New Jersey Says PAPSA Ban Manifestly Unconstitutional in Amicus Brief to Supreme Court

In an opening brief submitted to the U.S. Supreme Court, as part of an ongoing case over the right of individual states to legalize sports betting, the state of New Jersey came out swinging.

The brief, submitted on behalf of New Jersey Governor Chris Christie and written by his lead counsel Ted Olsen, immediately asserts that the Professional and Amateur Sports Protection Act (PAPSA) of 1992 violates the U.S. Constitution:

“One of the ‘essential postulates’ derived from the ‘structure of the Constitution,’ is that ‘state legislatures are not subject to federal direction.’ … PASPA compels States to regulate – indeed, prohibit – sports wagering and therefore exceeds Congress’s authority.

Under our Constitution, if Congress wishes for sports wagering to be illegal, it must make the activity unlawful itself. It cannot compel States to do so.

PASPA’s conscription of New Jersey’s legislative and executive branches with respect to sports wagering is manifestly unconstitutional.”

The brief was just one of several to be submitted in recent weeks, as the Supreme Court considers the merits of a case known as Governor Christopher J. Christie, et al., v. National Collegiate Athletic Association, et al.

The case originated in 2011, when New Jersey voters approved a public referendum to allow legalized sports betting within the state. Two-thirds of voters supported the measure, prompting Christie to sign legislation to that end one year later.

The National Collegiate Athletic Association (NCAA), joined by the four professional sports leagues in North America (NFL, NBA, MLB, NHL), sued New Jersey to bring the legalization process to a halt. By August of this year, the U.S. Court of Appeals for the Third Circuit ruled in favor of the leagues, prompting Christie and New Jersey to file a petition for a writ of certiorari with the Supreme Court.

In a surprising move, the Court decided to take the case, with the recent wave of briefs filed on both sides representing the first step in that regard.

New Jersey has since been joined by 20 states across the country in filing briefs supporting the repeal of PAPSA:

  • Arizona
  • Florida
  • Indiana
  • Kansas
  • Louisiana
  • Mississippi
  • Missouri
  • Nebraska
  • New Hampshire
  • North Dakota
  • Ohio
  • Oklahoma
  • Rhode Island
  • Tennessee
  • Texas
  • Utah
  • Wyoming
  • West Virginia

Patrick Morrisey, who serves as Attorney General for West Virginia, outlined the states’ argument in a previous brief to the Third Circuit:

“The concern of Amici States—the States of West Virginia, Arizona, Louisiana, Mississippi, and Wisconsin—is not what Congress regulates but how it does so.

Even where it has Article I authority to act, Congress may not force the States to act as the vehicle for implementing federal policy and thereby shift to the States political accountability for its actions.

Such coercion is unconstitutional commandeering.”

Speaking with Legal Sports Report, Geoff Freeman – president and chief executive officer of the American Gaming Association – praised the statewide cooperation as an encouraging sign in New Jersey’s attempt to end PAPSA:

“Eighteen other states have joined West Virginia in filing a separate amicus brief to the US Supreme Court. This group of bipartisan states includes representation from every corner of the country, from states with and without gaming and includes signees from state AG’s offices, as well as governors’ offices.

It also includes the president of the National Association of AGs, both co-chairs of the NAAG gaming committee, and chair of the Conference of Western Attorneys General.

Notably, it also includes the state of Utah, a state that does not have gambling, and is encouraging the federal government to get out of the way.”

Other groups and organizations which have submitted briefs in support of New Jersey’s case include the AGA, the Pacific Legal Foundation, and sports law expert Ryan Rodenberg.

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