US Supreme Court strikes down federal law prohibiting sports gambling
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> Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens.... The Constitution gives Congress no such power.
https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf
I don't quite understand what they're saying here...I guess the idea is that Congress can regulate gambling -- assuming some constitutional justification like the commerce clause -- but they can't restrict what laws states pass? (Of course, per drinking ages, they can tax states citizens and then release that tax money back to the states conditional on state s enacting certain laws.)
Here is extensive coverage on the excellent SCOTUSblog
http://www.scotusblog.com/case-files/cases/murphy-v-national...
Other HN submission (Bloomberg article):
It is worth noting that alcohol regulations might be a bit of a special case. It not merely a federal crime but is unconstitutional for a corporation or individual to transport alcohol into a state in violation of the laws of that state.
The federal government used a bit of a loophole here. Instead of regulating individual states, they simply set a drinking age of 21 as a requirement, else they'll lose 10 percent of their federal highway funds.
https://www.theatlantic.com/politics/archive/2014/07/four-ti...
Trump has tried to restrict federal funding to "sanctuary cities" as a way to coerce them into prosecuting illegal immigrants. It was struck down as not passing the South Dakota test, but he may try again.
http://www.cbc.ca/news/world/trump-executive-order-sanctuary...
The federal government also prohibits states from stopping federal funding of Planed Parenthood, which arguably cross-subsidizes (though does not directly fund) abortion.
https://qz.com/863101/title-x-obama-enacts-a-law-mandating-t...
What's this? Google just returns a bunch of results for the South Dakota DMV exam.
Interesting case law the above poster is referencing I think: https://en.wikipedia.org/wiki/South_Dakota_v._Dole
Notably one of the dissenting judges said this: "establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose."
It did however pass the supreme court at 7-2.
Not necessarily. Pretty much every state had to ask themselves the same question: "Do we care more about highway funding or the very small number of people 18-21 who vote?"
It's actually a very easy question in political calculus terms.
No.
Our political system involves some specific separations of powers, but politics is not fundamentally about thst.
This is SCOTUS throwing down a gauntlet. Sports gambling, virtually all of which being online, is ripe for commerce clause regulation. Congress knows how it can take the reigns if it wants to. SCOTUS is saying it isn't going to accept half-hearted attempts to regulate in this area... in full knowledge that a serious legislative effort in this area is near-impossible in the current climate. This is the supreme court asserting itself, showing that with the legislature so weakened it can exercise control over national policies. imho.
In general, I don't find unified personifications of groups of disagreeing humans to be very illuminating. Do you have any evidence this particular ruling is a coordinated action by the justices of the Supreme Court to communicate anything beyond their explicit decision to anyone? Or are you just speculating?
Like that a group of people who spent their entire academic and professional careers studying how subtle shifts in texts adjust balance of power, and how ambiguous rulemaking leads to unintended consequences have a deep and overwhelming interest in how people entertain themselves online.
If your business is making rules about rules, then you're going to see everything else as parochial, you're playing a game with slightly higher stakes.
It's like someone proposing a change in an instruction set and everyone's focused on possible impacts on UX for a handful of websites.
> You can always interpret any SCOTUS decision in terms of ... immediate outcomes [but generally shouldn't]
> This isn't such a case. The court is not basing its opinion on immediate outcomes.
I think we agree? I must have completely misread your original post, where I thought you said that SCOTUS was making a policy decision.
Uh, that's mostly not what judges spend their professional careers doing or what lawyers spend their academic careers doing.
It's what academic political scientists focussing on judicial and regulatory politics do, but that's not a background that tends to get you nominated for the Supreme Court.
I disagree, based on my academic experience preparing to be a lawyer and my nerdy conversations with my friends who are judges.
You could just learn the rote practice and skip jurisprudence entirely, but everyone on the supreme court understands the phrase "canon of construction" by this point in their career, along with various other meta-rulemaking principles.
My understanding of this case:
Congress can say ‘sports betting is illegal’, but they didn’t. They said ‘states much make sports betting illegal’. Congress doesn’t have the power to force states to pass laws, so the law is unconstitutional.
They could have done what they did in the alcohol situation (or many others) and said ‘if you don’t make sports betting illegal you don’t get law enforcement money from the feds’ or something like that.
That would have been (presumptively) constitutional. If the terms are too onerous the law could have been struck down.
But instead they used a power they clearly don’t have.
Interesting it survived this long.
Does anyone know why they didn’t just ban it directly instead of trying to make states do it? Was that the only way to give Nevada an exemption?
NJ has been fighting this for almost 10 years. They were facing their biggest opposition from the sports leagues. It just goes to show the political sway the NFL, NCAA and MLB have over the government.
And the established gambling industry. They could have simply made sports betting illegal, instead of passing a law that enables current donors to continue doing it, but forces new e-businesses, frequently incorporated outside of the country, to stop.
Not just interesting but discouraging, in my opinion. This unconstitutional rule affected billions of dollars of commerce for a quarter century. The legislators who passed it and the president who signed it (G.H.W. Bush) face no repercussions, so there's no disincentive for future law-makers to do similar things in the future.
I'm not sure I'd support something so extreme as having court review of unchallenged law, but it makes me consider it...
So many laws scrape through as the result of extreme "lobbying" and "productive donations". This investment of time and money is rewarded by the fact that once laws are passed they are extremely rarely overturned. Expiring laws would also help work against this sort of corruption. It would also help with things like the 'Patriot Act.' That bill was passed when the country was in a state of mindless panic, yet it lingers today. The government doesn't want to get rid of it since it massively expands their power, but at the same time - if they actually had to vote on it again, it would be extremely difficult to justify.
And finally it might make our legal code begin to be somewhat comprehensible. That you, without question, need to be a professional just to understand our legal code. And that even within that profession there are countless areas of expertise -- that is quite absurd. How can people be expected to obey (or critique) a system of law that they are in no way expected to have even the faintest grasp of, other than in the most broad meaningless strokes?
Is this some kind of sarcasm I'm not getting? PATRIOT Act in fact had expiring provisions, and government in fact did vote to extend it, three times actually.
I guess the question this proposal raises is if congress would actually review the laws, or just blanket renew everything, except when they're exceptionally dysfunctional. If the renewal comes late, does it still count as a renewal or is a new law, starting at 2 years?
I believe that there is a requirement that the money the Federal government threatens to withhold has to be for things related to the thing the Federal government wants the state to regulate.
The purported motivation for the Federal government wanting the drinking age to be 21 is to increase highway safety, so they can tie Federal highway funds to drinking age via highway safety.
This is also why most of the Federal aid cuts that the current administration threatened so-called "sanctuary" cities with did not worry the cities. Most of them were not in areas that could reasonably be tied to enforcing immigration law.
I would guess that most Federal law enforcement aid is for things sufficiently unrelated to sports gambling related crime that conditioning it on states changing sport betting laws would not fly.
To me, how case law enshrines coerced decisions in the court, is something that should be addressed.
That is why it was stricken. If it said it was illegal everywhere, then the supreme court would have upheld that.
Do you have quote from the decision to support this? It seems to conflict with what I excerpted and the analysis I've seen.
Media reports like to spin it as "sports gambling is illegal except in XYZ states", to make it look like favoritism and the story inciteful, but really the only thing distinguishing those states is legacy code.
Maybe one way of summing this up that makes more sense of the distinction is this: Congress can make laws that regulate behavior as a general matter (subject to other constitutional restrictions), but cannot regulate directly the behavior of state governments themselves.
It's unusual for congress to do the former but not the latter, but that appears to have been the case here.
2. Enforcing it at the federal level costs money. It's easier to pass a ban where you force the states to pay the costs.
In addition, the Ninth Circuit has held that Congress has Commerce Clause authority to criminalize possession of homemade machine guns.
Congress has chosen to allow states to regulate gambling to a certain extent, which explains its legality in various forms in the various states.
To transfer enforcement costs, including for hosting civil actions outside of the situations where state law claims get into federal court, to state law enforcement and courts.
The classic problematic rationale, that the court discusses in cases like Printz [1] is also dislocation of the political costs of enforcement away from federal officials onto state officials.
State-specific laws have an infamous history: https://en.wikipedia.org/wiki/Missouri_Compromise
The Professional and Amateur Sports Protection Act (PASPA) makes it unlawful for a State or its subdivisions “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events, 28 U. S. C. §3702(1), and for “a person to sponsor, operate, advertise, or promote” those same gambling schemes if done “pursuant to the law or compact of a governmental entity,” §3702(2). But PASPA does not make sports gambling itself a federal crime. Instead, it allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations.
That is, rather than say sports gambling shall be declared illegal, they made it a civil offense for a state to pass a law legalizing sports gambling.
1) “Congress may not simply ‘commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.’”
and
2) "The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle—that Congress cannot issue direct orders to state legislature—applies in either event."
3) "... since the Constitution “confers upon Congress the power to regulate individuals, not States,” ... "There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors."
Either way, it looks pretty clearly unconstitutional, since it's making a "constitution-level" rule about how State governments operate.
Basically that Congress is able to pass a federal law to prevent sports gambling but does not have the power to force states to pass and enforce state laws against sports gambling.
>but they can't restrict what laws states pass?
Restricing a state from passing a law is quite different from federally mandating a state to pass a law.
It's not clear Congress has that power. The much more pertinent fact is that Congress can induce states to pass laws by withholding funding.
https://en.wikipedia.org/wiki/South_Dakota_v._Dole
> Restricting a state from passing a law is quite different from federally mandating a state to pass a law.
From the decision:
"The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle—that Congress cannot issue direct orders to state legislature—applies in either event."
The federal government can make it illegal for people to place sports bet or run a gambling ring, because it has authority and sovereignty over the people in the United States.
The federal government has rather wide authority. For example, Congress could make it illegal for American citizens to gamble in Canada (In the same way, it used to be illegal to do business with Cuba). However, Congress cannot pass a law saying that Canada cannot legalize gambling, because the government of the United States has no authority over the sovereign government of Canada.
Similarly, the federal government can make it illegal for its residents to gamble. However, it cannot exercise authority not directly given to it over the state governments, because the federal government has no authority over the sovereign state governments. The state governments and the feds share sovereignty over the boundaries of each state, but the state government retains all aspects of sovereignty not explicitly given to the feds. Gambling is one of those things that the states retain sovereignty over.
There is a much stronger interstate commerce clause claim for a very broad prohibition here (say, effecting any betting either on any competition involving an interstate or international sports league, or where the bet crosses state or national borders, or using regulated wire or broadcast communication channels) than for many things that have survived challenge the whole way through the Supreme Court, so while I recognize that many people have narrow personal interpretations of the Commerce Clause power, I don't think that is actually a real practical barrier here.
That is my personal interpretation of the constitution. But if you read the supreme court decision, the majority opinion states that they can.
The only reasons I've found blockchain at all interesting is for the creation of combinatorial prediction markets. If gambling laws are getting lax enough in some states to allow centralized prediction markets, my interest will wane to zero.
$5bn in annual last vegas bets, for example. The global market is probably 50-100X larger. Is that a prediction market?
I hadn't heard of IEM before. Not sure what's up with that.
Lots of adults were alive when that age limit was eighteen. A small handful were alive when it was prohibited entirely. US (still, despite recent politics) receives immigrants from around the world who have a very different culture with regard to alcohol consumption.
An easy way to deter fake ids that was pretty common even a decade ago was to have off duty cops checking ids, so that being discovered can result in jail time instead of just getting kicked out.
They even have apps now that can detect most fake ids.
https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...
Plus, it doesn't seem like America is politically interested in lowering the drinking age.
(IANAL).
IIRC, that's done by allowing states to set their own drinking age, but withholding federal funds for highways unless the drinking age is at least 21. So any state could set a lower drinking age, legally, but they'd be on the hook for making up the difference in funds from their own budget.
That said, the combination of this decision and the ACA ruling that the federal government couldn't withhold funds from non-participating states may provide ground for a challenge to that law.
It has already been established that the federal government can't compel states to enact laws or enforce federal ones. [1] (The "federal" drinking age is OK because, IIRC, it was not actually done through direct compulsion, but by conditioning the grant of federal highway funds.) The interesting thing in this case is that the Court has also concluded that the federal government can't forbid a state from enacting a law. Of course, the federal government can still enact its own laws (subject to the Constitution's usual limits on federal power), which would preempt state law. This was a weird case where the federal government tried to do the former but not the latter.
[1] For example, https://en.wikipedia.org/wiki/Printz_v._United_States
[0] https://en.wikipedia.org/wiki/South_Dakota_v._Dole
[1] https://en.wikipedia.org/wiki/National_Federation_of_Indepen...
If you'd like to go on a crusade about prohibition or even access to drugs/controlled substances in general I might be obliged to saddle up with you, but this isn't the straw that is breaking the camels back IMHO
I'm sure that if the US makes sports betting legal we'll see a huge influx of betting companies, apps, etc. Like you said, most of it was handled by foreign companies, but now they'll be able to advertise and grow in the US in earnest.
I never really understood how they got around the limitation with stuff like NASCAR, where you really are essentially betting on the outcome of a single race. Maybe it's like PGA where the tournament is the culmination of a set of matches or something.
Now that states can allow betting directly, they can do things like require a gaming license to operate, require a physical location, etc. Many may still prohibit online gambling. Federal law that prohibits online gambling can still also prevent straightforward betting over the Internet.
The major problem I see is that while the current DK business model must be extremely profitable (just hosting contests that you don't have a stake in and taking a rake), running a sportsbook is an entirely different business. One that typically brings minimal profits and can sometimes bring enormous losses because now they are taking the action themselves. Sportsbooks are not typically profit centers for casinos but loss-leaders to bring in people to buy drinks and gamble on more profitable games.
I'm sure they must have been worried about this happening but probably will try and get out in front of it to become an online bookmaker. My own hot take is that this cannot be viewed as anything but a negative for them. I have to believe it would be very difficult to compete with huge casinos that can build their own platforms and bundle betting with their rewards programs. I also agree with the OP's assumption that most people currently using daily fantasy sites would much prefer to simply bet on games.
Is this actually the case? First I ever heard of sportsbetting being a loss-leader. Not disputing, just trying to learn more.
While this is true for places with competition among sportsbooks, like, say Nevada or the internet, it's not necessarily true for the states. If they start running a sportsbook (either themselves or, more likely, through a contractor) with a monopoly in their particular state, then they'll be able to charge more per-bet than they otherwise could. Instead of the standard 11:10 line, they could charge 12:10 or even 13:10 and they'd still get gobs of bettors wanted to put money down at the only legal game in town.
The state lottery agencies are far better positioned to start offering sports gambling, in-person, and will probably do so very quickly.
What DraftKings and FanDuel provide is basically a loophole in the federal law which made gambling via fantasy sports legal. You draft a new team every day, and gamble that your team will do better on that particular day than other people. It's kind of a pain in the butt to do, when what you really want is to just watch the games and root for one team...
Breyer dissented in part.
Ginsberg and Sotomayor dissented completely.
In general, each sovereign jurisdiction will fall back on the legal system that was in place at the time the jurisdiction gained its sovereignty. For California, the ancestor state was Mexico, and thus Spain.
https://www.law.berkeley.edu/library/robbins/pdf/ca-legalher...
But to answer the larger question. Everything that is not specifically legislated against is legal. Some ancient laws may still hold, but most are probably going to be found unconstitutional. Although, there may be some exceptions that you could convince a court to enforce.
I'm used to it. HN readers are very sensitive to tone. The downvotes come first and then the upvotes.
In the case of drug laws there are clear federal laws regulating drug trafficking, so this ruling does nothing to effect the status quo.
And the longer view, is more people will be impoverished with more easy to obtain gambling. Sure, a few will win it big, and they will be flaunted out for the city/state/US to see. But on whole, more people will be harmed with this.
But I'm sure it shovels money around sufficiently, making the GDP look like it grew by a .1% Good 'ol "Parable of the Broken Window", at it again.
>And the longer view, is more people will be impoverished with more easy to obtain gambling
As long as they are doing it out of their own choice it is nobody's business.
Addictions in general tend to breed other, more problematic crime. Nobody feels bad for a junkie who blows all their own money and privately ODs in the street. People get really freaked out when a junkie is robbing people in the street to pay for his fix.
Where did you hear this from?
Also it is much better if the addicts are identified early and quickly so that people could stay away from them and shun them instead of a woman figuring out her husband is an addict after the marriage. After gambling addiction next what sugar addiction or netflix addiction ?
Banning gambling outright is an obvious way to make gambling black market. But we can take commission reports like this ( https://govinfo.library.unt.edu/ngisc/reports/7.pdf ) and determine best practices how to minimise gambling's impact.
1. Commission recommends that states, tribal governments, and pari-mutuel facilities ban credit card cash advance machines and other devices activated by debit or credit cards from the immediate area where gambling takes place.
2. (State, local, tribal) they should recognize that, especially in economically depressed communities, casino gambling has demonstrated the ability to generate economic development through the creation of quality jobs.
3. (States, localities, tribal) should recognize that lotteries, Internet gambling, and non-casino electronic gambling devices do not create a concentration of good quality jobs and do not generate significant economic development. (Think of this as video slots in corners at gas stations)
Maybe the danger of sports betting is so concealed that we can't expect that the bulk of consumers can realize that danger until they have already been hurt (I'm not making that claim.) Wouldn't you expect a government to regulate in that case?
How about this: Gambling is legal, write your representatives about sponsoring a bill requiring X% of gains by casinos/bookies to be sent towards funding addiction recovery programs? Is it perfect? No. Is it something that will help? Yes.
Vice legislation is hard, but there's no proper morality in telling people, "no you idiot, I know better than you and you can't have this thing you want". (Unless those people are children, in which case no, they can't have this thing they want). Some people can occasionally do drugs, gamble, or visit a brothel. Some people can't. Saying that the percentage of people unable to handle access to their vice means that nobody should get it feels wrong to me.
There are people who would and do gamble on anything. In the end, you can't stop them. You can only criminalize after the fact. But that's starkly very far away from bling-bling flashy casino, with weird 'ingame currency' to disconnect understanding of currency costs, and every game in the book to increase revenue.
And the commissioner report I linked to states only negatives on things like electronic gambling. They contribute nothing good, and many bad.