Hacker News Reader

Comment by jessriedel | Hacker News Reader

From the ruling:

> 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):

https://news.ycombinator.com/item?id=17065652

View on HN

The main idea is that Congress can decide if it is legal or not, but to say it's illegal everywhere except for Nevada makes it a non-federal statute as they are arbitrarily deciding that some state gets an exception, making it non constitutional.

That is why it was stricken. If it said it was illegal everywhere, then the supreme court would have upheld that.

> they are arbitrarily deciding that some state gets an exception, making it non constitutional. > ...That is why it was stricken

Do you have quote from the decision to support this? It seems to conflict with what I excerpted and the analysis I've seen.

It wasn't arbitrary. The states that had pre-existing laws kept them. The original decision prevented states from passing new laws to enable gambling, but didn't strike down or repeal existing laws, thus those states essentially got grandfathered in.

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.

I think you're disagreeing with raiyu, not me?

I don't think this is correct. As I read it, the issue was that, as others have said, the federal government attempted to regulate what laws a state could pass (which is related to a broader body of law about federal laws that compel states* to enact certain laws or to implement federal laws). Note, however, that this not to say that congress can't make its own laws and that, if it does, they would override state laws.

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.

Why would Congress do this? Is it because there is some other constitutional requirement they would be in violation of if they just made it illegal at the federal level?

1. There would be a backlash for outlawing it where it was already legal, and hence had an industry depending on it. In fact, there was an option to even legalize it in places so long as they did it within a year.

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.

Yes, the Tenth Amendment reserves powers not explicitly given to the federal government to the states and the people. Local sports and poker betting is already regulated by the states and a federal interstate commerce claim to regulate it is fairly weak.

Pursuant to Gonzales v. Raich, which ruled that Congress could criminalize the production and use of homegrown marijuana for personal use, the interstate effect of gambling in any form on any activity is almost certainly sufficient for Congress to regulate or prohibit any or all gambling activity.

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.

> Why would Congress do this?

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.

Expanding a bit on some of the reasons others have given, in this case I think it was also an attempt to grandfather a few states where sports betting was legal. There would have been obvious problems with banning sports betting in, e.g., every state but Nevada. But banning state legislatures from authorizing it (if it wasn't authorized already) seemed, perhaps, less problematic.

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.

[1] https://en.wikipedia.org/wiki/Printz_v._United_States

When did that Constitutional interpretation change?

State-specific laws have an infamous history: https://en.wikipedia.org/wiki/Missouri_Compromise

Your comment has no basis in fact. The decision has nothing to do with some type of equal protection for states and in no way addressed whether or not Congress even has the power to ban gambling everywhere.

It's right there in the beginning of the opinion:

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.

Sure, but I was asking about the legal reasoning supporting the opinion, not just the facts of the case.

Looks down into the syllabus, I think you'll find 2.(a), 2.(b), and 2.(c) have the key components from their regard:

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."

To my lay reading, that law says "separation of gambling and state", akin to the First Amendment on religion. It doesn't ban gambling, it bans the states governments from getting involved in gambling. It seems that unregulated gambling is allowed (or would be, if not for other provisions that grandfathered the existing anti-gambling laws of every state?)

Either way, it looks pretty clearly unconstitutional, since it's making a "constitution-level" rule about how State governments operate.

Others have pointed out the drinking age situation.

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?

Interesting it survived this long.

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.

> 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.

> Interesting it survived this long.

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...

An easier and more robust solution is to have expiring laws. Laws require a 'refresh' 2, 4 and then each 8 years after they're passed. If at any point they do not receive the a majority vote, they're scrapped.

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?

Making laws sunset (except, say, with a supermajority) is one of my favorite hypothetical amendments, but I think it's arguably even more revolutionary than court review of non-challenged laws...

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.

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'm unclear on the specifics of the patriot act, and I think that's to be expected. The reason is that whatever provisions may or may not expire are then wrapped up in enormous new bills which expand some, modify others, and generally make everything absolutely incomprehensible while being packed up in a new goofy name like the 'Freedom Act.' The whole thing helps to obfuscate things beyond belief as opposed to having a simple yes/no vote on maintaining or scrapping a bill.

Correct, this was a HUGE fight at the time, House Majority Leader Dick Armey fought his own party to include the expiring provision, and if memory serves some parts of the Patriot Act were not renewed.

> An easier and more robust solution is to have expiring laws. Laws require a 'refresh' 2, 4 and then each 8 years after they're passed. If at any point they do not receive the a majority vote, they're scrapped.

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?

> 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.

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.

> drinking ages

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.

...hence the rest of my sentence? Or are you just clarifying for other people?

Purely clarifying. It's kind of a unique tax incentive for the states isn't it? I'm not sure of other legislation that works under the same principles.

Education law. The federal government is requiring states to comply with its mandates or lose funding.

Also Medicaid expansion.

Just highway funds have been used by the federal government to enforce two other rules on the states: speed limits and motorcycle helmets. There have been attempts to also make national no-texting-and-driving rules.

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...

>South Dakota test

What's this? Google just returns a bunch of results for the South Dakota DMV exam.

https://en.wikipedia.org/wiki/South_Dakota_v._Dole I think.

Sorry, that's not standard terminology, I just used it because the case was discussed elsewhere in the thread. See the 5-point test here:

https://en.wikipedia.org/wiki/South_Dakota_v._Dole#Decision

That always seemed wrong to me, isn't politics about the separation of powers, why do we allow them to exert control like that?

Because most people look the other way when it's something they agree with.

Congress has the power of controlling funding they choose to hand out, and this doesn't meet the test of being "irresistibly coercive" to states. And states really want that highway funding...

Wouldn't you expect to see some states to not comply then?

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.

> Wouldn't you expect to see some states to not comply then?

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.

It's still clearly bad law, a ruling that's more based in the power politics of Legistative vs Judiciary, and Federal vs State, than it is about logic of Constitutional analysis.

> isn't politics about the separation of powers

No.

Our political system involves some specific separations of powers, but politics is not fundamentally about thst.

I think it's a fundamental principle, but definitely not the only one. For example it is also a monopoly on violence.

> per drinking ages...

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.

Although it's true there are lingering effects from the repeal of prohibition, I don't believe the Supreme Court's ruling on the constitutionality of the national drinking age law drew on that. Rather, I think it was just the difference between directly dictating state law and making funds conditional on it.

https://en.wikipedia.org/wiki/South_Dakota_v._Dole#Decision

while this is about anti-commandeering doctrine, I often wonder if they should revisit the expansion of the commerce clause that came about by the famous "stitch in time that saved nine".

To me, how case law enshrines coerced decisions in the court, is something that should be addressed.

>I don't quite understand what they're saying here

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.

> Basically that Congress is able to pass a federal law to prevent sports gambling

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."

Essentially this is an extension of DCC principals. Where the state has power to regulate, but actively chooses not so to do, another government cannot usurp.

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.

> This is SCOTUS throwing down a gauntlet....This is the supreme court asserting itself,

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?

You seriously think that the various branches of the US government aren't in a constant power struggle? Such conflict underpins the very American concept of checks and balances. As I said in another post: This isn't about allowing people to gamble or not. This is isn't even about deciding who has the power to regulate gambling as both levels of government can if they want. This is the court reminding everyone who gets to referee in this game.

Foxes (as a species) and hawks (as a species) are in a power struggle for who gets to eat the rabbits, but this does not mean that hawks are coordinating with each other to do anything, nor that the hawks are trying to communicate anything to the foxes even though information flows between them.

You can always interpret any SCOTUS decision in terms of the specific and immediate outcomes, but it takes you to somewhat odd conclusions.

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.

This isn't such a case. The court is not basing its opinion on immediate outcomes. This isn't like them declaring something constitutionally protected so that people can begin doing it the next day. This is them saying that governments are able to regulate, but only via means dictated by the court. This isn't about returning power to the people. This is about shifting power between various branches of government. Some of those branches are more hamstrung than others. By moving power to a branch that is unable to use it (ie a legislature chronically unable to pass laws) the court asserts its own power as kingmaker.

> with the legislature so weakened it can exercise control over national policies

> 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.

> Like that a group of people who spent their entire academic and professional careers studying how subtle shifts in texts adjust balance of power

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.

> Uh, that's mostly not what judges spend their professional careers doing or what lawyers spend their academic careers doing.

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.

> 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?

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.

Your comment is completely untethered from any understanding of the Constitution and American federalist system. Authority and sovereignty in the U.S. flows upward from the people to the states and then to the federal government. The federal government likely cannot make it illegal to place a sports bet, which is why Congress was trying to commandeer the state governments to do it. Federal sovereignty is explicitly limited (particularly through the Bill of Rights) and not nearly as arbitrary and sweeping as you think it is. Even your sanctions example is wrong, the U.S. could not just make it illegal for Americans to gamble in Canada. Such a narrow provision would be unconstitutional, the federal government would have to demonstrate a national foreign policy reason (a legitimate function of the federal government) for it to pass such a law and have it survive court challenge.

> The federal government likely cannot make it illegal to place a sports bet

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.

I agree but that's something fairly short of the total federal prohibition discussed on this thread. (The other federal angle, used against otherwise legal offshore betting, is banning bank processing). I also suspect this court is looking to limit the current near-limitless boundaries of the Commerce Clause.

> The federal government likely cannot make it illegal to place a sports bet

That is my personal interpretation of the constitution. But if you read the supreme court decision, the majority opinion states that they can.

According to the current Cuban Assets Control Regulations, it is still, in most cases and circumstances, against the law for Americans to spend money in Cuba without a special license issued by the US Office of Foreign Assets Control (OFAC).

Reply on news.ycombinator.com