This case tackles the difference between commandeering and pre-emption. The federal government can pre-empt laws of the states, but it cannot take over the state and force states to do its bidding. If the federal government passes a law that prevents from repealing or modifying their laws banning sports betting, is that pre-emption or is that commandeering?
The legal issue presented is: Does a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of states?1
In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA). This law effectively banned sports betting, with a few limited exceptions. Generally, the law made it illegal for government entities to sponsor or private entities to operate a sports-betting scheme.
In 2012, New Jersey passes a law to authorizing sports betting and argued that PASPA commandeers states to enforce the federal ban on sports betting. The Third Circuit held that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied cert on this decision.
So, in 2014, the New Jersey state legislature passed a law that repealed their prior prohibition on sports betting. The Third Circuit held that previously, NJ tried to expressly authorized sports betting. Now, New Jersey is trying to get around the Third Circuit’s prior law by couching it in terms of a “repeal.” That does not pass muster and New Jersey had the same problems it had with the 2012 law. The Supreme Court took cert on this issue.
New Jersey is arguing that in the 2012 case, the Government represented to the third circuit that if NJ wanted to, they could repeal their law, which is exactly what New Jersey did.