New Jersey Fights Back for Supreme Court Sports Betting Review

On Tuesday, June 6, 2017, New Jersey and the state’s Thoroughbred Horseman’s (NJHTA) association made a final push to convince the U.S. Supreme Court to review whether a federal law, PASPA, can prevent New Jersey from repealing its laws banning sports betting in its state. Also referred to as the Bradley Act (the name of the law’s main sponsor, Sen. Bill Bradley), PASPA was intended to stop the spread of sports betting in the United States. Passed in 1992, PASPA stopped new states from legalizing sports betting, but exempted states that already had sports betting on the books. These states include Nevada, Oregon, Delaware, and Montana.

In May, the acting U.S. Solicitor General, Jeffrey Wall, delivered what many believed was the death blow to New Jersey’s challenge to the law’s validity. The Supreme Court asked Mr. Wall in January to submit a brief on the merits of New Jersey’s case, and he recommended that the Supreme Court should not hear the state’s sport gambling cases. Specifically, the brief stated that the case did not deserve the attention of the Supreme Court, as New Jersey had not raised valid constitutional problems with PASPA.

New Jersey and NJHTA filed two petitions for certiori with the Supreme Court, and asked the court to take their cases over the constitutionality of a federal sports betting ban. This has been referred to by some as the “Wild West” scenario, as it would effectively be a full repeal of all state laws against sports betting.

The solicitor general’s brief states that “[i]f New Jersey wishes to repeal its prohibition on sports gambling altogether and thereby remain silent with respect to such gambling . . . PASPA does not stand in its way.” However, the state and NJHTA do not agree with the solicitor general’s assessment. The two briefs filed argue that the solicitor general’s brief goes against prior arguments made by the Third Circuit that a repeal cannot be the same as an authorization, because “virtually any other license or authorization could be reframed as a partial repeal.” Last year, the Third Circuit upheld a 2014 ruling that found the state’s attempt at legalizing sports gambling violated PASPA.

This fight began in 2011, when New Jersey voters overwhelmingly approved amending the state constitution to allow sports betting. Lawmakers passed a law which allowed sports betting in the state, but the law did not allow patrons to wage bets on games that involved New Jersey colleges or college games played in the state. One of the arguments in the state and NJHTA’s brief was that the ban on sports betting is incompatible with decisions that allow states to legalize marijuana.

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