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Tuesday, January 17, 2017
The NJ Sports Betting "Invitational": My Quick Thoughts on Today's SCOTUS Order

For the case that has had nearly everything—e.g., three divided circuit opinions in succession and the rarity of en banc rehearing—we shouldn’t have been all that shocked by the latest twist and turn in the New Jersey sports betting case. The "invitation" to the Solicitor General can only be viewed as a positive for New Jersey's chances. After all, if this case were not “cert-worthy,” the Supreme Court would have just summarily denied the petition without even bothering to ask for the Solicitor General’s position. This “invitation” may very well signify that one or more of the Justices believe the Third Circuit went too far in Christie II. Contrary to popular belief, this case was never a ‘replay' of Christie I—the 'federalism' concerns raised in the later case are far more pronounced. In the Christie I case, New Jersey’s anti-commandeering argument was directed to PASPA’s 'negative command' forbidding states from licensing or authorizing sports wagering. That was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of “affirmative activity,” such as taking title to radioactive waste or performing background checks on prospective handgun purchasers. But this time around, New Jersey’s commandeering argument addresses the flip-side of PASPA: its “affirmative requirement” compelling states to prohibit sports wagering (and thus blocking states from from "repealing" their sports betting laws). This view of PASPA fits more neatly into the Supreme Court’s anti-commandeering jurisprudence, and, as such, New Jersey’s prospects for Supreme Court review are arguably enhanced. For the first time, we had a federal appeals court preventing a state from “repealing” its own laws, after initially opining that a repeal would not violate PASPA. That represents a much greater encroachment on state sovereignty.

I think we may have actually underestimated Donald Trump’s impact on sports betting. Much of the recent speculation centered on how he could push for federal legislation, a process that could take up to several years to accomplish. But now, Donald Trump’s impact on the sports betting legalization debate will be immediate—and could be decisive. His choice of U.S. Solicitor General could end up tipping the scales in favor of a cert. grant, particularly if the new SG (whomever that may be) recommends that the issue be resolved by the Supreme Court. This is why the Solicitor General is often jokingly (and sometimes-not-so jokingly) referred to as the “Tenth Justice.” This is probably the most important brief that will be filed in the nearly five-year history of the New Jersey sports betting litigation. The Solicitor General’s brief will likely include a recommendation as to whether certiorari should be granted or denied, and, ultimately, who should win the case on the merits. If the  SG recommends that cert be granted, the odds for New Jersey improve considerably, especially if the SG also questions the constitutionality of PASPA or asserts that the New Jersey partial repealer does not violate the federal law. It is worth noting that nearly three years ago, then-Solicitor General Verrilli submitted a brief to the Supreme Court in which he asserted that New Jersey is free to repeal its sports betting laws “in whole or in part’ without violating PASPA. While the DOJ tried to wiggle out of this statement during the Third Circuit oral argument earlier this year, the Supreme Court’s invitation presents an opening for the new SG to ‘double-down’ on that prior statement by making it an unequivocal view. Trump will have the ability to name a solicitor general who espouses this view.  If Donald Trump feels strongly enough that sports betting should be legal and expanded nationally, he now has three immediate vehicles for accomplishing this: (1) his SG appointment; (2) his Attorney General appointment; and (3) his Supreme Court nominee. All three appointments could have significant ramifications for sports betting: the Solicitor General, in recommending that cert be granted; the Attorney General, in electing not to bring PASPA actions against state governments that legalize betting on sporting events not involving the five major sports leagues and the current plaintiffs in the case; and the new SCOTUS Justice, who could be one of the four ‘cert’ votes, thereby enhancing the prospects for review, and then ultimately siding with New Jersey on the merits. If Donald Trump is truly ‘dialed’ in on this issue, he might just have the ability to influence the sports betting legalization debate in ways that were not even contemplated until now.


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