When the U.S. Supreme Court overturned the federal ban on sports gambling on May 14, it did more than allow states to provide for online and casino betting in Massachusetts on baseball, football, basketball, and other sports. It may also have opened the way for a surge in state and local authority.
The Professional and Amateur Sports Protection Act of 1992 prohibited most states — Nevada was the stellar exception — from expanding gambling into sports teams and players. New Jersey challenged the law, and in Murphy v. NCAA, the court overturned the law by a vote of 6 to 3.
The three major casinos in the Boston Harbor, Springfield, and Plainridge have indicated that they surely want their guests to participate in this level of gaming. DraftKings, the Boston-based online gambling outfit, wants to expand its reach to all states. How the ruling and subsequent action by Massachusetts will affect the proposed Aquinnah bingo parlor under the auspices of the Wampanoag Tribe is unclear: The discussion to date has focused only on casinos and online gambling, not bingo.
Gov. Charlie Baker and the legislature will have to work together to make this happen. But the Boston Globe has reported that House Speaker Robert A. DeLeo seemed skeptical, saying, “You have the question of integrity of the sport.” Senate President Harriette Chandler stated that moving forward will have to be done “thoughtfully and carefully.” The governor noted that “we’ll be talking to our colleagues in the legislature” about this soon.
But what is the ultimate impact of the ruling on the states, and secondarily the Vineyard?
The court ruled that the federal government had violated the “commandeering” rule, namely Congress cannot force the states to take or withhold action, even if they object. Two precedents highlight the commandeering rule: New York v. United States (1992), when Congress “commandeered” the states to dispose of radioactive waste (the court overturned the command); Printz v. United States (1997), when local law enforcement chiefs of police were “commandeered” into overseeing background checks for handgun purchases until the federal agencies could create mechanisms to do them (the court overturned the requirement).
These are all cases in federalism: the relationship of the state governments to the federal government under the structure of the Constitution.
At least three controversial areas are now open for judicial debate.
First, immigration, especially so-called sanctuary cities and the requirement that local law enforcement carry out federal immigration law in either arresting or holding suspected undocumented immigrants until authorities from Immigration and Customs Enforcement can pick them up. The Trump administration has threatened to cut off federal aid to cities, towns, and states that fail to perform these tasks, but is this another example of federal attempts to “commandeer” the states (or localities) to do its will?
Under Murphy, the requirement may fail.
Second, guns. What if Congress passed a law requiring what is called “concealed carry reciprocity,” which would mean that if a state allowed gun owners to possess a license to carry a concealed handgun, it would mean that all states would have to recognize that right, even if it had very strict gun safety laws? Twelve states currently allow concealed carry without a permit, and seven require permits after training. Massachusetts may issue permits for concealed weapons under certain conditions, with restrictions. But the commonwealth rarely issues them. Under Murphy, the requirement may well fail as well.
Finally, marijuana. Many legal scholars have already commented on whether the federal government can “commandeer” the states to enforce federal marijuana laws. The ruling may well throw an earlier decision into doubt: the one when the court ruled that the Controlled Substances Act of 1970 placed marijuana on its Schedule I list of the most abusive of substances. The case was Raich v. Gonzales (2005).
Justice Samuel Alito, in writing the opinion for the Court in Murphy, ruled that “the anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.” And even more, he noted that “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.”
There may well be other fascinating areas where the states (and localities) may maintain more than an arms-length distance from the United States government. If in fact the court has now developed a new states’ rights doctrine, then we can all be prepared to see federal power diminish when federalism cases come before it.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.