138 S. Ct. 1461 (2018)
In 1992 Congress enacted the Professional and Amateur Sports Protection Act, which made it unlawful for a state or its subdivisions to sponsor, operate, advertise, promote, license, or authorize by law or compact any lottery, sweepstakes, or other betting scheme based on competitive sporting events.1 A parallel provision addressed private persons acting pursuant to state law.2 At enactment most states prohibited sports gambling, and the statute contained grandfather provisions allowing limited existing operations in Nevada, Delaware, Oregon, and Montana.3
In 2011 New Jersey voters approved a state constitutional amendment empowering the legislature to legalize sports gambling at Atlantic City casinos and horse racetracks.4 The legislature responded in 2012 by enacting a statute that affirmatively authorized such gambling in those venues.5 The National Collegiate Athletic Association and four major professional sports leagues sued New Jersey officials in federal district court.6 The district court enjoined the 2012 law and the Third Circuit affirmed.7
In 2014 the New Jersey Legislature passed a new statute framed as a partial repeal that eliminated criminal prohibitions on the placement and acceptance of sports wagers by persons twenty-one or older at casinos and racetracks.8 The law was accompanied by legislative findings that the repeal would not amount to sponsorship, operation, advertisement, or promotion under federal law.9 The same plaintiffs immediately filed a new action in the District Court for the District of New Jersey, which again enjoined the law, and the Third Circuit sitting en banc affirmed.10
New Jersey officials petitioned for certiorari, and the Supreme Court granted review.11 The district court had found that implementation of the 2014 law would cause a substantial increase in sports gambling within the state, producing concrete harms to the leagues including loss of fans, risk of athlete corruption, and damage to the integrity of their games.12
Whether petitioners have standing to challenge the Professional and Amateur Sports Protection Act provision prohibiting state authorization of sports gambling?13
Article III requires a plaintiff to show an injury in fact that is concrete and particularized, fairly traceable to the defendant's conduct, and redressable by a favorable judicial decision.14
Yes. The Professional and Amateur Sports Protection Act was enacted by Congress in 1992 to bar states from sponsoring, operating, advertising, promoting, licensing, or authorizing sports gambling schemes, while preserving limited grandfathered operations in four states.15 In 2011 New Jersey voters approved a constitutional amendment authorizing the legislature to legalize sports gambling at Atlantic City casinos and horse racetracks, leading to the 2012 statute that affirmatively authorized such activity and was promptly enjoined by federal courts.16 After that injunction, the New Jersey Legislature in 2014 enacted a new statute framed as a partial repeal that eliminated criminal penalties for sports wagers placed by adults at casinos and racetracks, prompting the same plaintiffs to file a fresh federal action.17
The District Court found that the 2014 repeal would produce a substantial increase in sports gambling within the state.18 The National Collegiate Athletic Association and the four professional leagues established standing because the District Court found that implementation of the 2014 Law would cause a substantial increase in sports gambling in New Jersey.19 That increase would inflict concrete harms on the leagues, including loss of fans, risk of athlete corruption, and damage to the integrity of their games.20 The injury is directly traceable to the repeal of prior prohibitions and would be redressed by an injunction against enforcement of the 2014 Law.21
Petitioners have standing to challenge the Professional and Amateur Sports Protection Act provision.22
Whether a state law that partially repeals criminal prohibitions on sports gambling constitutes an authorization of that activity under the Professional and Amateur Sports Protection Act?23
When a state completely or partially repeals prior laws banning sports gambling, the repeal authorizes the activity under PASPA. This is because it both permits the conduct and confers the right or authority to engage in it against the backdrop of earlier prohibition.24
Yes. New Jersey's 2014 Law partially repealed the state's criminal prohibitions on the placement and acceptance of sports wagers by persons twenty-one years of age or older at casinos and racetracks.25 Against the historical backdrop in which nearly all states banned sports gambling at the time of PASPA's enactment, this selective repeal both permitted the activity and endowed the specified operators with the authority to conduct it, thereby constituting authorization under the statute.26
A state law that partially repeals criminal prohibitions on sports gambling constitutes an authorization under the Professional and Amateur Sports Protection Act.27
Whether the Professional and Amateur Sports Protection Act provision prohibiting states from authorizing sports gambling violates the anticommandeering doctrine?28
The anticommandeering doctrine, rooted in the Tenth Amendment and the constitutional structure of dual sovereignty, prohibits Congress from issuing direct orders to state legislatures, whether by compelling enactment of legislation or by forbidding states from enacting or repealing laws.29
Yes. PASPA's prohibition on state authorization of sports gambling unequivocally dictates what a state legislature may and may not do by commanding legislatures not to authorize such activity.30 This direct control over the state legislative process is indistinguishable from the federal commands invalidated in New York v. United States and Printz v. United States and therefore violates the anticommandeering doctrine.31
The Professional and Amateur Sports Protection Act provision prohibiting states from authorizing sports gambling violates the anticommandeering doctrine.32
Related opinions on this issue
Joined by Justice Sotomayor
Justice Ginsburg dissented from the invalidation of the anti-authorization provision.33 She argued that Congress possesses authority under the Commerce Clause to regulate sports gambling nationwide.34 In her view PASPA constitutes a valid regulation of both state and private conduct as an integral component of that federal scheme rather than an impermissible command to state legislatures.35
She concluded that the anticommandeering doctrine does not require striking down the provision and would have affirmed the judgment of the Court of Appeals.36
Whether the Professional and Amateur Sports Protection Act provision prohibiting states from licensing sports gambling violates the anticommandeering doctrine?37
The anticommandeering doctrine forbids Congress from issuing direct orders to state legislatures. A federal prohibition on state licensing of an activity is no different in kind from a prohibition on state authorization.38
Yes. PASPA's prohibition on state licensing of sports gambling schemes issues a direct command to state legislatures not to enact licensing laws.39 The 2014 New Jersey statute, by repealing criminal penalties for sports wagers at licensed casinos and racetracks, would have permitted precisely the kind of state licensing activity that the provision forbids. Because this provision suffers from the same constitutional defect as the anti-authorization provision, it likewise violates the anticommandeering doctrine.40
The Professional and Amateur Sports Protection Act provision prohibiting states from licensing sports gambling violates the anticommandeering doctrine.41
Whether the Professional and Amateur Sports Protection Act provisions prohibiting state authorization and licensing of sports gambling are severable from the remainder of the statute?42
A statutory provision is not severable if Congress would not have enacted the remaining provisions had it known the challenged provisions were invalid. This is particularly true where severance would produce a regulatory scheme sharply different from the one Congress designed.43
No. The provisions prohibiting state authorization and licensing are not severable because PASPA represented a carefully crafted compromise that protected the integrity of sports while allowing limited existing operations in a few states.44 Removing the anti-authorization and anti-licensing provisions would leave a regime in which states could authorize private casino sports gambling yet remain barred from operating their own lotteries. That result is sharply different from the balanced scheme Congress enacted, and therefore no provision of PASPA is severable from the provisions directly at issue.
No provision of the Professional and Amateur Sports Protection Act is severable from the provisions directly at issue.45
Related opinions on this issue
Justice Thomas joined the Court's opinion but wrote separately to express his growing discomfort with modern severability precedents.46 He observed that early American courts lacked a severability doctrine and simply declined to enforce unconstitutional statutes in the case before them.47 He noted that the current approach requires judges to speculate about hypothetical congressional intent, which may conflict with traditional limits on judicial power.48
He suggested that the Court reconsider these precedents in an appropriate future case.49
Justice Breyer concurred in part and dissented in part.50 He agreed that the provision prohibiting private actors from sponsoring or operating sports gambling pursuant to state law is severable from the challenged portion of PASPA.51 In his view that provision can stand alone and directly regulate individuals to achieve Congress's objective of halting the spread of sports gambling without impermissibly commandeering the States.52
He therefore joined all but Part VI-B of the majority opinion.53 Breyer emphasized that the two subsections of PASPA were designed to work in tandem, with subsection (2) applying federal policy directly to individuals while the challenged part of subsection (1) attempted to force States to prohibit the activity, thereby shifting enforcement burdens. Because subsection (2) regulates private conduct directly and respects Congress's commerce power, it survives independently.
Joined by Justice Sotomayor
Justice Ginsburg dissented from the severability holding.54 She contended that the Court should have severed only the offending authorization and licensing prohibitions and left the remainder of PASPA intact.55 In her view Congress would have preferred the prohibitions on state and private operation of sports gambling schemes to remain in effect rather than have no statute at all.56
Deleting the alleged commandeering directions would free the statute to accomplish just what Congress legitimately sought to achieve: stopping sports-gambling regimes while making it clear that the stoppage is attributable to federal, not state, legislative action.