U.S. Supreme Court building in Washington, D.C.

Earlier this month, in Murphy v. National Collegiate Athletic Association, the Supreme Court held that the Professional and Amateur Sports Protection Act (PASPA) was unconstitutional because it violated the 10th Amendment “capture doctrine.” The immediate result is that New Jersey will be able to implement its legislation enacted in 2012, after a state constitutional amendment, that authorizes betting on sports events at casinos and racetracks. The decision has much broader and narrower implications, however. It reiterates a principle governing federal-state relations in areas far removed from gaming, while at the same time leaving the door open to federal regulation of sports betting by a different legislative scheme.

Before discussing the implications of Murphy, note that the case was originally captioned Christie v. National Collegiate Athletic Association. Former Gov. Christie made the decision to defend New Jersey's sports betting legislation, knowing full well that only a decision by the United States Supreme Court would be able to overturn PASPA. He and the Division of Law share the credit for the victory with the state's special counsel.

The decision turns on what is known as the “capture doctrine,” an interpretation of the 10th Amendment that prohibits the federal government from directly commanding state authorities to enact or refrain from enacting legislation. It held that PASPA violated the capture doctrine because it prohibited states—with four grandfathered exceptions—from enacting legislation that would legalize betting on sports events. While Congress might have the power to regulate an activity by federal legislation directly binding on individuals, Murphy holds, it cannot prohibit the state from making that activity legal under state law.

Murphy reiterates a broader principle, first stated in Printz v. United States (1997), that “the federal government may not command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz held unconstitutional a federal statute requiring states to perform background checks in connection with handgun licenses. As has been pointed out in news reports, Murphy's reiteration of Printz has immediate consequences both for state legalization of recreational drugs, and for state and local refusal to cooperate in federal enforcement of the immigration laws. Under the Supreme Court's current view of federal-state relationships, a state may engage in passive-aggressive noncooperation with federal policies it disagrees with, as some states did during Prohibition.

There are, however, three limits to state disagreement with federal policy. The first is that, under the Supremacy Clause, a state may not actively obstruct or interfere with the enforcement of a federal law it disagrees with. This doctrine goes back to Ableman v. Booth (1858), which invalidated northern “personal liberty” laws that conflicted with the Fugitive Slave Act, and it remains good law today. The second is that Congress may purchase state cooperation that it cannot command if it puts explicit and relevant conditions on a state's receipt of a federal subsidy. We recently editorialized on the contours of this doctrine. (“Lawyers Wisely 'Took the Tenth,'” May 2017). The third, of course, is that the Supremacy Clause allows the federal government to directly regulate conduct within its constitutional powers by using its own resources. State legalization of marijuana, for example, does not affect its illegality under federal law. Nor would New Jersey's sports betting statutes prevail against legislation under the Commerce Clause that prohibited individuals and businesses from accepting wagers on sports events that affect interstate commerce. Murphy concludes by leaving the policy issue of whether to enact such legislation to Congress.

Finally, Murphy reminds us that the liberal-conservative analysis of both structural constitutional issues of Supreme Court personalities is often simplistic. Historically states' rights was often viewed as the last resort of racists and other obscurantists to resist a progressive federal government, and the Rehnquist Court's revival of the 10th Amendment attracted a good deal of criticism from that perspective. But political alignments change, and the 10th Amendment turns out to have uses perhaps undreamed of 20 years ago.

Larry Lustberg and Edwin Stern recused from this editorial.