The Supreme Court is preparing to make a ruling that could effectively open the doors to legalized sports gambling. In Christie v. NCAA, the court will decide whether a federal statute that requires states to prohibit sports gambling violates the anti-commandeering doctrine of the Tenth Amendment.

The Professional and Amateur Sports Protection Act (PASPA) prohibits state governmental entities from sponsoring, advertising, operating, promoting, licensing or authorizing by law any betting, gambling, or wagering scheme based on amateur or professional athletic events. Essentially, it operates to prohibit state-sanctioned gambling. The act includes exceptions for state-sponsored gambling in Nevada and sports lotteries in Delaware and Oregon. And, interestingly enough, it included an exception for New Jersey if New Jersey enacted a scheme within one year of PASPA's enaction. New Jersey chose at that time not to enact a scheme.

The act was passed in 1992. All four professional sports leagues and the NCAA backed the legislation, and all of those same supporters are now respondents before the court in the present matter. PASPA was ostensibly passed to protect the integrity of athletic games, stop the spread of sports betting, and protect America's youth from the dangers of gambling. PASPA's continuing efficacy is highly questionable, though, in light of the explosion of popular daily fantasy leagues in recent years and the seeming ubiquity of illegal sports betting opportunities (especially via the internet). Regardless, PASPA remains in place, and New Jersey's legislation violates it. New Jersey admits as much in its challenge to the act's constitutionality.

The anti-commandeering doctrine prohibits Congress from requiring states to adopt a particular regulatory scheme when the federal government itself has failed to adopt such a scheme. Notably, only twice before has the Supreme Court struck down federal laws under the anti-commandeering doctrine: New York v. United States, 505 U.S. 144 (1992) (holding a “take-title” provision violated the Tenth Amendment because it required states to take title to radioactive waste by a specific date, if they did not adopt a federal program), and Printz v. United States, 521 U.S. 898 (1997) (holding that a federal law violated the Tenth Amendment because it required state officers to conduct background checks on prospective gun owners).

This battle has been simmering in the lower courts for years. It began when New Jersey enacted legislation in 2012 with the purpose of setting up a constitutional challenge to PASPA. When the sports leagues sued to enjoin the 2012 legislation, New Jersey raised its anti-commandeering argument. The district court ruled in favor of the leagues. The U.S. Court of Appeals for the Third Circuit affirmed, and the Supreme Court denied certiorari. New Jersey tried again in 2014 by enacting slightly different legislation, which repealed existing state regulations regarding sports betting. Again, the sports leagues sued, and the district court again held that the 2014 legislation also violated PASPA. And yet again, the Third Circuit affirmed. This time around, however, the Supreme Court agreed to review New Jersey's challenge. The court scheduled oral argument for Dec. 4.

New Jersey argues that, by requiring it to enact state laws to prohibit sports betting, PASPA is commandeering the state's law enforcement system. The state claims that PASPA violates its sovereignty. New Jersey argues that Congress is improperly using PASPA to require states to undertake an affirmative act. Moreover, in the course of its argument, New Jersey uses powerful empirical data to demonstrate the prolific nature of illegal sports betting in America, which prospers as a result of PASPA.

In response, the sports leagues—joined by the Department of Justice—assert that PASPA does not require New Jersey, or any other state, to implement any particular regulatory scheme regarding sports betting. It simply prohibits states from legalizing sports betting, from operating sports-gambling schemes, and from authorizing third parties to do so. The leagues emphasize that the “difference between permissible pre-emption and impermissible commandeering is that the former precludes certain state action, which the former commands it.” More simply, just because Congress limits states' policy options, that does not mean it is commandeering those states.

The Supreme Court rarely invokes the anti-commandeering doctrine to strike down federal legislation, and New Jersey faces an uphill battle in this case. But even though New Jersey has a 0-4 record in the lower courts (with one prior denial of certiorari), it was able to persuade at least four justices of the Supreme Court that this issue merited a closer look. The academic questions presented by the case, however, are overshadowed by a practical reality: If PAPSA is overturned, Congress can simply enact new legislation to ban sports gambling directly (rather than via state laws). By contrast, New Jersey is hoping that it can both overturn PAPSA and rely on the public's appetite for sports gambling to keep Congress on the sideline.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining Cozen O'Connor, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Leigh Ann Benson, an associate with the firm, focuses her practice on commercial disputes, complex litigation, class actions and cybersecurity.