The Supreme Court struck down a federal law on Monday that effectively prevented the state of New Jersey from legalizing sports betting. Though the Court’s decision in Murphy v. NCAA produced some disagreement about how much of this federal law needs to be excised, no justice rose to the statute’s defense.
Indeed, Murphy was a fairly straightforward application of a doctrine the Supreme Court devised in 1992. Justice Samuel Alito’s majority opinion contains few surprises for anyone familiar with the Court’s approach to the balance of power between the federal government and the states. The federal law at issue in Murphy was poorly drafted and seemed designed to run afoul of a longstanding states’ rights doctrine.
That doctrine, moreover, has implications well beyond the realm of sports betting. Murphy isn’t simply good news for Atlantic City. It also bolsters the legal case against the Trump administration’s crackdown on so-called “sanctuary cities.”
Murphy concerns the federal Professional and Amateur Sports Protection Act (PASPA), a very odd statute which “makes it ‘unlawful’ for a State or any of its subdivisions ‘to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on’ competitive sporting events.”
What makes this law unusual is that Congress typically does not forbid state lawmakers from taking a particular action. If Congress wants to ban sports betting, it can simply ban sports betting, and instruct federal agents to enforce that law. Banning state lawmakers from authorizing sports betting is a strangely roundabout way of accomplishing a similar goal. And it is also, as Justice Alito explains, unconstitutional.
The reason why stems from the Supreme Court’s “anticommandeering” doctrine, which prohibits Congress from effectively drafting states into federal law enforcement. As the Court held in New York v. United States, “we have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.”
“Where a federal interest is sufficiently strong to cause Congress to legislate,” New York explained, “it must do so directly; it may not conscript state governments as its agents.”
The core holding of Murphy is that the anticommandeering doctrine applies equally to federal laws requiring state officials to take a particular action and federal laws prohibiting state lawmakers from enacting a particular law. “Congress,” Alito explains, “cannot issue direct orders to state legislatures.”
As a practical matter, it’s unclear whether Murphy will lead to an explosion of legalized sports betting. Congress still retains the power to ban such betting directly, so it could attempt to revive PASPA with a more artfully drafted statute that would achieve many of the same goals. And states may still choose to ban sports betting themselves.
Murphy however, should stand as a warning to the Trump administration that a major prong of its effort to crack down on immigrants is unlikely to prevail in court.
The federal government employs fairly few law enforcement officers. U.S. Immigration and Customs Enforcement (ICE), for example, has only about 20,000 employees, and not all of these employees carry a badge and a gun. The New York Police Department, by contrast, employs more than 34,000 uniformed officers.
Because there are relatively few federal officers empowered to target undocumented immigrants, the Trump administration wants to conscript state and local police forces into the broader effort to round up and deport such immigrants. The term “sanctuary cities” refers to municipalities that do not permit their police force to assist in such an effort. ICE may still lawfully target immigrants in such sanctuary cities, but they must use their own resources will not receive help from local cops.
Under the anticommandeering doctrine, state and local governments have an absolute right to refuse such assistance to ICE agents. Moreover, while the anticommandeering doctrine does permit the federal government to withhold certain federal grant funding from sanctuary cities, the Trump administration’s efforts to do so have, at least so far, been amateurish and unlikely to survive in the federal courts.
Murphy is a reminder that these limits still apply — and that the Court’s right flank is unlikely to create an exception to the anticommandeering doctrine solely because Donald Trump wants one. Though the bipartisan vote in Murphy suggests that many of the Court’s liberals are at peace with the anticommandeering doctrine, the doctrine was originally advanced by conservatives.
By cracking down on sanctuary cities, in other words, Trump isn’t simply asking the Court to ignore longstanding doctrine. He’s asking his allies on the Court to ignore a doctrine that they and their allies helped bring to life.
One could say the Trump administration is facing some long odds.