COMMENTARY: Christie’s revenge: Sports betting challenge will prevail

You have to give outgoing New Jersey Gov. Chris Christie credit for perseverance: the long-fought battle to bring sports betting to New Jersey appears to have swung in the supporters’ direction after the U.S. Supreme Court agreed to accept an appeal from a Federal circuit court. If New Jersey wins the case, titled Christie v. National Collegiate Athletic Association (NCAA) et al., it will be the end of the “line” for Delaware’s East Coast monopoly on legalized sports wagering.

The 1992 Professional and Amateur Sports Protection Act (PASPA) forbade states from passing laws regulating sports betting.,Given a year to op-in, three states joined exempted Nevada, including Oregon, Montana, and Delaware. The law was enacted in the shadow of a point shaving scandal and with the support of all professional sports leagues. At the time, 56 percent of Americans endorsed Federal and state laws outlawing sports wagering.

Dr. Samuel B. Hoff

New Jersey under Christie’s leadership began a movement to reverse the latter law and enact sports betting within the state. In 2011, New Jersey citizens supported a referendum authorizing the state legislature to permit limited sports betting, an action taken in 2012. Immediately, the law was challenged in court by the professional sports leagues and the U.S. Justice Department. In 2014, New Jersey again sought to permit sports betting when its state legislature passed a law to repeal its prohibition, but was rebuffed anew in Federal court. However, earlier this fall the U.S. Supreme Court accepted a writ of certiorari appeal from New Jersey and heard oral arguments on the controversy on Dec. 4. A ruling on the matter is expected by the end of the next session in June 2018.

Although New Jersey’s legal strategy is based partly on a 1992 case, New York v. U.S., the more general point is that PAPSA violates the 10th Amendment of the Constitution in that it forces the Garden State to adhere to a federal law which is against its wishes. That argument was backed by 18 states which filed friend-of-the-court briefs on behalf of New Jersey.

Since PASPA was first enacted, a number of factors have changed dealing with sports betting. First, the states have been hurting budget-wise since the Great Recession of 2008-09 and apparently want in on the estimated $400 billion in annual sports wagering which transpires illegally “under the table.” Presently, forty-eight states run general lotteries and 40 states have casinos.

Second, American public opinion on the issue has reversed since the early 1990s, with 55 percent of U.S. citizens now in favor of legalized sports betting. Third, the position of professional sports teams has softened, particularly with the moving of NHL and NFL franchises to Las Vegas along with Major League Baseball’s aggressive marketing of fantasy league games. Fourth, some gambling experts assert that legalizing sports betting will make it easier to detect when cheating or rigging actually does occur.

Delaware’s experience with sports betting has probably helped other states to get off the fence on the issue. Recent figures reveal that $7 million in sports betting revenue went to the General Fund in FY 2015 from $38 million in total legal betting. Last year, the overall take from sports betting at authorized sites in the First State climbed to $46 million. As one state official commented, “that funds a lot of school teachers and cops,” certainly needed and worthy outlets for such spending.

Although it is always risky to predict Supreme Court case outcomes from the dynamics of oral arguments, questions and comments by justices at the Dec. 4 event demonstrated a skeptical view of PASPA, with moderate Justice Anthony Kennedy and liberal Justice Stephen Breyer leaning toward New Jersey’s position. Given that this controversy is a federalism matter which is normally backed by judicial conservatives, that would mean that Chief Justice John Roberts along with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch will rule on behalf of the state.

Conversely, comments by the female justices on the court — all with a liberal leaning — connoted their opposition to overturning the status quo. The tea leaves read 6-3 in favor of New Jersey’s stance, which would be the beginning of the end for Delaware’s stranglehold on sports betting east of the Rockies.

Rather than a broad ruling overturning PASPA, current trends and the specter of related federalism-based issues such as legalization of marijuana, sanctuary cities, and physician-assisted suicide inundating the Supreme Court point to a narrow decision which would uphold New Jersey’s recent law reversing its ban on sports betting. That would likely lead to a bill being introduced in Congress to repeal PASPA at the federal level, and U.S. Rep. Frank Pallone from New Jersey is prepared to do just that if the latter scenario plays out.

The attorney who argued New Jersey’s position on sports betting at the U.S. Supreme Court was Theodore Olson, whose experience in representing litigants at the high court is unparalleled in contemporary American legal circles. Granted, Olson has lost a few times, but I wouldn’t wager against him here. It looks like Chris Christie will finally have something to crow about, albeit as a private citizen rather than as governor.

Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies Program Director at Delaware State University. He has taught and published extensively on constitutional law issues.

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