The four major pro sports leagues, the NCAA, and now the Department of Justice, will resume their case against the state of New Jersey when both sides present oral arguments on Thursday in U.S. District court.
To recap: New Jersey wants legalized sports betting in the state. The leagues and the NCAA feel legal sports betting will poison the integrity of sports and they're using 1992's Professional Amateur Sports Protection Act (PASPA) to uphold that viewpoint.
The Department of Justice intervened in January on the leagues' behalf to uphold the law, which permits sports betting in only four states - Nevada, Montana, Oregon and Delaware.
That, says New Jersey, is unconstitutional. And Griffin Finan, a Washington, D.C. based lawyer for Ifrah Law, which focuses on gaming issues, says it's the only law like it in the U.S. that gives special exceptions for a small handful of states.
On Friday New Jersey filed its brief outlining its position to Judge Michael Shipp, which states PASPA is unconstitutional for three primary reasons:
1. PASPA Impermissibly Commandeers The Legislative Authority Of The States
2. PASPA’s Lack of Uniformity Exceeds Congress’s Commerce Clause Power by Depriving States of Equal Sovereignty
3. PASPA Violates Due Process and Equal Protection Rights
"Theory No. 1 is the most compelling argument of the three," writes Brad Polizzano
, a tax attorney in New York who also focuses on gaming issues. "It’s clear New Jersey feels the same, as the substantial majority of its brief focuses on the commandeering issue."
Polizanno says Commandeering comes down to a 10th Amendment issue: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
And that's where the two sides disagree in this case.
Polizzano asks, "Does the 10th Amendment merely prohibit federal statutes that compel the states to take some affirmative action, as the DOJ argues? Or, as NJ argues, does it also extend to federal statutes that do not necessarily compel the states to do anything, but instead prevent them from taking some action?"
The judge has no precedent to compare this case to so he has his hands full. Either way, both Finan and Polizzano agree: this case is headed for the Supreme Court on appeal, whichever way the judge ultimately rules.