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Pallone Files Amicus Brief with Supreme Court in Support of New Jersey Sports Betting Case

September 5, 2017
Press Release

Washington, D.C. – Congressman Frank Pallone, Jr. (NJ-06) today filed an amicus brief with the U.S. Supreme Court in support of the Petitioners in the case – the State of New Jersey and the New Jersey Thoroughbred Horsemen’s Association, Inc. The nation’s highest court is expected to review a decision by the Third Circuit Court against the state. 

The case before the Supreme Court centers around a 1992 federal law entitled the Professional and Amateur Sports Protection Act (PASPA), which prohibits sports betting nationally with certain exceptions.  In November 2011, New Jersey residents supported a statewide referendum to amend the state constitution to authorize the legislature to pass legislation allowing sports gambling. The New Jersey Legislature subsequently passed a law that would only allow sports gambling at casinos in Atlantic City and state racetracks. Soon after, a handful of professional and amateur sports organizations sued under PASPA, claiming the New Jersey law would cause them irreparable financial and reputational harm. 

After the Third Circuit Court decided in favor of the sports organizations, the New Jersey legislature passed another law in 2014 in response to the court’s findings.  Again, the sports organizations sued, and the Third Circuit once again ruled against New Jersey.     

“The State of New Jersey and its citizens are being coerced by Congress, against their will, to enact legislation governing private conduct – namely, sports wagering – over which it shares power under the Commerce Clause with the Federal Government,” Pallone concluded in his brief to the Supreme Court on page 29.  “By ordering New Jersey to maintain prohibitions on sports gambling that its State legislature has considered and repealed before, Congress is coercing the State of New Jersey to govern according to Congress’s instructions.  As this form of coercion is unconstitutional pursuant to the guarantees to the States in the form of the Tenth Amendment, this court should hold that PASPA is unconstitutional.”

In his brief, Pallone argues that PASPA unlawfully commands States, such as New Jersey, which have opted to deregulate enforcement and criminalization of persons engaging in sports wagering, to sanction their citizens.  While States cannot stop the Federal Government from enforcing federal law within their territory, the Federal Government cannot command the State to create a law criminalizing the conduct, Pallone continued.

Beyond the Constitutional question, Pallone also writes that the 2014 New Jersey repeal law does not violate PASPA, and does not expressly preempt all state action. 

“The 2014 Repeal Law carefully modified and repealed State sports betting prohibitions and restrictions so as not to conflict with PASPA’s negative requirements,” Pallone wrote on page 12 of the brief. “The Repeal law permits sports wagering to occur at certain venues but stops short of affirmatively authorizing or licensing the State or some other ‘governmental entity,’ or a ‘person’ to engage in conduct prohibited by PASPA.”

Despite being illegal in most states, traditional and internet sports betting is widespread, and functions almost exclusively through organized crime. Of the nearly $400 billion that is spent annually in the U.S. on sports betting, 99 percent is illegal.

In May, Pallone sent a letter to the Solicitor General strongly recommending that he endorse the review by the U.S. Supreme Court.  While the Solicitor General did not move ahead with that recommendation, the Court decided to review the Third Circuit Court’s decision.

The U.S. Supreme Court is expected to hear oral arguments in the New Jersey sports betting case as early as October.