After New Jersey presented its case, ultimately regarding the constitutionality of the Federal ban on sports wagering, to the Supreme Court of the United States (SCOTUS), most court watchers voiced optimism that SCOTUS would rule the ban unconstitutional and the ruling would likely come out in the March/April time frame.
As we are now mid-way through April and what was presumed to be a simple ruling has not been forthcoming, some are starting to get anxious about the delay, if in fact there is a delay, and wonder what might be holding it up.
Taking this question to a couple of attorneys familiar with Supreme Court processes, rulings and history, there were a range of speculative answers running from the matter being of such low priority it is on the bottom of the work pile to an interesting interpretation of the core issues.
When New Jersey presented its case, it fundamentally made the argument that the Federal Government exceeded its constitutional authority when it required the enforcement of the sports betting ban be placed on the state. The Constitution basically places the burden of enforcement of federal laws on the Federal Government, so by placing the burden of enforcement on the state Congress may have exceeded its constitutional authority.
Begging the question, should the federal ban be deemed unconstitutional because the law as passed put the enforcement mechanism on the state, or should the ban stand but the enforcement mechanism be ruled unconstitutional, such that the ban would be constitutional but without any enforcement tools, making the ban effectively a toothless law.
There are enough latitudes in the Constitution that pending how a law is characterized, Congress can insert itself into anything it wants, so SCOTUS is not likely to over turn the sports wagering ban as the Federal Government intruding on states’ rights.
However, there is long tried and upheld history of SCOTUS rejecting any Federal Government efforts to place the burden of enforcement of a federal law on the state. Most of the time when the Federal Government passes a criminal law the states usually pass parallel laws such that the state can also pursue enforcement for its own purposes; but not always, such as issues found around the legality of marijuana.
So, what would happen if SCOTUS did rule the ban on sports wagering was constitutional but the enforcement tool was not constitutional, and states wanted to allow sports wagering? Congress would have to act on correcting the enforcement language of the law or repeal the ban or rewrite the law entirely.
However, until Congress did correct or repeal the law, the states could do whatever they wanted, except most state gaming laws have a provision that requires their gaming license holders to be compliant with federal laws, the breaking of which would be deemed an unsuitable method of operation and thereby putting the gaming operator at risk of fines or loss of license from their state or regulatory jurisdiction.
For example, let’s assume SCOTUS does rule the ban is constitutional, but the enforcement method is not. New Jersey could then allow their casinos to accept sports wagers and do so until such future date as Congress were to correct or repeal the ban on sports wagers.
However, if those New Jersey casino sportsbooks wanted to pool with Nevada sportsbooks, as long as Nevada has a prohibition on its licensees from breaking federal laws, Nevada sportsbooks would not likely do so unless and until Nevada amended its laws to allow such activity.
Further, if SCOTUS did rule as suggested, it would make it very difficult for casino operators with resorts in both New Jersey and Nevada to operate a book in New Jersey as a New Jersey book would be violating Federal Law (though a toothless one) and thereby violating Nevada’s requirement that its gaming licensees comply with the federal law, until Congress repeals the ban on sports wagering.
Hopefully SCOTUS will deem the ban on sports wagering unconstitutional and the above example will never be an issue but as so many other topics, such as legalized marijuana, are also floating out there SCOTUS may want to split this baby so topics like marijuana are not immediately appealed to the courts rather than be dealt with appropriately by Congress.
In the between time, perhaps both the Nevada Gaming Control Board and Nevada Gaming Commission should consider dropping language about operations in other jurisdictions from its menu of laws and regulations because:
1) They still have absolute authority over their Nevada licensees, and
2) Why box out Nevada gaming companies from operating to the acceptable local standards they may otherwise find themselves in, such as New Jersey?