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Court Rejects Lesniak’s Challenge of Sports Betting Ban

9 March 2011 by admin

justice1011068897_67f3744648A federal judge has thrown out a lawsuit brought by two New Jersey state lawmakers challenging the constitutionality of a federal ban on sports betting. The lawsuit, brought by Senator Raymond Lesniak and Senate President Stephen Sweeney, stated that the ban unfairly puts 46 states at a competitive disadvantage against the four states that are allowed to offer sports betting.

The lawsuit was thrown out not because it was wrong (because it’s not), but because U.S. District Judge Garrett Brown said that those who filed the lawsuit had no legal standing to sue the federal government. The lawsuit would have had to come from the state’s attorney general. Brown said that to show a legal standing for the lawsuit, they would have had to show that the state of New Jersey has been harmed by the law being challenged. According to Brown, they did not show that.

Brown wrote in his decision that “the court finds that these plaintiffs have not alleged an actual or imminent injury.” He also said that the suit “puts the cart before the horse,” because even if the controversial law is stricken down as unconstitutional, sports betting would still not be legal in New Jersey. This November, however, the state’s residents will vote on a referendum on whether to allow sports betting. If they approve of sports betting, which a recent poll suggest, that would put New Jersey’s law in conflict with the federal law, setting the stage for another showdown. Lesniak says that he plans to revisit the issue after the November referendum.

The federal law at issue is the Professional and Amateur Sports Protection Act (PASPA) of 1992. That law made sports betting illegal in the United States, though it grandfathered in those states where sports betting was already permitted. That exempted the sports lotteries in Oregon, Delaware and Montana from the ban as well as the licensed sports pools in Nevada.

constitutionLesniak says that the decision simply “delays the inevitable” and that PASPA will be stricken down as unconstitutional. He’s probably right. The most obvious argument against PASPA is that the federal government has no regulatory authority over intrastate laws. The Commerce Clause of the Constitution gives the federal government the power to regulate interstate commerce, but if the sports betting is confined within the state, the feds have no authority. The federal government has been abusing and misinterpreting the Commerce Clause for decades, however, and has used it to seize power where none is permitted.

The Commerce Clause was intended to prevent the states from setting up protectionist trade barriers from other states, as was common for the original colonies. Ironically, it is a federal law, enacted due to a misunderstanding of the Commerce Clause, that is now doing exactly that – protecting four states at the expense of 46 others.

There are, of course, other constitutional problems with PASPA, most notably the Tenth Amendment. It reads that “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.” Pretty clear, right? The Constitution does not specifically state that the federal government can regulate intrastate gambling (or any intrastate laws). It does not say that states are prohibited from it, either. Therefore, the right to regulate, legalize or prohibit gambling lies with the state (through passing gambling laws) or the people (through voting on a referendum). Therefore, the Professional and Amateur Sports Protection Act, enacted in 1992 to ban sports betting in 46 states while protecting it in four others, is unconstitutional.

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