The failed confederacy that governs states with a National Government that could regulate individuals but not states. In the words of this court in the new york case, congress may regulate interstate commerce directly, but it may not regulate states regulation of interstate commerce. S that what iti does whenever it preempts state law . This court has repeatedly held that it may preempt contradictory systems and state laws. Theill you make a government gave the state of choice to regulate this way or dont regulate at all. Thats right. It gave the states of choice in conjunction with the regulation of the area there were federal standards. The states were told, except that more dont, but if you dont, you wont regulate and neither will we. Fact, thetter of consequence of that is that the states could regulate according to the standards established by the federal government with respect to the regulation of interstate commerce, and if the states chose not to do that, the field is left the federal government. This is a direct command to the states without any effort to regulate sports wagering. The Airline Deregulation act as the obvious example. Yes, and its a good example, because in that case, the congress of the United States took white responsibility with respect to Airline Deregulation. Airline regulation, that statute has a panoply of provisions regulating airlines in different respects we dont wants the price improved of airlines deregulated. Thats the federal statute, and it says states cant regulate them and we dont regulate the prices, the free market does. Say, weey say they are not going to regulate sports gambling at all, we are not going to forbid it, and we want you to forbid it. You see the analogy. I do see the analogy, and the case to which you are referring discusses in great detail the federal regulatory scheme which included, as a portion of the federal regulatory scheme, a preemption of the states from regulating fares, conditions of service, that sort of thing. But justice breyer, that is an area of essential example of the government taking responsibility for how airlines flew and deciding in certain areas, yes, it could be preempted. What does that mean . What would you be looking for when you say the federal government took responsibility . Supposed that the federal government had just said, we dont want states to regulate, we dont want to regulate ourselves, we just want i think this is what Justice Breyers question was a free market. Is that enough responsibility that the federal government has taken . Becauseieve it is not, that is a situation where the congress would be saying, we are choosing to regulate states, we are telling states that you may not participate in regulating commerce that is taking place in your state. We dont want to take any responsibility. We want to put the burden of an expense and accountability on states to do so. S is quintessentially here is what i am asking, mr. Olson. You were suggesting that the federal government, in order to preempt state activity, has to itself enact some kind of comprehensive regulatory scheme. And the question is, what would we be looking for if that were our test . When do we know they have been acted a sufficiently comprehensive regulatory scheme in order to allow preemption of state rules . The only thing i would say in response as a predicate is when you say sufficiently comprehensive, to the extent that this federal government has taken responsibility to regulate in that field, once it has done so, it can then preempt, under the supremacy clause, inconsistent or contradictory state laws. Of the supremacy clause is where this preemption comes from. It requires, it says, that the constitution statutes or treaties shall be the supreme law of the land. The court has construed that, repeatedly get doesnt even have to be inconsistent, if the federal government occupies the whole field. State cannot regulate the length of a freight train, simply because this is reserved to congress. Could you, in this case, to avoid commandeering concerns, interpret the law as saying that if states do legislate, then they will be preempted . If i understand your question correctly, justice kennedy, if congress had taken the responsibility to decide to do something about sports wagering by regulating it in some respect or taking responsibility in some respect, it could say that when the state is doing something that is inconsistent, then that can be preempted. But the title of this statute says to enact, to prohibit sports gambling under state law, so what the congress was saying there when Congress Passed the statute, it had a report from a Congressional Budget Office that specifically said this will have no budgetary impact on the federal government and we interpret that as saying that if you do regulate, then it will be preempted. It may be preempted. Congress, as you know, could adopt a statute that explicitly, expressly preempt, or in some cases impliedly preempt, state laws that are inconsistent in a way is this your argument . Forget the Airline Deregulation act, it was a bad example for this reason. I think what you actually say is that the federal government makes a determination of what interstate commerce will be like in respect to this particular item. It can do that. Thats a determination. Once it makes that determination, it can forbid state laws inconsistent with that determination. That is called preemption. But what it cant do sis say our determination is that states can do it as they want, but they cant do it that way. To do that is to till the state how to legislate, in which case it is the state, and not the person, who becomes the subject of a federal law. I wish i had said that myself. [laughter] but you did say it. Im trying to get your argument. That is my argument, and the court said it almost the same way in new york versus the United States. Congress could preempt state radioactive waste regulation, but the 10th amendment limits the power of congress to regulate in the way it has chosen, in that case, instead of directly regulating congress as impermissibly, directed the state to regulate. That is new york versus United States, the prince case. That same language appears in earlier language that goes back to 1911. Mr. Olson, is this a commercial activity by the state . If it is licensing casinos and horseracing, isnt it involved in a commercial activity . Certainly, it is a commercial state individuals are engaged in betting on sports. Why isnt it when the state is licensing that . Its making money from the licensing. It doesnt change the character of the underlying activity. The constitution ordains who may regulate that commercial activity, presuming that it is interstate commerce. Ive never understood it. You just have to watch the lines on the highways coming from all Different Directions and states going to gambling casinos. Yes. So if it is a commercial activity by the state, havent we already said that the federal government can regulate that activity by the state . Yes. So why isnt that telling the state that it cant license participated, authorized, or otherwise involve itself in gambling a strict prohibition of a commercial actor . The question is interstate yes, just as the language in the near case i just quoted, congress may regulate that field. If it does regulate that field which congress has not chosen to do in this case it can then preempt inconsistent state laws. You have not challenged 3702 subjection 2 have you . That is simply a counterparty subsection 1. But you did not challenge it. We challenge it look but were not sued for that. Subsection two is another side of the same because it says pursue under law. Subsection will one we say is something that the states can do. If congress chose to prevent it would be unconstitutional. By its terms subsection two operates on individuals and not the state. Only if individuals operate pursuant to law, which means pursuant to the state law, which is referred to in subsection one. This is a little confusing because of the way congress chose to do it. What it is, and i sort of except that, subsection to simply seeks to do indirectly what we contend some section one cant do directly under the constitution. What part of subsection one is not challenged . The ban on the seat itself operating gambling casinos. This would be something similar, justice ginsburg, to the reno versus condon case or the South Carolina versus baker case where the federal government chose to enact a law of general application that apply to private parties engaged in interstate commerce and applied the same law to the states in the states were engaged as a Market Participant to the same degree as interstate commerce. So to the extent that congress had initially decided to regulate this area and put itself into the field of regulating private persons engaged in activity, it could then if a state chooses to engage in the same activity. If you take the prohibition on private parties and have a comparable prohibition on the state, what do you accomplish by not being authorized by . If you have two parts that are not constitutionally they achieve almost the same thing. It would because the two should only in firm because it would be constitutionally in firm. It did not do so, quite obviously, it could then regulate the state is a Market Participant to the same degree it was regulating private citizens. It is pretty comprehensive. The comprehensive aspect is a total prohibition. Yes. You seem to be saying they cannot regulate it if the regulation is going to be a total ban. Thats very comprehensive. No. Stated with the way you but thats not pa sba. If pasba said we prohibit gambling on sports, then it could address the state as a participant in that same activity. It did not do so. This statute attempted to have the state thats why i quoted the name of the statute. It didnt stop there. It said sports gambling under state law. This is what you talked about in the new york case, new york versus United States. It put the expense, responsibility and burdens on the states and basically said, as the Congressional Budget Office said, it will not have any effect on the federal budget because the federal government is doing nothing. The Senate Report said it will not have any regulatory impact. Suppose i read these cases, that the federal government can constrict city officials for its own purposes. The federal government does whatever it wants consistent with the commerce clause. But it cannot conscript state officials in order to help the federal government do it. If thats the way i see these cases, who is being conscripted in order to do what here . It is both conscription and commandeering indirect in the states. All those terms are applied in this. What is being constricted here is the legislature of new jersey has been told it may not regulate an activity that is taking place in new jersey if there is a legal gambling going on. Illegal gambling going on. It cannot regulate that activity. The way you say that, the federal government is saying to the state that you cannot do something. That sounds to me the language of preemption. All the time the federal government takes some kinds of action, passes a law, then says to the state, we have got this, you cannot do anything. It is so fundamental at the Constitutional Convention discussed in so much detailed that the difference is in those circumstances where congress has taken the step of regulating commerce, it can preclude state efforts that interfere with that or conflict with that. But when it sets out at the first stage of her regulating the legislature here we have a situation where a kurt a court has ordered, told new jersey you cannot a statute try to repeal. Do you see no difference between the federal government saying to a state you cannot take some preferred policy option that you would like to take, and on the other hand, the federal government staying saying to a state, you must help us do something. Because i thought our cases were all about the second thing. You must help us. You must be our little assistance assistants. When we promote or try to advance a policy object. I guess what im asking you for is, how is new jersey being put in that position with respect to the statute . In many ways new jersey is being told it may not regulate in the way its legislature chooses to exercise its discretion with respect to an activity taking place in that space. It must enforce a law and keep it on the books that is attempting to repeal the executive branch and the legislative branch of the state of new jersey have been constricted must enforce. The Third Circuit the first time around said each state is free to decide how much of a Law Enforcement priority it wants to make. So theres not going to be a federal prosecution if the state says we have other things to do that are more important than casino gambling or sports gambling. Yes, justice ginsburg. The court said that. And the court said you may repeal any portion of your statutes. You may take any policy you want to take. The federal government said you may repeal all or any part of your Sports Betting prohibitions. Thats exactly what new jersey did. But you can imagine justice ginsburg, having a law that the federal court has ordered new jersey to keep on the books, it prevents it from repealing that law, which means it is the same as requiring it to enact that law and maintain that line the that law in the books. Then the officials in new jersey, the governor of new jersey saying we are not going to enforce that law on the books after we took a note to uphold took an oath to uphold the laws of new jersey an oath to uphold the laws of new jersey. That is a strange construction of what the preemption clause and commandeering is all about. Im sorry, does it tell the governor he has to enforce the law . No, its is the repeal must be reversed. If the act is unconstitutional, those laws basically go by the wayside no matter what. But my question to you is, i read the injunction, i dont see it anywhere to on the governor he has to enforce it. It doesnt. The governors responsibility to enforce the law if every governor enforce every law in the book the state would be more than bankrupt. It would have no way of surviving. I understand that. There are countless laws and even ones that are enforced that are not enforced totally. States make choices all the time. Yes, and the states make those choices. There is nothing here telling the state has to enforce this law. It is an order from the federal court saying a legislature having repealed a statute dust unrepeal it, put it back on the books, and you are saying the governor doesnt have to enforce that law. Its a law on the books of new jersey. The governor and new jersey officials have taken an oath to uphold the laws of new jersey. Heres a federal court that says we are going to order the statute to be back out of the books, but forget about it. This is a very strange whats the difference between that and this law is unconstitutional . This law is preempted, or just a simple ruling by the court this law is preempted. Period. End of story. This was a repeal. If if, as i said, the court had simply said this is preempted. And what the this is in your question is a repeal of a prohibition of Sports Betting, which means the repeal that the legislature carefully did in response to the Third Circuits decision and the government and lees both saying you can repeal and the leagues both saying you can repeal any law you wish i have three ways of looking at this case. The first way is to say that this is the repeal, which is seems you are arguing. And you are saying to us, does or does not this statute permit a repeal . And if i say it permits repeals of all kinds, partial or not partial, we avoid the constitutional question, because then you could do whatever kind of repeal you want. The second way to look at this is that this statute does not prevent repeals at all, that is what you are arguing right now. That would make this statute unconstitutional. And the third approach is basically what the government is arguing here, which is it permits complete repeals, but not partial repeals, because partial repeals of the nature taken here are actually authorizations that are prohibited by the law. So those are the three approaches. In my missing something in what those approaches yes, because the effect of the statute is to prohibit new jersey the statute was intended to ban Sports Betting. Thats the second or is this a fourth way . No, this is one way and i submit the only way of looking at the statute. From its title to its legislative history to its exact language it was intended to prohibit Sports Betting under state law. Thats my second is taking place under state law over the u. S. Except for the except for nevada it is illegal. What new jersey has decided not just that we want to repeal, because if you repeal you made the argument below there was no authorization because the statute did not regulate how Sports Betting would take place. You abandoned that argument. Why . We only were responding to arguments by our opponents and the Third Circuit decision that says we normally interpret statutes in ways to avoid constitutional difficulties, not in ways to create. Yes and the only way to avoid it has been suggested here, is that there may be some appeals, and the Third Circuit use the language too much authorization, which is very much like a language in the prince case, too much policymaking. And in the case the court said that is not a line that is permissive with respect to regulating what the states are doing. What we are saying is to the extent our states you take a win on statutory grounds. We would take the wind except consequence of that we would have a statute intending to prohibit the spread of Sports Betting. Our opponents say in order to make that statute constitutional because they recognize the commandeering problem from the beginning in order to make that constitutional we are going to allow you to eliminate all prohibitions of Sports Bettings. As an effort to stop the spread of Sports Betting would lead to an interpretation or to hold the constitutional where all limits on Sports Betting are removed. If the Court Permits i would like to reserve the remainder of my time. Thank you, mr. Olson. Mr. Clement. Mr. Chief justice, it does three basic things. It tells the states they may not themselves operate or advertise sports gambling schemes such as a sportsbased lottery or sports book. Second, it tells private parties that they may not operate or advertise a sports gambling scheme pursuant to state law. Thirdly, it tells states that they may not authorize or license third parties to conduct those sports gambling schemes that would violate federal law. It does so by this mechanism, it leaves in place a state law that the state doesnt want so the people of new jersey are bound to the law be state doesnt want but the federal government compels to say to have. That seems commandeering. We dont think it operates in that way. We think if new jersey wants to say we are going to lift all of our prohibitions, we think at least after that law, it would not be preempted as written. Its a separate question, especially in new jersey, where the private conduct that would take place pursuant to that repeal, especially casinos and racetracks, would be prohibited. The partial repeal is for forbidden correct . , this is for been forbidden. What partial repeals are not forbidden . What could the state do . First of all i think its important to recognize what past it regulates the operation of sports gambling schemes. It doesnt actually regulate sports gambling in the generic sense and it says nothing about individuals in gaming if new jersey wants to say all of our prohibitions on the demand all of its provisions of the demandside it can partially repeal. Can the federal government enact a law say no state shall pass an income tax greater than 6 . I think it might be able to do that. Lets put it this way i dont know why in principle that would be so different from the statute issued in baker which is no state shall issue a bearer bond. I think its the same. To the extent it would be odd, isnt it just a preemption provision. Even he concedes if congress regulated the field they would be no problem with the preemption. It seems to me there is something a little more odd which it goes to the fundamentals and powers of the state to function their own government to say you can go so far as to regulate what level of income tax they can charge. You are right mr. Chief justice. Maybe i should amend my remarks. I dont think there would be a commandeering problem with that statute. There might be some other federalism problem. If Congress Tells the state to move its state capital i am not sure it is a commandeering problem. Not to use a word maybe im not supposed to a maybe it is a National League of cities problem. I dont think its a commonly commandeering problem. The federal government wants to reduce expenditures on Public Employee pensions. So what does the states theres a state law that you cannot spend more than 20 of your budget on state employee pensions. They are commandeering the state to achieve that result. Can they do that . Again, i dont think thats a commandeering problem. I do think it is probably a National States legal Cities League of cities problem. If the court wants to say there are certain things that get too far into the states kitchen, thats one thing. Hypothetical indicates this blurs political accountability. This coming from the federal government, the State Government . Precisely what federalism was designed to prevent. Precisely in new york this court said there is not an accountability problem with preemptive distillation. Legislation. I do think it is worth recognizing that you have three pieces, three legs of the stool if you will. One says states cannot do this. That the other side has no objection to. The other since private parties, you cant do this pursuant to state law. Thats because it is regulation are there other statutes that rely on prohibition of state action without an accompanying federal policy . I dont know that there are. I think maybe there are. It is just the federal policy they enforce is implicit. You cannot have discriminatory taxes against railroads. That is all the provision says. In interpreting that, congress is say they dont want to have that instate commerce. Have that kind of discrimination in interstate commerce. Here you dont have to look where the federal policy is. They say, we do not want sports gambling schemes. We dont want the states to do it. We dont want the private parties to do it. Isnt it enough just to say it is illegal for entities, in gambling on Sports Events . That would be the federal government regulating this area. Then it has the normal preemption clause where its is not withstanding any state law to the contrary. At the end of the day i think that is what pafsta does. I think was worded in a particular way for a particular reason. The one set a federal statute you should look at are the preexisting provisions in title 18 that already told private parties that if they engaged in a sports gambling scheme or a gambling business, they are in violation of state law that was already a federal challenge. Federal felony. Title 18 as to lotteries. That is a very odd way this is subsection 2 that is a very odd way to phrase something. It is illegal if it is pursuant to state law. In other words if the state law says you can do it, thats the only situation in which it is illegal. If they dont say anything about it, then feel free to do it. The oddity goes away entirely if you understand before Congress Passed it, it was already unlawful as a matter of federal criminal law for a private party to operate a sports gambling scheme in violation of state law. In violation of state law. Go back for a second. One of the purposes is not the one Justice Kagan mentioned, but it is the best one as far as this case is concerned that i can find, is the nation notion that federal statutes should address themselves to individuals and not the states. All right . Now, that cannot be 100 true because we have all the all preemption. You can still get it is basically true with preemption being a commerce cause based exemption. Exception. Then ask, what have we here . There well, Transportation Safety act . Osha . Nothing like that. No federal act like that. Is there a deregulation act which says if you do the federal policy there will be Free Enterprise affairs . No. Because all the things you mentioned have the words of state law and it. In it. All we have here is a group of provisions, all of which are addressing themselves to what kind of law a state may have without a clear federal policy that distinguishes between what they want states to do and what the federal government is doing. Given those circumstances, it falls on the subject matter of this law is the state. Thats what this is about, telling states what to do. And therefore, it falls within commandeering. A little long, but thats how i was reading. New york, it is not addressing itself to the states. It is long so you can answer the whole thing. I will try to answer the whole thing but i will start with the proposition that we know there is absolutely nothing wrong with congressional legislation that operates on states as market actors and thats what the first four prohibitions in it do. They tell the states you cannot operate, advertise, sponsor or promote sports gambling schemes. So thats ok. It also tells private parties you cannot do those four things pursuant to state law. Those private parties cannot do it as a matter of federal law in violation of state law because its a federal criminal prohibition. So all that leaves is the licenses to authorize. All those are our an express preemption provision. States and local governments are the ones that can attach laws that might be preempted. I think it is analogous to baker. In baker, Congress Told the states they could not have bearer bonds. They also told private parties, you cant have error bonds. Begin by saying this is market dismembered the first three but not the fourth. That its on the first, not the fifth and sixth which are licensed and authorized. My point is, you are telling the states they cannot do something. Just like in baker. Against the backdrop of statutes tells private parties, you cannot issue there were bonds. You cannot issue bearer bonds. Dealing thing in the middles provision that says states, you cannot license or authorize private parties doing age conduct that file is federal law. If that were in the statute, this would be under the law that applied preemption and of Congress Says especially those laws do not do that, do not authorize and license private parties to engage in conduct that would violate federal law. You said subsection two is the other side of the coin of subsection one. If that is the case that such subsection two cannot be severable from subsection one. I would not know if i would use the phrase inseparable, but i think it operates inseparably and without constitutional issue. Justice roberts it does is same thing, right . It says it is illegal for individuals to follow state law. Activity under state law, the same thing as saying state shall not authorize individuals to do that. Mr. Clement two points. A difference in text between 37022 and 37021 and i think there is an argument that the two parties have not had the brief because this has not been a 3702 case because i think 37022 is broader than license or authorized by law. Putting that to one side, when i would say is particularly when you read 37022 against the backdrop of the preexisting federal statutes in title 18 that made operating a sports violating sports scheme and violation of law a criminal federal prohibition, then it basically says private parties, there is something that is essentially a cancer on interstate commerce that we do not want to take place how do we know congress would have passed two without one . One makes regulationfree because it says, states you have to do this and it does not cause any impact on the budget of federal government. Number two on your standpoint might cost money. You can see a legislature saying, one makes sense but im only going to vote for two because of one. It comes for free. Mr. Clement i would like to make two points. One is, on the idea of zero versus free, we looked at other preemption provisions and criminal provisions and cbo tends to schedule them the same way. Justice gorsuch that is neither here nor there. If we are asking the severability question, one question is what congress wouldve done and a very different world. That is hard to answer but that is the question we are proposed. How do we know congress would have passed to without one . Without one. If one is fine, too comes for two comes for free. Mr. Clement i would like to refine the question and this way. I think the critical question is, what congress have wanted to have the first four prohibitions and the prohibitions in number two if it couldnt licensed by law provision . I think that is the relevant question because their constitutional question only goes to authorized or licensed by law. I think although these questions are difficult, this might be the easiest one you have because i think the statute operates almost the same way. The metafact of a statute that the states cannot sponsor, advertise, promote sports gambling schemes and neither can private parties pursuant to state law a end as a way, they cannot do it in violation because of other provisions, that would mean we shouldve gone for the injunction against private parties, which by the way we did in district court, that issue i think is still there in front of district court. When we first filed our tro we went against states and private parties. We got a tro against both and then there was an unclean hand the metafact of these two statutes without license is the same as a statute that sort of left that to imply preemption. It is sort of the same statute. In a counterfactual world, would Congress Want a statute that told the states you cannot operate or advertise sports gambling schemes and told private parties you cannot operate sports gambling schemes pursuant to state law and by the way, you cannot do it because it violates criminal provisions. Obviously they would want that. This is like in the Airline Deregulation act, Congress Wanted a world by the United States were Market Forces said prices. In all of the acts you are talking about together, Congress Wanted the United States fill in the blank. Mr. Clement Congress Wanted the United States to have no gambling taking place either by individuals or by the states. Justice breyer you had to use the word statesponsored and that means legislation and therefore there is no interstate policy other than the interstate policy of telling the states what to do. Mr. Clement can i amend my answer . [laughter] mr. Clement congress did not want there to be sports schemes operating in interstate commerce. Congress could have prohibited sports gambling it itself. So, what federal policy is served by this statute that would not of been served by the former . Mr. Clement two things, Justice Alito. Congress could have limited all sports gambling but it wouldve required it to regulate individuals as sports gambling as opposed to entities, businesses, that were providing sports gambling. Congress could have prohibited Gambling Enterprises in itself. No question it couldve done that. It is something in the commerce clause. What policy does the statutes are that that would not . Mr. Clement and actually furthers federalism values by saying instead of having a onesizefitsall policy which says as a matter of federal law, everybody who operates a sports gambling scheme is gone to face two years and a federal penitentiary and a fine up to 10,000, the statute says, look, 46 dates are more or less doing what we want it they are doing it in 46 different ways how would it serve the interest of making it cheap by allowing congress to not have to expend any funding to enforce its laws . Mr. Clement with all due respect, i dont think trying to do it on the cheap was their principal concern. Criminal statute does not really have like a big budgetary impact because you dont have to make like a new usa to enforce that statute. You let everybody enforce it in the enforcement priorities that Justice Sotomayor alluded to work on the federal level as well. If you preempt state law that does not have a budgetary impact either, but what is distinct about this is it basically says, look if you want to regulate this in 46 different ways, have at it. If you want to repeal those laws, i mean, you can do that, that repeal will not violate 37021, the sports gambling the takes pursuant and it might violate 37022. I think having it a federal felony where everybody gets exact sentence, having a system it a one state makes misdemeanor, and other state makes it a felony, and other state gazette with all of their enforcement ologies because they think it is really important what is the line you would draw between preemption and commandeering . Mr. Clement i would draw the line discord through a newark first versus prince because that was against the backdrop of all sorts of preemption statutes the court was distinguishing. I would say unless the congress basically tells the states they must regulate or pass federally prescribed legislation or enforce a federal policy what is the difference between saying you must passes you must pass a certain piece of legislation and saying you must maintain a piece of legislation on the books . Mr. Clement asp by does not say you must maintain on the books. How is it different . Mr. Clement a basically tells the state, you want to appeal that prohibition . You can do that. Your active repealing the law will not violate paspa. Think of it in relation to baker. If the state repealed an existing prohibition be onarer bonds, that would not happen. If on the other hand, the state started issuing bearer bonds, because there is no longer a prohibition, or private parties started issuing bearer bonds, that action by the state would violate. That is the way paspa works. Did you just go through and pick out a long list they cannot be controlled . Mr. Clement i do not think it could do that, Justice Alito but i think congress said, look, we already say as a matter of federal law under a variety of revision that people who violate in gambling businesses violate state law. We have this prospect that maybe some states are going to authorize this and were going to complete our federal policy by saying look, if you are a private party operating a gambling scheme we dont care if you do that in violation of law or pursuant to state law that is similarly prohibited by paspa. Thank you, counsel. Mr. Wall. Mr. Wall mr. Chief justice and may it please the court. I think he has boiled down the case to two arguments. This is a commandeering problem because new jersey is forced to keep a law on its books and there is no copper is a federal regime. That is incorrect. Look at page 383. The injunction does not remotely require a state to keep a law on its books. It says the state cannot give operation or effect to its preemptive law. That is exactly on this word for word what Justice Scalia said in prince. The supremacy clause requires, if the state passes a law prohibited by federal law, the state can be required in state officials can be required not to give effect to that preemptive law. That is not prescription in any that is not conscription in any meaning of the word and as to the second, you can just cut breath of federal regime is made up for the reason mr. Clement gives. States may not regulate interstate commerce in a particular way because of federal policy is that the states are to take their hands off of that particular part of interstate commerce. Even if the court thinks it is a principle it does not to reach it here because it is actually a federal regime beyond passage paspa itself. Federal law criminalizes the operation of a gambling scheme in violation of a state laws and with states in the 1990s started authorizing these things, congress handled the other half of the circle and said, all right. Look, we wont make a criminal but we will put in an objective injunctive action so that states that started authorizing sports gambling schemes which we know states cant do and individuals cant do and they have never argued there is any problem with those, than of state start doing that we will get a civil injunctive action and that is far less invasive of state sovereignty. The states cannot do it, the individuals cannot do it. They have never argued there is any can you go back to the basic question . It was raised by the dissent. It said you start this , discussion from the fact that the law exists, if it is a partial or full repeal, the law does not exist. Period. End of story. That is the baseline. So, why is a partial repeal in violation of the preemption clause . Because if the law did not exist, the fact that they have carved out a certain section of the population for whom the law will stay in existence, that is not actually authorizing. That is merely repealing. I think that would be right. A lot of the things the state would do, but when the states as we are going to repeal the law in such way that nobody can run a sports lottery except for the 12 licensed state casinos and racetracks have already condoned Gaming Operations i have not looked at the licensing laws in new jersey because they were not provided to us and it was further failed than the question but the court below said it was not passing on that question because it found a different answer. But you might be right if the licenses that those two facilities hold really are general and say, you are authorized to do it any gambling permitted by law. Then you might have an argument. If all they do is repeal, what does it matter . Mr. Wall it goes to something Justice Gorsuch said earlier. They want to interpret the statute is marginal repeals they can create a constitutional problem and leverage that to try to take down the entire thing. Ourrpoint is pretty point is pretty simple. If the court sticks to what it says and got there and says the authorization is firmly enabling conduct, then it channels the particular legislative providers. Where is the line . Third circuit said private gambling is not covered. On page 30 of your brief you indicate maybe the state could have a certain dollar threshold and that would not be authorizing. I am not clear why that would not be authorizing if you specify threshold dollar amount in state law. What if they said you can do it at the elks club . Is that authorizing . Where does the government drop where does the Government Draw the line . Mr. Clement i think the only thing the court needs to say is in the context, however the state gets there, legislative up, legislative down, then met, amendment, repeal, does not matter. If you what it does is channeling gambling to stay preferred providers we have no record of that as Justice Sotomayor points out. It meets any repeal of any degree of any kind, why shouldnt the respondent have to live with that . Mr. Wall i do not think it is a record of question, they affirmatively said we are going let only casinos and racetracks can do that. That was a problem. They did not dispute it violated paspa. Just a sotomayor the earlier version actually explicitly licensed instead of complete operation requirements and other things. I do not think they wouldve had a snowballs chance to say that was not licensing or effectively operating. Here what they are saying is, there were no laws. There is a law prohibiting all gambling. We are now going to repeal part of it and say, some gambling is ok. So unless what the court when susie say is no appeal or authorization, even if new jersey took away its operation only at the regatta, then you could just an active prohibition peel it back with them you want. Unless the court is prepared to say it to repeal can never be authorization, this particular repeal i think all the court needs to say is for paspa purposes, if you are licensing is he knows and racetracks, this requires affirmative comment from the state to enable. It is no longer constriction. Conscription. Were not saying you have to maintain anything. It is what if the repeal is across the board, no exceptions . Mr. Wall if new jersey just repeal, we dont have a problem. Justice roberts are you serious there is no problem if anybody can engage in any gambling they want . 12yearolds can come into the casino youre not serious about this . I am very serious about it. Statesponsored gambling schemes. It does not matter if there is a gambling pool, was not going against all gambling. Justice roberts that is not a real choice if that is all they can do. Mr. Wall they can repeal or strengthen in various ways. One thing they cannot do is affirmatively engage in the one policy. That is the definition of preemption. I will grant the congress the last time around, the government did say in recommending that paspa does not require new jersey to retain prohibitions it adopted prepaspa. It is free to repeal this prohibitions in whole or in part. That is what the government represented to this court. Was that statement inaccurate . Mr. Wall no, i think we did not take into account the gamesmanship and which it would engage. We were saying the same thing were seeing here today, that they have a lot of options on the table. The one thing they cannot do is the one thing congress preempted. We did not have in mind that new jersey would come back and do the 2012 law with the partial appeal. I wish we had dropped the footnote new jersey tries to , accomplish the same ring but styles it as something different, that would equally be an authorization for paspa purposes. I will completely grant the congress assumed that states would not authorize this if they cannot often from it. That was true for a long time. I think congress may well want to revisit that. Paspa does not have anything to do with it. New jersey is trying to create a small problem with two words and then try to leverage that small sickness to take over the entire patient. They have to do that because that is the only way they can get where they want to go, which is to take down the private party prohibition to which they have never argued is even potentially is this not a prohibition not to repeal because it is limited to the casinos would probably have all kinds of other roles and regulations. And, under those circumstances it amounts to an authorization, not a simple repeal. Is that the argument . Mr. Wall exactly. If youre trying to understand what constitutes an operation that is a sports gambling theme, any law that says everybody cannot do it except for you two were three, that is an authorization. It does not matter if it is legislated up or down. Once you say that, i think the argument is that you say there is no federal policy which says states cannot there is no federal policy against authorizing sports gambling but for a federal policy that says a state cannot authorize sports gambling and that is to commandeer. Have i got that right . I think that is the argument but i think it does not make sense because baker would not have been different if in addition to having a prohibition on states and and eventuals it would of said states would preemptively try to authorize conduct separately barred by the active and it said it was commandeering of violation, the state would sense respectfully submit on how to unblur the clear line. Five minutes, mr. Awesome. Mr. Olson. Mr. Olson thank you your honor. Please the court. If i have your argument right right now, say yes. You had a right to four. I had a rate just now . Forget. [laughter] i have a question. The respondent says new Jersey Legislature is doing exactly what he says they should not or is there can which did legislation that would fully repeal of the Sports Betting prohibition. They understand it is being concerned by both houses. Words and stand right now . Mr. Clement i do not know. I think it is irrelevant. Justice sotomayor but you argued and mr. Olson they are not laws yet. What i said was congress could not have possibly have intended in that bill to prohibit the expansion of Sports Betting to have it construed in a way that would remove all limitation. Justice sotomayor what is so crazy about congress perceiving that states would never want 12yearolds to go into gambling houses . Having roles of some sort creating laws regulations conduct that would prohibit that sort of thing. What congress can do is place a restriction on Sports Betting. And have a finally reticulated statute. It can adopt the provision that if permitted nevada to have, which is careful regulation of something taking place. What we have now is activity that is billions of dollars taking place throughout the United States. It is all unlawful. What new jersey decided to do that is your selected selective prosecution theory . They are permitting fantasy teams . Mr. Olson im not talking about fantasy at all. I am talking about betting on sports games. Justice sotomayor there are four states permitted to continue. Mr. Olson nevada has Sports Betting, regulated. It has opened books and so forth. Those other states were small slivers of lotteries. What i am saying is that betting on sports is taking place all over the United States. If 5 of it is illegal in nevada, the rest of it is illegal. New jersey decided Justice Sotomayor why dont we legalize marijuana and all drugs because there is a rampant market out there for those drugs . We have made a policy choice that we do not want the state involved. Congress enacted laws with respect to marijuana and other laws. Various states have done various Different Things but we have no question here that whatever congress intended to do was pass a law. We look at the statute, the statute says it is an act to prohibit gambling under state law, not federal law. The process starts with the idea that there must be a federal constitutional provision on a statute or in the constitution and then the federal government may take steps to prevent states from interfering with the accomplishment of that. My opponent mr. Clement talked about the South Carolina versus baker case. South carolina versus baker specifically said the exact same thing that new york versus United States says and the prince case says. Sections 310 regulates states activity does not seem to control or influence the manner in which state regulate private parties. The same thing is true in the reno case. My opponent talked about the statutes of general application. In the last sentence of that case, this court specifically reserved the question whether congress can single out states with respect to activities and then decide whether to do that on the outside of context of the statute of general application. When this suit was first filed by the leagues, the complaint specifically said paspa imposes a broad ban. On Sports Betting subject only to the narrow exceptions that apply here. You have a couple minutes. Thank you chief justice. On page 15 of the federal government brief, we are saying state laws that attempt to change what new jersey has done are nullified by paspa. Anyone familiar, as this court is with the history of the Constitutional Convention knows , there is specifically on the agenda and opportunity for congress to nullify state law. That was defeated. The whole debate with respect to federalism had to do with whether congress would be permitted to regulate interstate commerce or states or be required to regulate commerce first and as an adjunct to that constrain what states could do. That is exactly what this statute did. The federal government, if Congress Wanted a prohibition under state law because it would have no responsibility, no accountability and a brief says, s brief says, if you are complaining about accountability, call your senator. That is exactly what the United States talked about, what this court talked about in new york versus United States. The accountability is very important. The structure is important to the liberty of citizens and this statute violates that urbain that ordained structure. Thank you. The case is submitted. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] the most important issue for my states funding. A lot of times we talk about the lack of resources and the quality of education. It all starts at the source. The board of governors, everything, the amount of money they give us. It is important to get funding, but it also has to do with money we are sending our institutions. It is important to start at home. And then we can rally some more funding. The most important issue to me and florida is education. If we do not give our kids the skill they need to get a great job in the future, i do not know what our society holds. Of the most important issues in florida is the educational opportunities. Student, i pride myself on the importance of being able to afford the opportunity for students to be able to participate in education across america. I understand funding is not always resourceful or available, but there needs to be a discussion. My concern is the quality of life, not the quantity, but the quality of life in my humble developersbelieve ,re over developing communities they dont make it as pleasant as it could be. Cspan2 cspans washington journal, coming up tuesday morning, republican tax Reform Efforts in the coming fiscal deadline. Rhode island democratic congressman will talk about the latest in the investigation into whether russia interfered with the 2016 president ial election. Washingtons journal. Joined the discussion. Alabama voters go to the polls today in a special election for a senate seat vacated by attorney general jeff sessions. Democrat doug jones is running against roy moore. You can also follow live on cspan. Org and cspan radio app. And threew films women who have accused President Trump of sexual misconduct, called on congress to investigate allegations. They called for the president to be held accountable for his actions. They have created a film called 16 women and donald trump. This briefing is when he five minutes. Minutes. Riefing is 25 good morning. Saw, or some just of you have copies