Transcripts For CSPAN3 Supreme Court Case Christie V. NCAA 20180103

Consolidated case 16477, the new jersey thoroughbred Horsemens Association versus ncaa. Mr. Olson. Thank you chief justice, and may it please the court. One of the most important decisions made at the Constitutional Convention in 1787 was replacing the failed confederacy that governed 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. Mr. Olson, isnt that what the government does whenever it preempts state law . It says you cant regulate . When the government preempts state laws, the government, the federal government has initially taken the position or taken an action to regulate interstate commerce in some respect, and when it does that, this court has repeatedly held it may preempt contradictory or inconsistent state laws. So what do you make of ferc. Pardon . What do you make of ferc . The government gave the state a choice. Regulate this way or dont regulate at all. Thats right. And we wont either. It gave the states a choice in conjunction with the regulation of the area no. There were federal standards. The states were told accept them or dont, but if you dont, you wont regulate, neither will we. So as a matter of fact, the 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 was left to the federal government. This is a direct paspa, a direct command to the states without any effort to regulate sports wagering. The Airline Deregulation act is an obvious example. Yes, and the Airline Deregulation act is a very, very good example because in that case, the congress of the United States took a wide responsibility with respect to Airline Deregulation. Airline regulation, as a matter of fact, that statute has a pan aplea of provisions regulating airlines in we dont want the price of airlines deregulated. We want to regulate it. Thats the federal statute. It says states, you cant regulate them and we dont regulate their prices. Free market does. Okay, here, they say imagine they say were not going to regulate sports gambling at all. Were not going to forbid it, and we dont want you you know, we want you to forbid it, you see the analogy. I do see the analogy. In the morales case to which youre 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, and that sort of thing. But justice breyer, that is an area, a quintessential example of the federal government taking responsibility for how airlines flew in this country, and deciding in certain areas, yes, it could be preempted. This statute is completely what does that mean . What would you be looking for when you say that the federal government took responsibility . I mean, suppose 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 . I believe it is not. Because that is a situation where the congress would be saying were choosing to regulate states. Were 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 and expense and accountability all on the states to do so. This is quintessentially what the i guess what im asking is youre 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, you know, what would we be looking for if that were our test . When do we know that they have enacted a sufficiently comprehensive regulatory scheme in order to allow preemption of state rules . The only thing that i would say in response is a predicate to answering your question is when you say sufficiently comprehensive, to the extent that the state, the federal government, congress, 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. But the supremacy clause is where this preemption comes from. It requires, says that the constitution statutes or treaties should be the supreme law of the land. The court has construed that repeatedly as saying and it doesnt even have to be inconsistent if the federal government occupies the whole field. Yes. Like southern pacific versus arizona. A state cannot regulate the length of a Freight Train simply because this is reserved for the congress. Thats fairly standard. Could you in this case to avoid commandeering concerns, interpret the law as saying that if states do legislate, then they will be preempted . Well, first i think if i understand your question correctly, justice kennedy, is if congress had taken responsibility to decide to do something about sports wagering by regulating it in some respect or taking responsibility in some respects and then it could say that where a state is doing something thats inconsistent, then that can be preempted. But the title of this statute says it all. An act to prohibit sports gambling under state law. So what congress was saying there, and 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. Can we interpret that as saying if you do regulate, then it will be preempted . It may be preempted. Congress, as you know, congress may adopt a statue that explicitly expressly preempts or in some cases impliedly preempts state laws that are inconsistent or in a way that obstructs the accomplishment of the federal objective. Im seeing this, i think. Is this your argument, and just dont say yes if it isnt. Forget the airline dereg act. It was a bad example for this reason. I think what you actually say is the federal government makes a determination of what interstate commerce will be like in respect to this particular item. It can do that. Including termination. It shouldnt be a determination. Once it makes that determination, it can forbid state laws inconsistent with that determination. Thats called preemption. But what it cant do is say that our determination is that the states roughly can do it as they want, but they cant do it that way. For it to do that is to tell 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, justice. But you did say it. Im trying to get your argument in. My argument is that 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 tenth amendment limits the power of congress to regulate in the way it has chosen in that case. Instead of directly regulating, congress has impermissibly implemented the states to regulate. Its new york versus the United States, and that same language appears in earlier cases. It goes back to 1911 in the coyle case. Mr. Olson, is this a commercial activity by the state . If its licensing casinos and horse racing isnt it involved in a commercial activity . Certainly, its a commercial activity when individuals are engaged in betting on sports. Having a sports why isnt it when the state is licensing them . Theyre making money. It doesnt change the character of the underlying activity. The constitution ordains who may regulate that commercial activity, presuming its interstate commerce. Once thats satisfied i never understood not to be. You just have to watch the lines on the highways coming from all Different Directions and states going to gambling casinos. Yes. 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. In fact so why is it that telling the state that it cant license, participate, authorize, or otherwise involve itself in gambling a strict prohibition of a commercial actor . Its the question is interstate commerce, and yes, just as the language in the new york case, which 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 then can preempt inconsistent state laws. I would quote you have not challenged 3702 subsection 2, have you . 370 subsection 2 is simply a counterpart to subsection 1. But you didnt challenge it. We challenged the entire statute, but we were not sued under that section. We were sued for violating section subsection 1. Subsection 2 is another side of the same coin because subsection 2 says pursuant to law. The law thats referred to in subsection 1, we say is something that the states can do and the congress, if congress chose to prevent it, it would be unconstitutional. By its terms, though, subsection 2 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 1. This is a little confusing because the way congress chose to do it. But the government refers to that as a belt and suspenders thing. What it is, and i sort of accept that because subsection 2 simply seeks to do indirectly what we contend subsection 1 cant do directly under the constitution. What part of subsection 1, it seems is not challenged either . And thats the ban on the state 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 chooses to enact a law of general application that applied to private parties engaged in interstate commerce and applied the same law to the states when the states were engaged as a Market Participant to the same degree as interstate commerce, in 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 address the states if the states choose to engage in the same activity. So you took this statute and you take the 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 infirm, and they achieve almost the same thing. It would be constitutionally infirm, your honor, because the state because the congress didnt attempt to regulate interstate commerce directly, and it could then, if it did so, which it did not do so, quite obviously, it could then regulate the state as a Market Participant to the same degree it was regulating private citizens as a Market Participant. Its pretty comprehensive. The comprehensive aspect is a total prohibition. Yes. I dont know you seem to be saying that they cant regulate it if the regulation is going to be a total ban. But thats very comprehensive. No. I agree with the way you stated it, but that is not paspa. If paspa said we prohibit Sports Betting, gambling on sports, then it could address the state as a participant in that same activity. It did not do so. This statute does attempted to have the states, and thats why i quoted the name of the statute, to prohibit sports gambling. It didnt stop there. It said sports gambling under state law. And what it intended to do, this is what you talked about in the new york case. New york versus the United States, is it put the accountability, the expense, the responsibility, the burdens on the state, and basically said as the Congressional Budget Office says, it wont have any effect on the federal budget because the federal government is doing nothing. It also said in the senate report, it wont have any regulatory impact. Suppose i read these cases and setting up a principle that the federal government cant conscript state officials for its own purposes. You know, the federal government can do whatever it wants consistent with the commerce clause, but it cant conscript state officials in order to help them help the federal government do it. If thats the way i see these cases, whos being conscripted in order to do what here . What is its both conscription and the court uses the word commandeering in directing the states. All of those terms, all of those verbs are applied in this. What is being conscripted here is the legislature of new jersey has been told that it may not regulate an activity thats taking place in new jersey, all over new jersey. Theres illegal gambling going on. It cant regulate that activity. The Legislature Just the way you say that, mr. Olson, the federal government is saying to the state, you cant do something. So that sounds to me, the language of preemption all the time, the federal government takes some kind of action, passes a law, and then says to the states, you know what. Weve got this. You cant do anything. It is so fundamental at the Constitutional Convention and discussed in most detail in the new york case, that the difference is that 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 initiative, at the first stage of regulating the legislature, here we have a situation where a court has ordered pursuant to my opponents briefs, ordered, told new jersey you cant repeal a statute that you have tried to repeal. You must keep it do you see no difference between the federal government saying to a state, look, you cant take some preferred policy option that you would like to take, and on the other hand, the federal government saying to a state, you must help us do something . Because i thought that our cases were all about the second thing. You must help us. You must be our little assistants when we promote or try to advance a policy objective. And i guess what im asking you for is how is new jersey being put in that position with respect to this statute . In many ways, new jersey is being told it may not regulate in the way it chooses its legislature chooses to exercise its discretion with respect to an activity taking place in that state. It must enforce a law and keep a law on the books that is attempting to repeal the executive branch and the legislative branch of the state of new jersey have been conscripted may i just ask you to qualify that 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 it, 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 that 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 a federal court has ordered new jersey to keep on the books, it prevents it from repealing that law, which means its the same as requiring it to enact that law and requiring it to maintain that law on the books, and then the officials of new jersey, the Law Enforcement people of new jersey, the governor of new jersey saying were not going to enforce that law on the books after we took an oath to uphold the laws of new jersey. That is a strange, very, very strange construction of what the preemption clause is and commandeering is all about. But to go back to the new york im sorry, does the injunction tell the governor that he has to enforce this law . No, it says that the repeal well must be reversed if an act is unconstitutional, those laws basically go by the way side no matter what. But my question to you is, i read the injunction. I dont see it anywhere telling the governor he has to enforce these prohibitions. No, it doesnt. What the governors responsibility to enforce the law mr. Olson, if every governor enforced every law on 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 laws that are enforced that are not enforced totally. I understand. They make choices all the time. Yes, and what the states make those choices, then. Here we have theres nothing here telling this state that it has to enforce this law. It is an order from a federal court saying that the legislature, having repealed a statute, must unrepeal it, put it back on the books, and what youre saying is that the governor doesnt have to enforce that law. Its a law on the books of new jersey. The governor and executive branch of new jersey officials have taken an oath to uphold the laws of the state of new jersey, and heres a federal court that comes along and basically says were going to order this statute to be back on the books but just forget about it. This is a very, very strange situation. 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, if, as i said, the court had simply said this is preemptive. 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 the leagues saying you may repeal any law you wish i have three ways of looking at this case or of the issues here. The first way is to say that this is the repeal, which it seems youre arguing. And youre 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. Thats what youre 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. Am i missing something in those 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 of looking at it . 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 way. Thats my second way. Sports betting is taking place under state law all over the United States in every state except nevada, with these other limited exceptions, is illegal. What new jersey has decided not just that we want to repeal, because if you repeal you did make the argument below that there was no authorization because the statute didnt regulate how Sports Betting would take place. You have abandoned that argument, im curious why. We only were responding to an argument by our opponents and a Third Circuit decision but we normally interpret statutes in ways to avoid constitutional difficulties, not in ways to create yes, and the only way to avoid thats been suggested here is that there may be some appeals, and the Third Circuit used the language too much authorization, which is very much the language in the prince case, too much policymaking, and the court said in that case, thats not a line thats permissive with respect to regulating what the states are doing. What were saying to the extent that our opponents are making an argument you take a win on statutory grounds. We would take the win, except, your honor, the consequence of that is we would have a statute intending to prohibit the spread of Sports Betting. And our opponents say in order to make that statute constitutional because they recognize the commandeering problem right from the beginning, in order to make that constitutional, we can allow you to eliminate all prohibitions of Sports Betting, so an effort by congress to stop the spread of Sports Betting would lead to an interpretation in order to hold it constitutional, where all limits on Sports Betting were removed. If the court permits, i would like to reserve the remainder of my time. Thank you, mr. Olson. Mr. Clement. Mr. Chief justice and may it please the court. Paspa does three basic things. First, it tells the states that they may not themselves operate or advertise sports gambling schemes such as a sportsbased lottery or a sports book. Second, it tells private parties in 37022 that they may not operate or advertise a sports gambling scheme pursuant to state law. And thirdly, it tells states that they may not authorize or license third parties to conduct those sports gambling schemes that would violate federal law. But it does so by this mechanism, it leaves in place the state law that the state does not want so the citizens of the state of new jersey are bound to obey a law that the state doesnt want but the federal government compels the state to have. That seems commandeering. Justice kennedy, we dont think past the operates in that way. We think if new jersey wants to say were going to lift all our prohibitions, we think at least as to that law, it would not be preempted by paspa as written. I think its a separate question, especially in new jury, whether the private conduct that would take place pursuant to that repeal, especially at casinos and race tracks, would be prohibited by 37z 022. But the partial repeal is forbidden, correct . This partial repeal is forbidden. This partial repeal. What partial repeals are not forbidden . What could the state do . Well, first of all, i think its important to recognize that what paspa regulates and it does regulate it quite comprehensively, is the operation of Sports Betting schemes. It doesnt regulate sports gambling in the generic sense and it says nothing about individuals engaging in sports gambling. If new jersey wants to say all our prohibitions which right now are on the supply side and demand side, all of its prohibitions on the demand side it can partially repeal. Could not a state enact the federal government enact a law saying no state shall pass an income tax greater than 6 . I think it might be able to do that because put it this way, i dont know why in principle that would be so different from the statute at issue in baker, which says no state shall issue a bearer bond. Shall issue a a bearer bond. I think its the same. To the extent there would be anything odd about it, and its what mr. Olson suggests is odd about paspa, is the idea theres a preemption provision. If congress regulated the field, there would be no problem with the preemption. Something a little more odd about it, which is it goes to the fundamental powers and prerogatives of a state to sort of function their own government. If you say you can go so far as to regulate what level of income tax they can charge. Youre right, mr. Chief justice. Maybe i should amend my remarks. I dont think it would be a commandeering problem with that statute. There might be some other federalism problem. I think if the court if Congress Tells a state to move its state capital, im not sure its a commandeering problem. I just think its not to use a word maybe im not supposed to, but maybe a National League of cities problem, but i dont think its a commandeering problem. You could imagine a situation where its the same kind of commandeering. The federal government wants to reduce expenditures on Public Employee pensions. So it tells the states theres a state law, you cannot spend more than 20 of your budget on state employee pensions. Theyre commandeering the state to achieve that result. Can they do that . Again, i dont think thats a commandeering problem. I do think its probably a National States league of cities problem. If the court wants to say that there are certain things that get too far into the states kitchen, you know, thats one thing. But i do hypothetical indicates that this blurs political accountability. The citizen doesnt know, is this coming from the federal government, from the State Government . Thats precisely what federalism was designed to prevent. And precisely in new york, this court said theres not an accountability problem with preemptive legislation. I do think its worth just to finish the point, i do think its worth recognizing that you have three pieces, three legs of the stool, if you will. One says the states, you cant do this. That, the other side doesnt have an objection to. The other says private parties, you cannot do this pursuant to state law. Because its a regulation of private parties are there other statutes that rely on prohibition of state action without an accompanying federal policy . Justice kennedy, i dont know that there are. I think maybe there are, but its just the federal policy they enforce is implicit. Theres a provision that says you cant have discriminatory taxes against railroads. Thats all the provision says. I assume in interpreting that, you would think congress has said they dont want to have that kind of discrimination interstate commerce. But here, you dont have to look where the federal policy is. They say we dont 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 its illegal for entities, people or otherwise, to engage in gambling on Sports Events . That would be the federal government regulating this area. Then it has what is the normal preemption clause where it says not withstanding any state law to the contrary . And mr. Chief justice, i think at the end of the day, thats what paspa does. I think it was worded in a particular way for a particular reason, which is one set of federal statutes you should look at in interpreting paspa 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 in violation of state law, that was already a federal felony. 1084, title 18, 1301 through 1304 title 18 as to lotteries and probably most thats a very odd way and this is, of course, subsection 2, a very odd way to phrase something. Its illegal if its pursuant to state law. In other words, if the state law says you can do it, thats the only situation in which its illegal. If the state law doesnt say anything about it, feel free, you can do it. Mr. Chief justice, thats why i think the oddity goes away entirely that if you understand before Congress Passed paspa, 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. Violation of state law. In violation of state law. We go back for a second. One of the purposes which is not the one Justice Kagan mentioned, but the best one in this case that i could find is the notion that federal statutes should address themselves to individuals and not to states. All right, now that cant be 100 true because we have all preemption, but you can still look at it as basically true with preemption being a commerce claus based, for example, exception. Then ask what have we here. Well, is there nhtsa, transportation act, osha, nothing like that. There is no federal regulation of that kind. Is there deregulation act which says it is the federal policy that there will be preenterprise and fares . No, because all the things you mentioned have the word state law in it. So all we have here are a group, if you like, 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, the notion of not addressing itself to the states, and its long so you can answer the whole thing. Well, ill try to answer the whole thing, but ill start with the proposition that we know theres absolutely nothing wrong with congressional legislation that operates on states as market actors. And thats what the first four prohuh bishz prohibitions in 37021 plainly do. They tell the states you cant operate, advertise, sponsor, or promote sports gambling schemes. So thats okay. It also tells private parties that you cant do those four things pursuant to state law. And keep in mind, those private parties cant do it as a matter of federal law in violation of state law. Because its a federal criminal prohibition. All that leaves then is the provisions they have challenged or authorized. And all those are in the context of this statute is an expressed preemption provision, which of course its addressed to the states and local governments because states and local governments are the ones who can pass laws that might be preempted, but i dont think it creates a problem. Its very analogous to baker. In baker, Congress Told the states they couldnt have bearer bonds. They also told private parties you cant have bearer bonds. But you begin by saying that this is Market Participant as the first three, but not as to the fourth. I dont mean to be pedantic. Its Market Participants for the first four, not to the fifth and the sixth, which i licensed and authorized. But my point is, youre already telling the states that they cant do something Just Like Congress did in baker. You cant issue bearer bonds. 37022, especially read against the backdrop of statutes tells private parties you cant issue bearer bonds. You cant operate sports gambling schemes. So the only thing in the middle is a provision that says states, you cant authorize or license private parties to engage in conduct that violates federal law. If that provision werent in the statute, i think the same laws would be impliedly preempted under those that apply in applied preemption, and if Congress Says expressly, those laws, states, dont do that, dont authorize and dont license private parties to engage in conduct that would violate federal law, thats classic preemption. You said subsection 2 is the other side of the coin of subsection 1. And it seems to me that if thats the case, that subsection 2 cannot be severable from subsection 1. I dont know if i used the phrase the other side of the coin, your honor, but i do think it is not just severable, i think it operates independently, and it operates without even a constitutional issue. To do the same thing, right . Because it says it is illegal for individuals to follow state law when engaged in activity protected, authorized under state law. Which seems to me the be the same thing as saying states shall not authorize individuals to do that. Well, your honor, a couple points. One is i do think theres some difference in text between 37022 and 37021. And i think theres an argument that the parties havent had to brief here because this really havent been a 3702 case, but theres a good argument that 37022 is broader, and pursuant to law, its broader than licensed or authorized by law. Just put that to one side, though. What 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 gambling scheme in violation of state law a federal criminal prohibition, then its a comprehensive scheme. It basically says private parties. Theres something that is essentially a cancer on interstate commerce that we dont want to take place. And that is how do we know that congress would have passed two without one . One makes the regulation free because it says states, you have to do this. And it doesnt cause any budget impact on the federal government. Two, under your interpretation, is a direct regulation by the government and therefore might cost money. And you could see a legislature saying, well, you know, one makes sense. And im only going to vote for two because of one. Because its free. It comes for free. So justice gorsuch, i would like to make two points in response to that. One is on this idea that the cbo scored it as being zero so its free, we actually looked at other preemption provisions and other federal criminal provisions, and cbo tends to score them the same way. They basically say thats neither here nor there. My question is, if were asking the severability question that the chief justice posed to you, one of the questions we have is what congress would have done in a different world. Now, thats a very hard question to answer, but thats the question were posed. And how do we know congress would have passed two without one . Given that two in this world, if ones fine, two comes for free. So justice gorsuch, if i could, i would like to refine the question in this way. You tell me if its unfair. I think really the critical question is would congress have wanted to have the first four prohibitions in one and the prohibitions in two if it couldnt have the licensed or authorized by law provision . I think thats the relevant question because their constitutional argument only goes to licensed or authorized by law. I think although all of these counterfactual questions are difficult, i think this might be the easiest one youll ever have because i think the statute operates almost the same way. The net effect of a statute that said that states cant sponsor operate, advertise, promote sports gambling schemes and neither can private parties pursuant to state law, and by the way, they cant do it in violation of state law because of other provisions, what it would mean is we should have gone for the injunction against the private parties, which by the way, we did in the district court, and that issue i think is still there in front of the district courts. We first filed our tro, we went against the state and against the private parties. We got a tro against both and then there was an unclean hands argument that arose only with the private parties so the district adjoined only the states. The net effect of these two statutes without authorize or license, is the same as a statue that left that to implied preemption. Its essentially the same statute. I think in a counterfactual world, would Congress Want a statue that still told the states that you cant operate or advertise sports gambling schemes and told private parties that you cant operate sports gambling schemes pursuant to state law, and oh, by the way, you cant do it in violation of state law anyway because it violates a bunch of criminal prohibitions. Obviously, they want that. This express preempt provision, its not vital. One sentence answer. In the Airline Deregulation act, Congress Wanted a world, ie, the United States, where Market Forces set prices. In all the acts youre talking about put together, Congress Wanted the United States fill in the blank. The Congress Wanted there to be, putting aside the grandfather clause, no state sponsored or operated gambling taking place by either individuals or by the state. Now, you had to use state sponsored, and as soon as you had to describe it, you had to use state sponsored there. State sponsored means legislation, and therefore, there is no interstate policy other than the interstate policy of telling the states what to do. Can i amend my answer . Yes. Congress in all of these statutes did not want there to be sports gambling schemes operating in interstate commerce. They were indifferent. Congress could have prohibited sports gambling itself, so what federal policy is served by this statute that would not have been served by the former . Two things, justice alito. First is congress could have prohibited all sports gambling, but that would have required it to regulate individuals as sports gamblers as opposed to entities, businesses that were providing sports gambling. Thats how i amend the question. Congress could have prohibited Gambling Enterprises itself, no question they could have done that, assuming its within the commerce clause. What policy does this statute serve that that would not . Ironically enough, justice alito, it 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 going to face two years in a federal penitentiary and a fine of 10,000, this statute basically says look, 46 states right now are more or less doing what we want, but theyre doing in it 46 different ways. Where does it serve the interest of making it cheap by allowing congress not to have to expend any funds to enforce its laws . With all due respect, i dont think trying to do this on the cheap was their principle concern, as i said. As a general matter, when Congress Passes a new federal statute, criminal statute, it doesnt have like a big budgetary impact because you dont have to make a new ausa to enforce that statute. You let everybody enforce it and the enforcement priorities that Justice Sotomayor alluded to work on the federal level as well. If you preempt state law, that tends to not have a budgetary impact either. But whats distinct about this is that it basically says, look, 46 states, if you want to regulate this in 46 different ways, have at it. If you want to repeal those laws, you can do it. That repeal itself wont violate 37021. The sports gambling that takes place pursuant to it might violate 37022. I think rather than have a one size fits all federal felony where everybody is going to get the same exact sentence, having a system where one state makes it a misdemeanor, another state makes it a felony, another state goes at it with all their enforcement policies whats the line you would draw as between preemption and commandeering . I would draw the line this court drew in new york versus prince because it was writing against the preemption statutes that various parties were saying relevant and the court was distinguishing. I would say unless Congress Tells states they must pass federally prescribed legislation or enforce a federal policy whats the difference between saying you must pass a certain piece of legislation and saying you must maintain a piece of legislation on the books . I dont think that there is a distinction necessarily between those two, but i dont think thats what paspa does. Paspa doesnt say thou must maintain your existing prohibitions on the books. How is it different than that . Its different about that because it basically tells the states, look, you want to repeal that prohibition, you can do that. Your act of repealing the law will not violate paspa. Okay. That prohibition you can do that, your act of repealing the law will not violate pasba. Think about it in analogy to baker. If a state repealed a preexisting prohiggs nothing would happen. If on the other hand the state itself started issuing buyer bonds because there is no longer prohibition or the state itself did it because there was no longer a prohibition that action would violate the federal statute. Thats the way paspa works. Could Congress Just go through federal statutes of the states and pick out a long list of statutes that cant be repealed except in full. May i answer the question. Certainly. I dont think it can do that. I think what congress did here is say look we already say as a variety of provisions that people who engage in gambling in violation of state law violate federal law. It now we are going to complete your federal policy saying look we dont care if you do it in violation of federal law, thats criminal. I dont think thats a constitutional problem. Thank you, counsel. Mr. Wall. Mr. Chief justice, and may it please the court, i think mr. Olson has boiled down the states case to what i take to be his two basic arguments. This is a commandeering problem because new jersey is forced to keep a law on its books and there is no comprehensive federal regime. I disagree. Look at page 383 of the ja. The injunction does to the remotely require a state to keep a law on its books. It says the state cannot give operation or effect to its preemptive law. Thats almost word for word what Justice Scalia said in prince. If the state pass as law that is preempted by federal law the state and state officials can be required not to give effect to that preemptive law. S that not condescription in any meaning of the word. I think this a federal statute often says states may not regulate interstate commerce in a particular way because the federal policy is just that the states take their hands off of that particular part of interstate commerce. Each if the court thinks it is a principle it doesnt need to reach it here because there is a federal regime beyond passpa itself. It criminalizes gambling schemes in violation of state laws. Congress handled the other half of the circle and said all right look we are not going to make it criminal but we will give an injunketive action to the attorney general and the leagues so if states start authorizing sports gambling schemes which we know states and individuals cant do, then if states start doing that we will give a civil injunketive action and thats less invasive of state sovereignty. As mr. Clint says its baker all over again. The states cant do and it the individual cant do it. Can you go back to the basic question. It was raised by judge if a went he is. Who said you start this discussion are the fact that the law exists if it is a partial or full repeal, the law doesnt exist. Period. End of story. And thats the baseline. So why is a partial repeal un or in violation of the preemption clause . Because if the law didnt exist, the fact that they have carved out a certain section of the population for whom the law will stay in existence, thats not actually authorizing. Thats just merely repealing. I think thats right for a lot of the things that the state would do. But when the state says nobody can run a lottery or a sports book except for the licensed casinos and racetracks thats the part that the court avoided. I havent looked at the licensing laws in new jersey because they werent provided to us and it was further afield than the question presented 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 in, say, your authorize you are authorized to do any gambling permitted by law. Then you might have an argument. But if all they do is repeal, what does it matter. I think its even simpler than that justice. They want to interpret the statute as barring all repeals so they can make it a strugsal problem and leverage that to try to take down the entire thing. Our point is simple. If the court sticks to what it says in gunther and says an authorization is affirmative enabling conduct thats disrepeal because it channels to providers. Where is the line . The Third Circuit said de minimus private gambling isnt covered on page 30 of your brief, you indicate maybe the state could have a certain dollar threshold and that wouldnt be authorizing. Im really not clear why that wouldnt be authorizing if you specify a 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 Draw the line . I think the only thing the court needs the say here justice is in the context of paspa, if you or however the states get there, legislating up or down, amendment, repeal, it doesnt matter, if its. Chaing sports gambling to particular state preferred providers thats an authorization. We have no record of that as the justice points out. And why shouldnt the respondent have to live with that invited error perhaps now in this case . Justice, i dont think it is a record question. I think its look in the 2012 law they affirmatively said we are only going to get the casinos and racetracks do it. That was a problem. They didnt dispute it violated passpa. But then they said we will repeal our prohiggs but only for the racetracks. Im sorry. The he willier version explicitly licensed, explicitly licensed instead of complete operations and other things. I dont think they would have had a snowballs chance to say that that wasnt licensing or effectively operating. But here what they are saying is there were no laws. There is a law prohibiting all gambling. We are now going the repeal part of it and say some gambling is okay. So unless what the court wants to say is no repeal can be an authorization, even if new jersey took away its prohibition only at the gore gatta which would be a road map for flouting the clause unless the court is prepared say a repeal can never be an authorization, this repeal i think all the court needs the afford passpa purposes if you arable chaing thats an authorization, and read in that way there is in constitutional problem because it requires affirmative conduct by the state to enable. Its no longer condescription. We are not telling them they have to maintain anything. The state can sit there and do nothing and its perfectly compliant. What if the repeal is across the board, no exceptions . If new jersey repeals prohibitions we have said we have no problem with that. Its that serious, you have no problem if there is no prohibition at all and anybody can engage in any kind of gambling they want, 12yearold can come into the casino and your not serious . Im very serious. The question was state sanctioned and sponsored sports gambling schemes. It didnt care if we had an office pool. It wasnt going after all sports gambling. When you put the state in the position thats the only thing they can do thats not a real choice. Its not the only thing they can do. They can strengthen, repeal in whole or in part. The one thing they cant do is engage in the conduct that Congress Took off the table, thats the definition of preemption. The last time around the government did say in recommending that we deny sir that passpa does not require new jersey to retain prohibitions it adopted prepasspa, it is free to repeal those prohibitions in whole or in part. Thats what the government represented to this court. Was that statement inaccurate . No. I think we did not take into account the gamesmanship in which new jersey was going the engage. We said the same thing we are saying here today. They have got a lot of options on the table. The one thing they cant do is the one thing that congress preempted. They can engage in partial repeals but we didnt have in mind that new jersey would come back and do the 2012 law and style it as a partial repeal. And dropped the footnote and said if new jersey tries to do the same thing but styles it as Something Different that will cally be a prehicks pour passpa purposes. The assumption was true for a long time that if states start lifting their prohibitions in whole i think congress may want to revisit that. But passpa doesnt have anything to say about it. What new jersey is doing is creating an unnatural interpretati interpretation. Thats not the way statutory interpretation and severability normally work but thats they need to do that to get to where they want to go. You are saying this is an authorization not a epeel because its limited to the casinos which probably he have all other kinds of rules and wrecklations, 9 00 a. M. Opening and da, da, da. If those interpretations it mtsd amounts to a simple repeal not an authorization. Exactly. Any law that says everybody cant do it except for you two or three, thats an authorization, and it doesnt matter whether the state gets there by legislating up or down. Once you say that, i think their argument is that you see there is no federal policy which says states cant there is no federal policy against authorizing sports gambling but for a federal policy that says a state cant authorize sports gambling. And that is to commandeer. Have i got that right. I think that is their argument. But init doesnt make sense for the simple reason mr. Clement gave. Baker would not have been different if in addition to having a prohibition on states and individuals it had said states are preempted if they try to authorize private conduct thats separately barred by the act. If that is a commandeering, the government would admit its going to spend a long time trying to unblur the line between preemption and commandeering. Thank you. Five minutes, mr. Olson. If i got your argument right just now, just say yes. Otherwise, foreget it. You had it right before. But i had it right just now . Okay, forget it. I have a question following up on what the chief asked earli earlier. The spendent says that new Jersey Legislature is doing exactly what he thinks they shouldnt do or wouldnt do, which is they are considering legislation that would fully repeal the Sports Betting prohibitions. I understand its being considered by both houses. Where does that consideration stand right now. I dont know where it stand. And i think its utterly irrelevant. But you argued to us that no state legislature would do that. But here we have we have two bills introduced that would do just that. Well, they have not they are not laws yet. And what i said was congress could not possibly have intended in a bill to prohibit this expansion of Sports Betting to have it construed in a way that would why . With all limitations. Let me ask you, whats so crazy about congress perceiving that states would never want 12yearolds to go into gambling houses and that the states would find some way of printing that or living with rules of some sort of creating laws, regulations of conduct that would prohibit that sort of thing. What congress can do is enact a statute that places restrictions on Sports Betting and have a finely reticular lated statute. It can adopt the provision that it permitted nevada to have, which is careful regulation of something thats taking place. What we have now is activity that is billions of dollars that is taking place throughout the United States. It is all unlawful. What new jersey decided to do. Thats your selective our selective prosecution theory, that they are permitting fantasy teams . No, no, no, im not talking about fantasy at all. Im talking about betting on sports games. There are four states that are permitted to continue. Nevada, nevada has Sports Betting, and it has it regulated. It prohibits criminals from going into the business. It has open books and so forth. Those other three states were small slivers of loerts. What im saying is, and all of the evidence supports this, that betting on sports is taking place all over the United States. 5 of it is legal in nevada. The rest of it is illegal. New jersey decided we are going to why dont we why dont we legalize this is a hypothetical marijuana because and all drugs, because there is a rampant market out there for those drugs . But weve made a policy choice that we dont want the state involved in promoting that type of enterprise. Why is this any different. The congress of the United States enacted laws with respect to marijuana and with respect to other substances. And thats in play right now because various states have done various different things. But we have no question here that what congress intended to do was pass a law. We look at the statute. As i said before, the statute says it is an act to prohibit sports gambling under state law, not under federal law. The preemption process starts with the idea that there must be a federal constitutional provision in a statute or in the treaty 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. Section 310 regulated states activities does not seek to control or influence the manner in which states regulate private parties. And the same thing is true in the reno case. My opponent talked about statutes of general application. In the last sentence of that case, this court specifically reserved the question whether congress could single out states with respect to activities and didnt decide whether it could do so in the outside the context of a statute or general application. When this suit was first filed by the leagues, their complaint specifically said, passpa imposes a broad ban on Sports Betting subject only to the narrow exceptions that apply here. We have an extra couple of minutes. Thank you mr. Chief justice. This is, as the federal government said on page 15 of the federal governments previous, we are saying that state laws that attempt to change what new jersey has done are nullified bypasspa. Anyone familiar as this court is of the history of the Constitutional Convention knows there is specifically on the agenda an opportunity for congress to nullify state laws. That was defeated. The whole debate with respect to federalism had to do with whether congress was going to be permitted to regulate interstate regulate states, or would it be required to regulate commerce first and as anned a juchkt to that constraint what states could do. And thats exactly what this statute did. The federal government, the Congress Wanted a prediction under state law because it would have no responsibility, no accountability, and our opponents brief says if you are complaining about accountability, call your senator. Thats exactly what the United States talked about, what this court talked about in new york versus the United States. The accountability is very important. The structure is important to the liberty of citizens. And this statute violates that ordained structure. Thank you counsel. The case is submitted. Heres whats coming up today on cspan3. Next a forum on defense and security, including remarks by the u. S. Navy secretary. After that a Senate Armed Services Committee Hearing looking at the defense departments acquisition practices. And then the Senate Judiciary committee looks at changes in gun background checks including a ban on devices that increase the fire rate on some guns. And then primetime begins at 8 00 eastern with cspans cities tour programs featuring charlottesville, virginia. Sunday on cspans q a. I propose action before words, i propose action now before it is too late. I propose it for the sake of a better world. But i say again and again and again that i propose it for our own american self interests. Hendrick hank myer, with his book, arthur van danberg, the man of the middle of the american century. Van denberg finds himself in opposition when fdr is elected when the democrats in the early 1930s take majority in the senate. Hes in opposition for the next dozen years. And that means that to get anything done, which often meant resisting some of Franklin Roosevelts initiatives, there needed to be a coalition. He had to reach across the aisle. Q and a, sunday night at 8 00 eastern on cspan. Coming up next, a forum on Global Security and a recently completed naval review of the seventh fleet collisions at sea that took place last year. The vice chief of Naval Operations also speaks at this u. S. Naval institute forum. I would like to ask everybody to come back in and take your seats. Okay. Weve had two excellent keynote briefs this morning. Both our speakers spoke to the comprehensive review. The u. S. Navy issued the comprehensive review of the recent incidents at sea that have occurred within the last year, almost all obviously forward in the western pacific. One aegis cruise hear the grounded. Another thatas