George F. Will
WASHINGTON – Repeal of Prohibition in 1933 instantly reduced crime by reducing the number of criminalized activities, including some that millions of Americans considered victimless activities and none of the government’s business. Now, America is going to become more law abiding, the Supreme Court having said that the federal government cannot prohibit states from legalizing what Americans have been doing anyway with at least 150 billion of their dollars annually. This large figure (almost five times the combined revenues of MLB, the NFL, NBA and NHL; 14 times the movie industry’s domestic ticket sales) is a guess and might be much less than the actual sum that Americans wager on sports.
In 1992, when sports betting was illegal in most states, Congress, prompted by New Jersey Democratic Sen. Bill Bradley (Princeton all-American basketball player, Olympian, New York Knick), passed the Professional and Amateur Sports Protection Act (PASPA). This did not do what Congress has the power to do: Because the court’s permissive construing of Congress’ power to regulate all sorts of more or less economic activities for all sorts of reasons, Congress could criminalize sports gambling. Instead, however, it gave New Jersey, alone among the 46 states that did not already have such betting, one year to adopt it, after which New Jersey would be forbidden to do so.
Illegal sports betting was estimated to involve only $25 billion annually when PASPA was passed. Its subsequent burgeoning is redundant evidence that restraining a popular appetite with a statute is akin to lassoing a locomotive with a cobweb, which should chasten busybody governments. While one should formally frown upon the lawlessness of wagering Americans, their anarchic tendencies are, on balance, wholesome.
Also in 1992, the Supreme Court began enunciating the “anti-commandeering” doctrine: The federal government may not pursue its objectives by requiring states to use, or refrain from using, their resources for those objectives. The Constitution’s 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) means, the court has held, that “while Congress has substantial powers to govern the nation directly, including in areas of intimate concern to the states, the Constitution has never been understood to confer upon Congress the ability to require the states to govern according to Congress’ instructions.”
In a 2011 referendum, New Jersey voters strongly approved sports betting; two months later, the Legislature approved such betting in casino sports books and at horse tracks. After courts twice held that New Jersey was violating PASPA, the state appealed to the Supreme Court, saying: “Never before has federal law been enforced to command a state to give effect to a state law that the state has chosen to repeal.”
This month the court ruled, 6-3, in favor of New Jersey and three principles of good government that are threatened by federal commandeering. Writing for the majority, and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch, Samuel Alito said: The anti-commandeering rule protects individual liberty by maintaining a “healthy balance of power” between the states and the federal government. The rule “promotes political accountability” because “voters who like or dislike the effects” of a regulation “know who to credit or blame.” And the rule “prevents Congress from shifting the costs of regulation to the states.”
This season, an NHL team began playing in Las Vegas, where the NFL’s Oakland Raiders will relocate in 2020. Because of what the court did Monday, soon a majority of states, with a majority of the nation’s population, probably will be regulating and taxing legalized sports gambling. The unembarrassable National Collegiate Athletic Association has said without blushing that sports betting threatens “student-athlete well-being and the integrity of athletic competition.” Actually, an infusion of run-of-the-mill back-alley bookies in soiled raincoats might elevate college basketball’s moral tone.
Just after PASPA was enacted, 56 percent of Americans opposed legalized betting on professional sports events. A quarter of a century later, 55 percent approve. The nation’s most insistent promoters of gambling are state governments that run lotteries. Law lags morals, but not forever.
The professional sports leagues were on the losing side Monday, but will find ways to profit from betting on their products. Mark Cuban, owner of the NBA’s Dallas Mavericks and a maverick himself, thinks that intensified fan interest will double franchise values across baseball, football, basketball and hockey. Want to bet against him? Go ahead.
George Will’s email address is [email protected] © 2018, Washington Post Writers Group