Yesterday, the Supreme Court held that the Professional and Amateur Sports Protection Act (PASPA) violates the anti-commandeering doctrine because it prohibits states from authorizing sports gambling. The Court last applied the anti-commandeering doctrine in New York and Printz, both of which were decided in the 1990s. Under the doctrine, “Congress may not simply ‘commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Despite widespread academic criticism of the doctrine, the Court in Murphy reaffirmed that anti-commandeering is “fundamental.” I had three reactions to this case, which I discuss after the fold.
First. Reaffirming the anti-commandeering doctrine is welcome news. As I argued earlier on this blog (here, here, and here) the anti-commandeering doctrine is both constitutionally sound and an important legal tool against the federal government’s attack on sanctuary cities.
Second. The Court continues to ignore the historical origins of the anti-commandeering principle. As I discuss in a newly posted article on Prigg v. Pennsylvania, the Supreme Court first endorsed the doctrine in 1842. And yet, the Court asserts: “Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, . . . .” My guess would be that the Court doesn’t want to rely on proslavery precedent. However, Justice Story’s opinion for the Court in Prigg used the anti-commandeering doctrine to cast doubt on whether state law enforcement officers could enforce the Fugitive Slave Act of 1793. Although the doctrine appeared in a proslavery decision, it arguably produced antislavery results.
Third. I wonder if the Court’s expansion of the anti-commandeering doctrine is coherent. New York and Printz held that Congress cannot require the states to pass legislation or enforce federal law. The Third Circuit held that PASPA did not violate the anti-commandeering doctrine because it did not require the states to take any such affirmative action. Instead, PASPA merely prohibits the states from taking action (authorizing sports gambling). The Court refutes this argument by stating: “This distinction is empty. It was a matter of happenstance that the laws challenged in New York and Printz commanded ‘affirmative’ action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.
In sum, the Court is saying that Congress cannot prohibit the states from passing certain types of laws. This is different than preemption, the Court says, because with preemption there is actually a federal law in place that the state law would interfere with. For example, Congress could pass a law making it a federal crime to gamble on sporting events, and this would preempt any state law authorizing gambling. But, the Court says, Congress cannot skip the federal regulation and simply prohibit the states from passing laws to authorize gambling.
This makes sense on the facts of Murphy. In this case, New Jersey attempted to circumvent PASPA by repealing its prohibition on sports gambling. The Third Circuit held that, under the circumstances, this repeal was an “authorization” of sports gambling. SCOTUS agreed but held that PASPA was unconstitutional because it prohibited New Jersey from changing its laws on sports gambling. If Congress cannot force the states to enact a regulation, the Court reasoned, it shouldn’t be able to lock states into existing regulations by preventing a change in state law.
But the broader language in opinion quoted above seems problematic. Does the Court really mean that the federal government cannot prohibit the states from regulating an area? I am not an expert on federal statutory law, but I can think of one area of law where this happens routinely. In the Dormant Commerce Clause Doctrine (DCCD), aren’t the courts saying that Congress’s failure to regulate an area implicitly prohibits state regulation? If the failure to regulate can act as a prohibition on state regulation, then why can’t Congress just announce the same thing in a statute? This would seem to be especially appropriate in a borderline case.
For example, there is no federal law mandating the minimum size of chicken cages. California passed legislation requiring that all eggs sold in California—even when produced in another state—come from chickens raised in larger cages. (For details on this litigation, see my article here.) Missouri and other states filed a lawsuit, but the federal court held that they lacked standing. Under Murphy, I would think that Congress cannot pass a law prohibiting the states from mandating a minimum cage size. But couldn’t the courts reach the same result and strike down the California law under the DCCD? And how would this be any different? Under the DCCD, the courts would be saying that Congress’s failure to regulate carries with it a negative implication. In other words, the failure to regulate is the same thing as a prohibition on regulations, and this is the very thing that Murphy says Congress cannot do. I suppose Alito might respond that Congress can pass its own federal law mandating the permissible minimum size of chicken cages if it wants to preempt the California law. But why can’t Congress require an area of law to be left unregulated?
The Court did not need to announce such a broad interpretation of the anti-commandeering doctrine to decide Murphy. As I argue in my article on Prigg, I think the Court generally should avoid issuing such broad constitutional rulings.
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