RENDELL, Circuit Judge:
The issue presented before the en banc court is whether SB 2460, which the New Jersey Legislature enacted in 2014 to partially repeal certain prohibitions on sports gambling (the "2014 Law"), violates federal law. 2014 N.J. Sess. Law Serv. Ch. 62, codified at N.J. Stat. Ann. §§ 5:12A-7 to -9.
Congress passed PASPA in 1992 to prohibit state-sanctioned sports gambling. PASPA provides:
28 U.S.C. § 3702 (emphasis added). PASPA defines "governmental entity" to include states and their political subdivisions. Id. § 3701(2). It includes a remedial provision that permits any sports league whose games are or will be the subject of sports gambling to bring an action to enjoin the gambling. Id. § 3703.
Congress included in PASPA exceptions for state-sponsored sports wagering in Nevada and sports lotteries in Oregon and Delaware, and also an exception for New Jersey but only if New Jersey were to enact a sports gambling scheme within one year of PASPA's enactment. Id. § 3704(a). New Jersey did not do so, and thus the PASPA exception expired. Notably, sports gambling was prohibited in New Jersey for many years by statute and by the New Jersey Constitution. See, e.g., N.J. Const. Art. IV § VII ¶ 2; N.J. Stat. Ann. § 2C:37-2; N.J. Stat. Ann. § 2A:40-1. In 2010, however, the New Jersey Legislature held public hearings on the advisability of allowing sports gambling. These hearings included testimony that sports gambling would generate revenues for New Jersey's struggling casinos and racetracks. In 2011, the Legislature held a referendum asking New Jersey voters whether sports gambling should be permitted, and sixty-four percent voted in favor of amending the New Jersey Constitution to permit sports gambling. The constitutional amendment provided:
N.J. Const. Art. IV, § VII, ¶ 2(D). The amendment thus permitted the New Jersey Legislature to "authorize by law" sports "wagering at casinos or gambling houses in Atlantic City," except that wagering was not permitted on New Jersey college teams or on any collegiate event occurring in New Jersey. An additional section of the amendment permitted the Legislature to "authorize by law" sports
After voters approved the sports-wagering constitutional amendment, the New Jersey Legislature enacted the Sports Wagering Act in 2012 ("2012 Law"), which provided for regulated sports wagering at New Jersey's casinos and racetracks. N.J. Stat. Ann. §§ 5:12A-1 et seq. (2012). The 2012 Law established a comprehensive regulatory scheme, requiring licenses for operators and individual employees, extensive documentation, minimum cash reserves, and Division of Gaming Enforcement access to security and surveillance systems.
Five sports leagues
In Christie I, we rejected the New Jersey Parties' argument that PASPA was unconstitutional by commandeering New Jersey's legislative process. In doing so, we stated that "[n]othing in [PASPA's] words requires that the states keep any law in place. All that is prohibited is the issuance of gambling `license[s]' or the affirmative `authoriz[ation] by law' of gambling schemes." Id. at 232 (alterations in original). The New Jersey Parties had urged that PASPA commandeered the state because it prohibited the repeal of New Jersey's prohibitions on sports gambling; they reasoned that repealing a statute barring an activity would be equivalent to authorizing the activity, and "authorizing" was not allowed by PASPA. We rejected that argument, observing that "PASPA speaks only of `authorizing by law' a sports gambling scheme," and "[w]e [did] not see how having no law in place governing sports wagering is the same as authorizing it by law." Id. (emphasis in original). We further emphasized that "the lack of an affirmative prohibition of an activity does not mean it is affirmatively authorized by law. The right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people." Id. (emphasis in original). In short, we concluded that the New Jersey Parties' argument rested
Undeterred, in 2014, the Legislature passed the 2014 Law, SB 2460, which provided in part:
N.J. Stat. Ann. § 5:12A-7. The 2014 Law specifically prohibited wagering on New Jersey college teams' competitions and on any collegiate competition occurring in New Jersey, and it limited sports wagering to "persons 21 years of age or older situated at such location[s]," namely casinos and racetracks. Id.
Procedural History and Parties' Arguments
The Leagues filed suit to enjoin the New Jersey Parties from giving effect to the 2014 Law. The District Court held that the 2014 Law violates PASPA, granted summary judgment in favor of the Leagues, and issued a permanent injunction against the Governor of New Jersey, the Director of the New Jersey Division of Gaming Enforcement, and the Executive Director of the New Jersey Racing Commission (collectively, the "New Jersey Enjoined Parties").
On appeal, the New Jersey Parties argue that the 2014 Law does not constitute an authorization in violation of PASPA and it is consistent with Christie I because the New Jersey Legislature effected a repealer as Christie I specifically permitted.
The Leagues urge that the 2014 Law violates PASPA because it "authorizes by law" sports wagering and also impermissibly "licenses" the activity by confining the repeal of gambling prohibitions to licensed gambling facilities and thus, in effect, enlarging the terms of existing gaming licenses. The United States submitted an amicus brief in support of the Leagues.
A panel of this Court affirmed in a divided opinion, which was subsequently vacated. Because we, sitting en banc, essentially agree with the reasoning of the panel majority's opinion, we incorporate much of it verbatim in this opinion.
The 2014 Law Violates PASPA
As a preliminary matter, we acknowledge the 2014 Law's salutary purpose in attempting to legalize sports gambling to revive its troubled casino and racetrack industries. The New Jersey Assembly Gaming and Tourism Committee chairman stated, in regard to the 2014 Law, that "[w]e want to give the racetracks a shot in the arm. We want to help Atlantic City. We want to do something for the gaming business in the state of New Jersey, which has been under tremendous duress ...." (App. 91.) New Jersey State Senator Ray Lesniak, a sponsor of the law, has likewise stated that "[s]ports betting will be a lifeline to the casinos, putting people to work and generating economic activity in a growth industry." (App. 94.) And New Jersey State Senator Joseph Kyrillos stated that "New Jersey's continued prohibition on sports betting at our casinos and racetracks is contrary to our interest of supporting employers that provide tens of thousands of jobs and add billions to our state's economy" and that "[s]ports betting will help set New Jersey's wagering facilities apart from the competition and strengthen Monmouth Park and our struggling casino industry." (App. 138.) PASPA has clearly stymied New Jersey's attempts to revive its casinos and racetracks and provide jobs for its workforce.
Moreover, PASPA is not without its critics, even aside from its economic impact. It has been criticized for prohibiting an activity, i.e., sports gambling, that its critics view as neither immoral nor dangerous. It has also been criticized for encouraging the spread of illegal sports gambling and for making it easier to fix games, since it precludes the transparency that accompanies legal activities. Simply put, "[w]e are cognizant that certain questions related to this case — whether gambling
We now turn to the primary question before us: whether the 2014 Law violates PASPA. We hold that it does. Under PASPA, it shall be unlawful for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports gambling. 28 U.S.C. § 3702(1). We conclude that the 2014 Law violates PASPA because it authorizes by law sports gambling.
First, the 2014 Law authorizes casinos and racetracks to operate sports gambling while other laws prohibit sports gambling by all other entities. Without the 2014 Law, the sports gambling prohibitions would apply to casinos and racetracks. Appellants urge that the 2014 Law does not provide authority for sports gambling because we previously held that "[t]he right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people" and that "[w]e do not see how having no law in place governing sports wagering is the same as authorizing it by law." Christie I, 730 F.3d at 232. But this is not a situation where there are no laws governing sports gambling in New Jersey. Absent the 2014 Law, New Jersey's myriad laws prohibiting sports gambling would apply to the casinos and racetracks. Thus, the 2014 Law provides the authorization for conduct that is otherwise clearly and completely legally prohibited.
Second, the 2014 Law authorizes sports gambling by selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling. Under the 2014 Law, New Jersey's sports gambling prohibitions are specifically removed from casinos, gambling houses, and horse racetracks as long as the bettors are people age 21 or over, and as long as there are no bets on either New Jersey college teams or collegiate competitions occurring in New Jersey. The word "authorize" means, inter alia, "[t]o empower; to give a right or authority to act," or "[t]o permit a thing to be done in the future." Black's Law Dictionary 133 (6th ed. 1990).
Appellants urge that because the 2014 Law is only a "repeal" removing prohibitions against sports gambling, it is not an "affirmative authorization" under Christie I. To the extent that in Christie I we took
The presence of the word "repeal" does not prevent us from examining what the provision actually does, and the Legislature's use of the term does not change that the 2014 Law selectively grants permission to certain entities to engage in sports gambling. New Jersey's sports gambling prohibitions remain, and no one may engage in such conduct except those singled out in the 2014 Law. While artfully couched in terms of a repealer, the 2014 Law essentially provides that, notwithstanding any other prohibition by law, casinos and racetracks shall hereafter be permitted to have sports gambling. This is an authorization.
Third, the exception in PASPA for New Jersey, which the State did not take advantage of before the one-year time limit expired, is remarkably similar to the 2014 Law. The exception states that PASPA does not apply to "a betting, gambling, or wagering scheme ... conducted exclusively in casinos ..., but only to the extent that ... any commercial casino gaming scheme was in operation ... throughout the 10-year period" before PASPA was enacted. 28 U.S.C. § 3704(a)(3)(B). The exception would have permitted sports gambling at New Jersey's casinos, which is just what the 2014 Law does. We can easily infer that, by explicitly excepting a scheme of sports gambling in New Jersey's casinos from PASPA's prohibitions, Congress intended that such a scheme would violate PASPA. If Congress had not perceived that sports gambling in New Jersey's casinos would violate PASPA, then it would not have needed to insert the New Jersey exception. In other words, if sports gambling in New Jersey's casinos does not violate PASPA, then PASPA's one-year exception for New Jersey would have been superfluous. We will not read statutory provisions to be surplusage. See Marx v. Gen. Revenue Corp., ___ U.S. ___, 133 S.Ct. 1166, 1178, 185 L.Ed.2d 242 (2013) ("[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme."). In order to avoid rendering the New Jersey exception surplusage, we must read the 2014 Law as authorizing a scheme that clearly violates PASPA.
As support for their argument that the 2014 Law does not violate PASPA, Appellants cite the 2014 Law's construction provision, which provides that "[t]he provisions of this act ... are not intended and shall not be construed as causing the State to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports wagering. N.J. Stat. Ann. § 5:12A-8. This conveniently mirrors PASPA's language providing that states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" sports wagering. 28 U.S.C. § 3702(1).
Appellants also draw a comparison between the 2014 Law and the 2012 Law, which involved a broad regulatory scheme, as evidence that the 2014 Law does not violate PASPA. It is true that the 2014 Law does not set forth a comprehensive scheme or provide for a state regulatory role, as the 2012 Law did. However, PASPA does not limit its reach to active state involvement or extensive regulation of sports gambling. It prohibits a range of state activity, the least intrusive of which is "authorization" by law of sports gambling.
We conclude that the 2014 Law violates PASPA because it authorizes by law sports gambling.
PASPA Does Not Impermissibly Commandeer the States
Appellants expend significant effort in this appeal revisiting our conclusion in Christie I that PASPA does not unconstitutionally commandeer the states. They
1. Anti-Commandeering Jurisprudence
As we noted in Christie I, the Supreme Court's anti-commandeering principle rests on the conclusion that "Congress `lacks the power directly to compel the States to require or prohibit' acts which Congress itself may require or prohibit." Christie I, 730 F.3d at 227 (quoting New York v. United States, 505 U.S. 144, 166, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)). In our prior survey of the anti-commandeering case law in Christie I, we grouped four commandeering cases upholding the federal laws at issue into two categories: (1) permissible regulation in a pre-emptible field, Hodel v. Virginia Surface Min. & Reclamation Ass'n, Inc., 452 U.S. 264, 101 S.Ct. 2389, 69 L.Ed.2d 1 (1981), and F.E.R.C. v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982); and (2) prohibitions on state action, South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988) and Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The Supreme Court has struck down federal laws on anti-commandeering grounds in only two cases, New York v. United States and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). We summarize our prior review below.
First, congressional action in passing laws in otherwise pre-emptible fields has withstood attack in cases where the states were not compelled to enact laws or implement federal statutes or regulatory programs themselves. In Hodel, the Supreme Court upheld the constitutionality of a law that imposed federal standards for coal mining. The law left states a choice. A state could "assume permanent regulatory authority over ... surface coal mining operations" and "submit a proposed permanent program" that "demonstrate[s] that the state legislature has enacted laws implementing the environmental protection standards ... and that the State has the administrative and technical ability to enforce the standards." Hodel, 452 U.S. at 271, 101 S.Ct. 2389. However, if a state chose not to assume regulatory authority, the federal government would "administer the Act within that State and continue as such unless and until a `state program' [wa]s approved." Id. at 272, 101 S.Ct. 2389. As we described in Christie I:
Christie I, 730 F.3d at 227-28. The Supreme Court's opinion in F.E.R.C. v. Mississippi the following year confirmed its view that a law does not unconstitutionally commandeer the states when the law does not impose federal requirements on the states, but leaves states the choice to decline to implement federal standards. 456 U.S. 742, 767-68, 102 S.Ct. 2126 (upholding a provision that required state utility companies to expend state resources to "consider" enacting federal standards, but did not require states to enact those standards).
Second, the Supreme Court has found Congress's prohibition of certain state actions to not constitute unconstitutional commandeering. In South Carolina v. Baker, the Court upheld federal laws that prohibited the issuance of bearer bonds, which required states to amend legislation to be in compliance. 485 U.S. at 511, 514, 108 S.Ct. 1355 (1988). As we characterized this case in Christie I:
Christie I, 730 F.3d at 228 (internal quotation marks and citations omitted). Later, in Reno v. Condon, the Court upheld the constitutionality of a law that prohibited states from releasing information gathered by state departments of motor vehicles. The Court ultimately concluded that the law at issue "d[id] not require the States in their sovereign capacity to regulate their own citizens[,] ... d[id] not require the [State] Legislature[s] to enact any laws or regulations, and it d[id] not require state officials to assist in the enforcement of federal statutes regulating private individuals." Reno, 528 U.S. at 151, 120 S.Ct. 666 (as altered in Christie I, 730 F.3d at 228).
As noted above, the Supreme Court has invalidated laws on anti-commandeering grounds on only two occasions. In New York, the Supreme Court struck down a "take-title" provision whereby states were required to take title to radioactive waste by a specific date, at the waste generator's request, if they did not adopt a federal program. As we stated in Christie I, the provision "compel[led] the states to either enact a regulatory program, or expend resources in taking title to the waste." Christie I, 730 F.3d at 229. The Supreme Court ultimately concluded in New York that the take-title provision "crossed the line distinguishing encouragement from coercion." 505 U.S. at 175, 112 S.Ct. 2408. Similarly in Printz v. United States, the Supreme Court concluded that Congress "may neither issue directives requiring the States to address particular problems, nor command the States' officers ... to administer or enforce a federal regulatory program." 521 U.S. at 935, 117 S.Ct. 2365 (finding a federal law requiring state officers to conduct background checks on prospective gun owners to commandeer the states in violation of the Tenth Amendment).
2. PASPA Does Not Violate Anti-Commandeering Principles
We continue to view PASPA's prohibition as more akin to those laws
In an attempt to reopen the anti-commandeering question we previously decided, Appellants creatively rely on certain language that was used in Christie I. In pressing for a declaration that PASPA unconstitutionally commandeered the states in Christie I, Appellants characterized PASPA as requiring the states to affirmatively keep a prohibition against sports wagering on their books, lest they be found to have authorized sports gambling by law by repealing the prohibition. In response, we opined that Appellants' position "rest[ed] on a false equivalence between repeal and authorization," implying that a repeal is not an authorization. 730 F.3d at 233. Before us now Appellants urge that "[t]his Court held [in Christie I] that PASPA is constitutional precisely because it permits States to elect not to prohibit sports wagering, even if affirmatively authorizing it would be unlawful." Appellants' Br. 22 (emphasis in original). Appellants are saying, in effect, "We told you so" — if the legislature cannot repeal New Jersey's prohibition as it attempted to do in the 2014 Law, then it is required to affirmatively keep the prohibition on the books, and PASPA unconstitutionally commandeers the states. We reject this argument.
That said, we view our discussion in Christie I regarding the relationship between a "repeal" and an "authorization" to have been too facile. While we considered whether repeal and authorization are interchangeable, our decision did not rest on that discussion. Today, we choose to excise that discussion from our prior opinion as unnecessary dicta. To be clear, a state's decision to selectively remove a prohibition on sports wagering in a manner that permissively channels wagering activity to particular locations or operators is, in essence, "authorization" under PASPA. However, our determination that such a selective repeal of certain prohibitions amounts to authorization under PASPA does not mean that states are not afforded sufficient room under PASPA to craft their own policies.
Appellants urge that our conclusion in Christie I that PASPA does not unconstitutionally commandeer the states rested on our view that PASPA allows states to "choos[e] among many different potential policies on sports wagering that do not include licensing or affirmative authorization by the State." Appellants' Br. 29. This is correct. PASPA does not command states to take affirmative actions, and it does not present a coercive binary choice. Our reasoning in Christie I that PASPA does not commandeer the states remains unshaken.
Appellants characterize the 2014 Law as a lawful exercise in the space PASPA affords states to create their own policy. They argue that without options beyond a complete repeal or a complete ban on sports wagering, such as the partial repeal New Jersey pursued, PASPA runs afoul of anti-commandeering principles. This argument sweeps too broadly. That a specific partial repeal which New Jersey chose to pursue in its 2014 Law is not valid under PASPA does not preclude the possibility that other options may pass muster. The issue of the extent to which a given repeal would constitute an authorization, in a vacuum, is not before us, as it was not specifically before us in Christie I. However, as
Appellants seize on the District Court's erroneous interpretation of Christie I's anti-commandeering analysis — namely, that PASPA presents states with a strict binary choice between total repeal and keeping a complete ban on their books — to once again urge that if PASPA commands such a choice, then it is comparable to the challenged law in New York. First, unlike the take-title provision included in the statute at issue in New York, PASPA's text does not present states with a coercive choice to adopt a federal program. To interpret PASPA to require such a coercive choice is to read something into the statute that simply is not there.
Second, PASPA is further distinguishable from the law at issue in New York because it does not require states to take any action. In New York, the Supreme Court held that a federal law that required states to enact a federal regulatory program or take title to radioactive waste at the behest of generators "crossed the line distinguishing encouragement from coercion." 505 U.S. at 175, 112 S.Ct. 2408. Unlike the law at issue in New York, PASPA includes no coercive direction by the federal government. As we previously concluded in Christie I, PASPA does not command states to take any affirmative steps:
730 F.3d at 231 (internal quotation marks and alterations omitted) (emphasis in original). Put simply, PASPA does not impose a coercive either-or requirement or affirmative command.
We will not allow Appellants to bootstrap already decided questions of PASPA's constitutionality onto our determination that the 2014 Law violates PASPA. We reject the notion that PASPA presents states with a coercive binary choice or affirmative command and conclude, as we did in Christie I, that it does not unconstitutionally commandeer the states.
The 2014 Law violates PASPA because it authorizes by law sports gambling. We continue to find PASPA constitutional. We will affirm.
FUENTES, joined by RESTREPO, Circuit Judges, dissenting:
In November 2011, the question of whether to allow sports betting in New Jersey went before the electorate. By a 2-1 margin, New Jersey voters passed a referendum to amend the New Jersey Constitution to allow the New Jersey Legislature
So New Jersey did just that. In 2014, the New Jersey Legislature repealed certain sports betting prohibitions at casinos and gambling houses in Atlantic City and at horse racetracks in the State ("2014 Repeal"). In addition to repealing the 2012 Law in full, the 2014 Repeal stripped New Jersey of any involvement in sports betting, regulatory or otherwise. In essence, the 2014 Repeal rendered previous prohibitions on sports betting non-existent.
But the majority today concludes that the New Jersey Legislature's efforts to satisfy its constituents while adhering to our decision in Christie I are still in violation of PASPA. According to the majority, the "selective" nature of the 2014 Repeal amounts to "authorizing by law" a sports wagering scheme. That is, because the State retained certain restrictions on sports betting, the majority infers the authorization by law. I cannot agree with this interpretation of PASPA.
PASPA restricts the states in six ways — a state cannot "sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting.
Indeed, we stated exactly this in Christie I — that all PASPA prohibits is "the affirmative `authoriz[ation] by law' of gambling schemes."
With the 2014 Repeal, the New Jersey Legislature did what it thought it was permitted to do under our reading of PASPA in Christie I. The majority, however, maintains that the 2014 Repeal "authorizes" sports wagering at casinos, gambling houses, and horse racetracks simply because other sports betting prohibitions remain in place.
A repeal is defined as an "abrogation of an existing law by legislative act."
To bolster its position, the majority rejects our reasoning in Christie I, stating that "[t]o the extent that in Christie I we took the position that a repeal cannot constitute an authorization, we now reject that reasoning."
Suppose the State did exactly what the majority suggests it could have done: repeal completely its sports betting prohibitions. In that circumstance, sports betting could occur anywhere in the State and there would be no restrictions as to age, location, or whether a bettor could wager on games involving local teams. Would the State violate PASPA if it later enacted limited restrictions regarding age requirements and places where wagering could occur? Surely no conceivable reading of PASPA would preclude a state from restricting sports wagering in this scenario. Yet the 2014 Repeal comes to the same result.
The majority also fails to illustrate how the 2014 Repeal results in sports wagering pursuant to state law when there is effectively no law in place as to several locations, no scheme created, and no state involvement. A careful comparison with the 2012 Law is instructive. The 2012 Law lifted New Jersey's ban on sports wagering and created a licensing scheme for sports wagering pools at casinos and racetracks in the State. This comprehensive regime required close State supervision and regulation of those sports wagering pools. For instance, the 2012 Law required any entity that wished to operate a "sports pool lounge" to acquire a "sports pool license." To do so, a prospective operator was required to pay a $50,000 application fee, secure Division of Gaming Enforcement ("DGE") approval of all internal controls, and ensure that any of its employees who were to be directly involved in sports wagering obtained individual licenses from the DGE and the Casino Control Commission ("CCC"). In addition, the betting regime required entities to, among other things, submit extensive documentation to the DGE, adopt new "house" rules subject to DGE approval, and conform to DGE standards. This, of course, violated PASPA in the most basic way: New Jersey developed an intricate scheme that both "authorize[d] by law" and "license[d]" sports gambling. The 2014 Repeal eliminated this entire scheme. Moreover, all state agencies with jurisdiction over state casinos and racetracks, such as the DGE and the CCC, were stripped of any sports betting oversight.
The majority likewise falters when it analogizes the 2014 Repeal to the exception Congress originally offered to New Jersey in 1992. The exception stated that PASPA did not apply to "a betting, gambling, or wagering scheme ... conducted exclusively in casinos[,] ... but only to the extent that ... any commercial casino gaming scheme was in operation ... throughout the 10-year period" before PASPA was enacted.
Because I do not see how a partial repeal of prohibitions is tantamount to authorizing by law a sports wagering scheme in violation of PASPA, I respectfully dissent.
VANASKIE, Circuit Judge, dissenting.
While Congress "has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts." New York v. United States, 505 U.S. 144, 166, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (emphasis added). Concluding that the Professional and Amateur Sports Protection Act ("PASPA"), 28 U.S.C. § 3701 et seq., was a congressional command that States must prohibit wagering on sporting events because it forbids the States from "authoriz[ing] by law" such activity, I dissented from the holding in Christie I that PASPA was a valid exercise of congressional authority. National Collegiate Athletic Ass'n v. Governor of New Jersey (Christie I), 730 F.3d 208, 241-51 (3d Cir. 2013) (Vanaskie, J., dissenting). My colleagues in the majority in Christie I disagreed with my conclusion because they believed that States had the option of repealing existing bans on sports betting. Id. at 232. In upholding PASPA, Christie I rejected New Jersey's argument that a repeal of its ban on sports betting would be viewed as effectively "authoriz[ing] by law" this activity. Christie I declared that New Jersey's "attempt to read into PASPA a requirement that the states must affirmatively keep a ban on sports gambling in their books rests on a false equivalence between repeal and authorization." Id. at 233. I viewed that "false equivalence" assertion with considerable skepticism. Id. at 247 n. 5 ("[I]t certainly is open to debate whether a state's repeal of a ban on sports gambling would be akin to that state's `authorizing' gambling on sporting events...."). My skepticism is validated by today's majority opinion. The majority dodges the inevitable conclusion that PASPA conscripts the States to prohibit wagering on sports by suggesting that some partial repeal of the ban on sports gambling would not be tantamount to authorization of gambling.
Implicit in today's majority opinion and Christie I is the premise that Congress lacks the authority to decree that States must prohibit sports wagering, and so both majorities find some undefined room for States to enact partial repeals of existing bans on sports gambling. While the author
According to the majority, "a state's decision to selectively remove a prohibition on sports wagering in a manner that permissively channels wagering activity to particular locations or operators is, in essence, `authorization' under PASPA." Maj. Op., at 401. The majority also claims "a state's partial repeal of a sports wagering ban to allow de minimis wagers between friends and family would not have nearly the type of authorizing effect that we find in the 2014 Law." Id. at 402. Thus, according to the majority, the 2014 Law is a partial repeal that is foreclosed by PASPA, but "other options may pass muster" because "not all partial repeals are created equal." Id.
Noticeably, the majority does not explain why all partial repeals are not created equal or explain what distinguishes the 2014 Law from those partial repeals that pass muster. To further complicate matters, the majority continues to rely on Christie I, which did "not read PASPA to prohibit New Jersey from repealing its ban on sports wagering" and informed New Jersey that "[n]othing in [PASPA's] words requires that the states keep any law in place." 730 F.3d at 232.
Christie I "[r]ecogniz[ed] the importance of the affirmative/negative command distinction," and "agree[d] with [New Jersey] that the affirmative act requirement, if not properly applied, may permit Congress to `accomplish exactly what the commandeering doctrine prohibits' by stopping the states from `repealing an existing law.'" 730 F.3d at 232 (quoting Conant v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring)). Christie I, however, discounted concerns regarding PASPA's affirmative act requirement because Christie I "d[id] not read PASPA to prohibit New Jersey from repealing its ban on sports wagering." Id. According to Christie I, PASPA is constitutional because "[n]othing in [PASPA's] words requires that the states keep any law in place." Id. This conclusion formed the premise for the conclusion in Christie I that PASPA passed constitutional muster.
Remarkably, the majority chooses to "excise that discussion from our prior opinion as unnecessary dicta." Maj. Op., at 401. This cannot be the case, however, because that discussion was the cornerstone of the holding in Christie I. See In re McDonald, 205 F.3d 606, 612 (3d Cir. 2000) ("Chief Judge Posner has aptly defined dictum as `a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding — that, being peripheral, may not have received the full and careful consideration of the court that uttered it.'" (quoting Sarnoff v. Am. Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986))).
Indeed, to rationalize its conclusion in Christie I, the Christie I majority had to expressly reject the notion that when a
In giving the issue its full and careful consideration, Christie I explained that the notion that a "repeal" could be the same as an "authorization" was "problematic in numerous respects." 730 F.3d at 232; see also id. ("Most basically, it ignores that PASPA speaks only of `authorizing by law' a sports gambling scheme."). Christie I did "not see how having no law in place governing sports wagering is the same as authorizing it by law." Id. Christie I recognized a distinction between affirmative commands for actions and prohibitions, and explained that there was "a false equivalence between repeal and authorization." Id. at 233. Thus, as a matter of statutory construction, and to avoid "a series of constitutional problems," Christie I specifically held that if the Court did not distinguish between "repeals" (affirmative commands) and "authorizations" (affirmative prohibitions), the Court would "read the term `by law' out of [PASPA]." Id. at 233.
I dissented from that opinion because "any distinction between a federal directive that commands states to take affirmative action and one that prohibits states from exercising their sovereignty is illusory." 730 F.3d at 245 (Vanaskie, J., concurring in part and dissenting in part). The decision to base Christie I on a distinction between affirmative commands for action and affirmative prohibitions was "untenable," because "affirmative commands to engage in certain conduct can be rephrased as a prohibition against not engaging in that conduct." Id. As I explained, basing Christie I on such an illusory distinction raises constitutional concerns because "[a]n interpretation of federalism principles that permits congressional negative commands to state governments will eviscerate the constitutional lines drawn" by the Supreme Court. Id.
After Christie I, a state like New Jersey at least had the choice to either "repeal its sports wagering ban," or, "[o]n the other hand ... keep a complete ban on sports gambling." Id. at 233 (majority opinion). The Christie I majority found that this choice was not too coercive because it left "much room for the states to make their own policy" and left it to a State "to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be." Id.
Today's majority makes it clear that PASPA does not leave a State "much room" at all. Indeed, it is evident that States must leave gambling prohibitions on the books to regulate their citizens. A review of the four Supreme Court anti-commandeering cases referenced by the majority is illuminating.
The first two anti-commandeering cases that the majority reviews are Hodel v.
This rule was announced in Hodel, where the Supreme Court explained that "[i]f a State does not wish to ... compl[y] with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government." 452 U.S. at 288, 101 S.Ct. 2352 (emphasis added). The same theme repeated itself in F.E.R.C., as the Supreme Court focused on "the choice put to the States — that of either abandoning regulation of the field altogether or considering the federal standards." 456 U.S. at 766, 102 S.Ct. 2126 (emphasis added). In both cases, the Supreme Court was clear that there must be some choice for the states to make because without it "the accountability of both state and federal officials is diminished." New York v. United States, 505 U.S. 144, 168, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).
Indeed, in New York v. United States, the Court explained that a State's view on legislation "can always be pre-empted under the Supremacy Clause if it is contrary to the national view, but in such a case ... it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular." Id. at 168, 112 SSA. 2408. The Supreme Court reiterated this point Printz v. United States, explaining that, "[b]y forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for `solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes." 521 U.S. 898, 930, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Thus, States must be given a choice because the Supreme Court is concerned that "it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision." New York, 505 U.S. at 169, 112 S.Ct. 2408.
As the majority explains, while "PASPA's provisions and its reach are controversial (and, some might say, unwise).... we are duty-bound to interpret the text of the law as Congress wrote it." Maj. Op., at 396. Because the majority has excised the distinction between a repeal and an authorization, the majority makes it clear that under PASPA as written, no repeal of any kind will evade the command that no State "shall ... authorize by law" sports gambling. 28 U.S.C. § 3702. In the face of such a congressional directive, "no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty." Printz, 521 U.S. at 935, 117 S.Ct. 2365.
This leads to the other two anti-commandeering cases reviewed by the majority: South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988), and Reno v. Condon, 528 U.S. 141, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The majority explains that these cases address permissible
For example, in Baker, the Supreme Court reviewed a challenge to the Internal Revenue Code's enactment of § 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, which prohibited States from issuing unregistered bearer bonds. Notably, when reviewing the case, the Court specifically found that it did not need to address "the possibility that the Tenth Amendment might set some limits on Congress' power to compel States to regulate on behalf of federal interests" because the Court found that the commandeering concerns "in FERC [were] inapplicable to § 310." Baker, 485 U.S. at 513, 108 S.Ct. 1355. Importantly, the Court distinguished § 310 from the statute in F.E.R.C. because the Court found that "Section 310 regulates state activities; it does not, as did the statute in FERC, seek to control or influence the manner in which States regulate private parties." Id. at 514, 108 S.Ct. 1355. Similarly, in Reno, the Court addressed a statute that did not require (1) "the States in their sovereign capacity to regulate their own citizens," (2) "the ... Legislature to enact any laws or regulations," or (3) "state officials to assist in the enforcement of federal statutes regulating private individuals." 528 U.S. at 151, 120 S.Ct. 666. It was only on these bases that the Supreme Court found the statute at issue in Reno was "consistent with the constitutional principles enunciated in New York and Printz." Id.
Unlike the statutes at issue in Baker and Reno, however, PASPA seeks to control and influence the manner in which States regulate private parties. Through PASPA, Congress unambiguously commands that "[i]t shall be unlawful for ... a governmental entity to ... authorize by law" sports gambling. 28 U.S.C. § 3702. By issuing this command, Congress has set an impermissible "mandatory agenda to be considered in all events by state legislative or administrative decisionmakers." F.E.R.C., 456 U.S. at 769, 102 S.Ct. 2126.
The logical extension of the majority is that PASPA prevents States from passing any laws to repeal existing gambling laws. As the majority correctly notes, "[t]he word `authorize' means, inter alia, `[t]o empower; to give a right or authority to act,' or `[t]o permit a thing to be done in the future.'" Maj. Op., at 396 (quoting Black's Law Dictionary 133 (6th Ed. 1990)) (footnote omitted). Because authorization includes permitting a thing to be done, it follows that PASPA also prevents state officials from stopping enforcement of existing gambling laws. States must regulate conduct prioritized by Congress. Cf. Conant, 309 F.3d at 646 (Kozinski, J., concurring) ("[P]reventing the state from repealing an existing law is no different from forcing it to pass a new one; in either case, the state is being forced to regulate conduct that it prefers to leave unregulated.").
It is true that civil actions to enjoin a violation of PASPA "may be commenced in an appropriate district court of the United States by the Attorney General of the United States." 28 U.S.C. § 3703. But it can hardly be said that the United States Attorney General bears the full regulatory burden because, through PASPA, Congress effectively commands the States to
PASPA is a statute that directs States to maintain gambling laws by dictating the manner in which States must enforce a federal law. The Supreme Court has never considered Congress' legislative power to be so expansive. See Prigg v. Com. of Pennsylvania, 41 U.S. 16 Pet. 539, 541, 10 L.Ed. 1060 (1842) ("It might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the constitution"); F.E.R.C., 456 U.S. at 761-62, 102 S.Ct. 2126 ("[T]his Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations") (citing E.P.A. v. Brown, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977)); New York, 505 U.S. at 178, 112 S.Ct. 2408 ("Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents."); Nat'l Fed'n of Indep. Bus. v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 2602, 183 L.Ed.2d 450 (2012) (plurality opinion) ("[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions." (quoting New York, 505 U.S. at 162, 112 S.Ct. 2408)).
It is now apparent that Christie I was incorrect in finding that "nothing in [PASPA's] words requires that the states keep any law in place." 730 F.3d at 232 (first and third emphasis added). With respect to the doctrinal anchors of Christie I, the cornerstone of its holding has been eroded by the majority, which has excised Christie I's discussion regarding "a false equivalence between repeal and an authorization." Id. at 233. Notably, that discussion was included in Christie I to avoid "a series of constitutional problems." Id. Today's majority makes it clear that passing a law so that there is no law in place governing sports wagering is the same as authorizing it by law. See Maj. Op., at 396 ("The word `authorize' means, inter alia, `[t]o empower; to give a right or authority to act,' or `[t]o permit a thing to be done in the future.'") (citation and footnote omitted).
I dissented in Christie I because the distinction between repeal and authorization is unworkable. Today's majority opinion validates my position: PASPA leaves the States with no choice. While Christie I at least gave the States the option of repealing, in whole or in part, existing bans on gambling on sporting events, today's decision tells the States that they must maintain an anti-sports wagering scheme. The anti-commandeering doctrine, essential to protect State sovereignty, prohibits Congress from compelling States to prohibit such private activity. Accordingly, I dissent.