MEMORANDUM IN SUPPORT OF THE CONSTITUTIONALITY OF THE PROFESSIONAL AND AMATEUR SPORTS PROTECTION ACT [U.S. Department of Justice, Civil Division]
[USDOJ Memo of Points & Authorities argues that PASPA is Constitutional]
This case involves a direct conflict between the State of New Jersey’s efforts to legalize sports gambling and a federal statute, the Professional and Amateur Sports Protection Act of 1992 (“PASPA”), which prevents the expansion of states ponsored sports wagering. To avoid PASPA’s restrictions, the New Jersey defendants (the Governor, the Director of the Division of Gaming and Enforcement, and the Executive Director of the Racing Commission) and a defendant-intervenor, the New Jersey Thoroughbred Horsemen’s Association, have challenged PASPA on multiple constitutional grounds. Those parties, which favor the legalization of sports gambling in New Jersey, claim that PASPA violates commandeering principles of the Tenth Amendment; exceeds the scope of the Commerce Clause power; contravenes state sovereignty principles and the equal footing doctrine; and offends due process and equal protection principles. Each of those challenges fails: PASPA is a constitutional exercise of congressional authority, and it should be upheld.
First, PASPA does not violate anti-commandeering principles of the Tenth Amendment. Under that doctrine, Congress cannot require States to take affirmative actions to implement a federal regulatory program. But PASPA does not require New Jersey to take any affirmative action; rather, it merely prohibits New Jersey from sponsoring, operating, advertising, promoting, licensing, or authorizing sports gambling.
PASPA is also a valid exercise of Congress’ Commerce Clause authority because it is reasonable to believe that sports gambling has a substantial effect on interstate commerce. Moreover, PASPA’s provisions, which prevent the expansion of state-sponsored sports gambling, are rational methods of achieving Congress’ purposes of stopping the spread of sports wagering and of guarding the integrity of athletic competitions.
In addition, principles of equal sovereignty and the equal footing doctrine have no relevance here. Neither concept applies to congressional legislation under the Commerce Clause, such as PASPA. Furthermore, equal sovereignty principles and the equal footing doctrine ensure that new States are admitted to the Union on an equal footing with existing States. But PASPA was enacted in 1992, and its “grandfather” provisions extend back only as far as 1976, long after New Jersey (or any other State) was admitted to the Union.
The due process and equal protection challenges brought by the New Jersey defendants fail as well. The Fifth Amendment protects only “persons” and does not extend to States. Therefore, New Jersey does not have the ability to bring due process or equal protection challenges to PASPA’s constitutionality. Even so, under rational basis review, PASPA does not offend either of those constitutional principles. It is economic and social legislation that serves legitimate governmental purposes (stopping the spread of state-sponsored sports betting and promoting the integrity of athletic competitions) through rational means (preventing additional States from authorizing sports gambling).