Wednesday, May 16, 2018

The Political Stakes of Commandeering in Murphy v. NCAA

by Michael C. Dorf

Monday's SCOTUS decision in Murphy v. NCAA need not have any long-term practical consequences for the legality of sports gambling. The Court invalidated the Professional and Amateur Sports Protection Act (PASPA) on the ground that it "commandeered" state legislatures into passing or retaining laws forbidding sports betting, in violation of a principle established in 1992 in New York v. United States. New Jersey and other states can now legalize sports betting, but Congress could achieve everything it sought to accomplish through PASPA with a new law. The flaw in PASPA was that it told states to legislate, but Congress could legislate directly by banning sports betting, with or without exceptions as permitted by state law. Doing so this way--via "conditional pre-emption"--would be a straightforward exercise of the Commerce Clause power, as was expressly recognized as a permissible alternative to commandeering in New York.

Whether Congress actually will do that is unclear, but there is no reason to think that the forces that often produce gridlock in Congress will operate here. The politics of sports gambling, like the politics of casino gambling, have no clear left/right valence.

Republican mega-donor Sheldon Adelson is a casino magnate, and Donald Trump was an unsuccessful casino owner, but prominent Democrats, such as Nevada's Harry Reid and many New Jersey politicians, have also favored gambling interests. Moreover, the economic interests are often complex. An Indian tribe may oppose expanded legal gambling for fear of competition with a casino it owns and operates. Opposition to gambling may come from people on the religious right concerned about the souls of the gamblers or from people on the secular left who regard tax revenue from gambling as regressive taxation. And the NCAA and the professional sports leagues oppose sports gambling for fear that it will corrupt the integrity of the games. The coalition that favors legal sports gambling is likewise diverse, including economic libertarians and progressives who see the revenue it produces as a necessary evil in an era of otherwise politically constrained taxes.

So much for the politics of sports betting. What about commandeering itself? New York v. United States and Printz v. United States--which extended the anti-commandeering rule to congressional directives aimed at state and local executive officials--were both the product of an ideologically divided Court. Printz was 5-4. Yet in Murphy, no justice argues for reconsideration of the anti-commandeering rule itself. To be sure, Justice Ginsburg, joined by Justice Sotomayor in this portion of her separate opinion, puts "commandeering" in quotation marks, but it is not clear whether she does so to signal disagreement with the underlying doctrine. If so, the signal is extremely subtle. Meanwhile, Justices Breyer and Kagan join the anti-commandeering portion of Justice Alito's majority opinion in its entirety.

What explains the liberal wing of the Court's acceptance of the anti-commandeering doctrine?

As a first cut, we can note that none of the justices who dissented in New York remain on the Court. But that doesn't get us very far, because Justices Ginsburg and Breyer were on the Court and both dissented in Printz. Even if we count Justice Ginsburg's cryptic quotation marks as standing by her opposition to the anti-commandeering doctrine, what do we make of Breyer's shift?

It's possible that there has been no shift. That is, Breyer might accept New York -- the precedent that was applied in Murphy -- but reject Printz. That would be a sensible juxtaposition.

Breyer's dissent in Printz compared the Court's anti-commandeering doctrine with the European doctrine of subsidiarity. Under the latter, the larger unit (e.g., the EU relative to member states or the German national government relative to the laender) legislates but the relatively local unit enforces the legislation. This principle of relatively local enforcement or subsidiarity, Breyer noted in his Printz dissent, is seen in Europe as a protection for the relatively local government, because it gives that government some voice in enforcement. Thus, he said, it is odd for the SCOTUS to treat an approach that protects states and localities as though it infringes their sovereignty.

Justice Breyer could well still believe that the doctrine forbidding commandeering of executive officials is misguided but think that the doctrine forbidding commandeering of state legislatures is sensible--or at least harmless. Congress will often have good reasons for wanting to leave enforcement of some federal law to state and local officials, and some of those reasons, as Breyer says in his Printz dissent, promote rather than undermine state sovereignty. But Congress will almost never have good reason to command a state to pass a law rather than just pass the law itself. Given the possibility of acting directly, PASPA was a gratuitous infringement on state legislative autonomy in this view.

Here's another way of thinking about the distinction between New York and Printz. The basic objection to any anti-commandeering rule is that it's made up. Justice Scalia admitted as much in his Printz majority. He said that "there is no constitutional text speaking to th[e] question" whether Congress may commandeer state and local executive officials. The dissenters thus accused the majority of hypocrisy for finding an anti-commandeering rule in the structure and history (but not the text) of the Constitution, when those same majority justices rail against such moves in cases involving various individual rights. But Justice Breyer may believe that the made-up-ness of the New York rule isn't enough to seek its elimination, because it's essentially harmless; by contrast, he may still think that the Printz rule is both made up AND harmful.

There's yet another factor that may be in play. The anti-commandeering rule--including the Printz version that applies to state and local executive officials--has lately been useful to sanctuary cities in resisting efforts by the Trump administration to compel their officers to provide assistance to federal immigration officials, i.e., to commandeer the local officers. It is hardly surprising that when some states and cities are the sites of liberal resistance to a reactionary administration in Washington, liberals would discover the virtues of federalism. The apparent acceptance of the anti-commandeering rule by the Court's liberal wing may reflect that discovery.

I hasten to add that I agree with Professor Daniel Hemel's observation that Murphy does not just apply the anti-commandeering doctrine; it appears to greatly expand the doctrine to cover not only congressional commands to state legislatures to legislate but also congressional prohibitions against state legislation. If the Court is serious about that, then as Prof. Hemel explains, the ruling could have far-reaching consequences. Because I think those consequences are largely unintended, I also agree with Professor Brian Galle that in future cases the Court will likely cut back on the farthest-reaching language in Murphy.

Finally, it is worth noting that while there was virtually no disagreement among the justices about the vitality of the anti-commandeering doctrine in Murphy, the Court split into three camps regarding severability. I shall have something to say about that issue on Friday.