Nullification: It’s a Jersey Thing

August 12th, 2012

The federal Professional and Amateur Sports Protection Act of 1992 allows certain places (Nevada, Montana, Delaware, and Oregon) to operate sports-betting. New Jersey is not on that list. But that won’t stop New Jersey from trying to open a sports-betting program in Atlantic City (which, in case you didn’t know, was on the Jersey Shore).

Under pressure to revive Atlantic City and boost state revenue, New Jersey officials appear to be basing the launching of a planned sports-betting program on a speculative legal theory that has never been tested by the courts, legal experts say.

The state has not officially unveiled its legal strategy, but in a news conference last week, Gov. Christie suggested that the federal government had no basis under the U.S. Constitution for banning betting on major professional and collegiate sports in New Jersey while permitting a handful of other states to have it.

The model for the state’s legal initiative appears to be a 2009 federal lawsuit filed by State Sen. Raymond Lesniak (D., Union) and various gambling interests against U.S. Attorney General Eric Holder, citing constitutional arguments for overturning the federal ban on sports betting in New Jersey and most other states. The lawsuit was dismissed a short time later on procedural grounds.

And what exactly is the basis of such a suit?

Sen. Raymond Lesniak, the Democratic lawmaker who tried to sue to overturn the federal ban, predicted the law would be overturned.

“To those with a vested interest in the status quo — the professional sports organizations who take a hypocritical stance that wagering will ‘ruin the purity of the game,’ and the Nevada-based gaming conglomerates that have enjoyed that state’s stranglehold on sports wagering for the last 20 years — I respectfully say, ‘Bring it on,’ ” he said in a statement. “The sooner you make an issue of New Jersey’s noncompliance with anunconstitutional federal ban, the sooner we can defeat that ban in the courts, and put New Jersey on the same competitive footing as the rest of the nation when it comes to sports wagering.”

Dormant commerce clause? Federalism? I mean, I don’t even know what the argument would be? Is there some kind of commerce-clause-black-hole in Seaside where federal laws go to die (and tan)?

“I think we are going to win,” he said, “because I don’t believe the federal government has the right to decide that only certain states can have sports gambling.”

Jacoby said he believes the governor’s remarks signaled that the state would seek to defend the plan under the 14th Amendment, affording citizens equal protection under laws.

He said he also anticipated a federalism argument contending that the federal government did not have the authority to regulate gambling under the enumerated powers granted it by the Constitution and that such powers belong to the states.

“The way these things are done,” Jacoby said, “you tend to throw the kitchen sink.”

Kitchen Sink? 14th Amendment equal protection clause as applied to the states (is that even a thing?)?  The 14th Amendment uses the word “person.” Though I suppose if a corporation is a person, why not a state?

But will it work? I can’t imagine any court buying it.

I. Nelson Rose, a professor at Whittier Law School in Southern California and a recognized authority on gambling law in the United States and abroad, expressed astonishment that Christie set the plan in motion before seeking a declaratory judgment by the federal courts that it was legal to do so.

“I thought it was bizarre, really, for Chris Christie to say, ‘OK, come and get me, coppers,’ to violate a major federal antigambling statute,” Rose said. “It certainly is bad lawyering.”

Very, very bizarre strategy on the part of the Governor.

The same day the leagues filed suit, Christie held a news conference in which he seemed to flag the state’s legal theory for defending against legal challenges, arguing that the federal government didn’t have the right to stop New Jersey if it permitted sports betting in other states.

“I think we are going to win,” he said, “because I don’t believe the federal government has the right to decide that only certain states can have sports gambling.”

Though this isn’t the first time Governor Christie was willing to stand up to other branches of government.