Nullification: It’s Still A Jersey Thing

October 16th, 2012

I have blogged about New Jersey’s efforts to offer sports wagering, even though that is clearly in violation of federal law. And much like The Situation’s downward spiral, the Garden State will keep pumping down the path of unconstitutionality.

The state Division of Gaming Enforcement published regulations for sports betting on Monday in the New Jersey Register. That clears the way for casinos, horse-racing tracks or joint ventures involving both to apply for $50,000 sports pool licenses.

“With the publication of these regulations, New Jersey ensures effective regulation and oversight of sports wagering, consistent with its longstanding nationwide reputation for maintaining integrity and instilling public confidence in gaming operations,” said David Rebuck, the division’s director.

But state officials made no mention of the biggest obstacles to their plans to offer legalized sports betting: a federal law banning it in all but four states and a lawsuit in the federal courts between the state and the major professional sports leagues.

The NCAA, Major League Baseball, the National Football League, National Basketball Association and National Hockey League have collectively sued to block New Jersey’s sports betting law from taking effect.

In response to a question from The Associated Press, Rebuck said the state is proceeding with its plans.

“The Division of Gaming Enforcement will begin processing applications submitted by any interested party seeking licensure,” he said. “We are confident that there will be no legal impediments; if the court finds differently, we will consider all of the options before us.”

This isn’t even a close call. Is the federal law somehow unconstitutional? A violation of the 10th Amendment? In excess of Congress’s powers to regulate interstate commerce?

In May, Gov. Chris Christie said New Jersey would forge ahead with its sports betting law despite the federal ban on it here. The governor said he expected to be sued over the plan, and proponents of the state’s plan to offer sports betting say a court battle could offer a shortcut to legalizing such bets in New Jersey rather than relying on a polarized Congress to repeal the federal ban.

Is this for real? A state is flagrantly violating a federal law, and wants to be sued to obtain a favorable court ruling, rather than seeking to change the law through the legislature. This is not some act of civil disobedience. This is nullification.

Only in the Garden State.

Update: A few additional thoughts.

If New Jersey was under the impression that the statute should not be applied to them, they should seek a temporary injunction barring its enforcement, and a declaratory judgment that the statute is unconstitutional or invalid, at least as applied to them. They aren’t doing this. They are inviting the DOJ to bring suit against them. I would expect more from a state with a former U.S. Attorney as Governor (well not really).

And what would the suit even be? The AG sues the director of the gaming commission to enjoining his implementation of the program?

Corey raised a good point about whether it is constitutional for a federal statute to single out some states for special treatment. As I understand the relevant provision, in the early 1990s states were allowed to opt into permitting sports wagering. Three such states did so. New Jersey did not. I suppose there would be a waiver argument here.

Though, the broader question about whether a federal statute can permit certain conduct in some states and not others is interesting. This would not be a spending power issue, where the federal government spends different amounts in different states. There is no spending-coercion here under the rubric of NFIB v. Sebelius.

Perhaps the states, as sovereigns could argue that it violates some principles of federalism for the feds to focus on some states for the brunt of federal criminal laws. Some kind of equal-protection argument?

Maybe the private companies opening up waging parlors would have standing to sue under some equal protection argument?

I’m not really sure. But, in any event, New Jersey is not doing this right.