What the Supreme Court giveth, could Congress conceivably taketh away?
It’s one of multiple questions cropping up with respect to the federal legislative branch’s potential role in sports betting regulation following New Jersey’s victory in Murphy vs. NCAA.
Chatter regarding future federal regulatory legislation already surfacing
The post-decision euphoria of Monday’s landmark Supreme Court decision has naturally included endless speculation of how expansive an industry legalized sports betting might become. There’s been no shortage of laudatory comments regarding the verdict from lawmakers and stakeholders across the country, as well.
Granted, there’s been a couple of sticks in the mud.
- One is predictably the NFL, which put out a statement that among other things, made a fairly emphatic call for some sort of overarching Congressional regulation of the now-legalized sports betting industry.
- Then Sen. Orrin Hatch (R-Utah) accordingly chimed in just a few short hours later, declaring that he intends to introduce legislation in the near future to “help protect honesty and principle in the athletic arena” in the wake of PASPA’s eradication.
Incidentally, Hatch’s involvement as the presumed sponsor of such legislation isn’t mere coincidence — he was one of the four authors of PASPA back in 1992.
Could Congress rain on sports betting’s parade?
Taking the wording of Hatch’s statement at face value, it appears he’s operating under the assumption that legalized sports betting is the new reality, and that he and fellow Congressional legislators will simply ensure it’s regulated appropriately.
However, a comment from Fox Business Senior Judicial Analyst Judge Andrew Napolitano on Monday alluded to the possibility of what might be highly improbable, but technically still a possibility – Congress opting to federally criminalize sports betting, as opposed to regulating it.
Admittedly, in the next breath, Napolitano added that he felt there “wasn’t a will” in Congress to take such a drastic step.
Judging by the fact that Monday’s decision was hailed by more than a few Republicans – currently the majority party in both chambers – and the forceful enforcement of states’ rights expressed in the Supreme Court’s opinion, that’s likely a prescient assessment.
Notably, the Congress of approximately 26 years ago didn’t go that route either, which is an overriding reason the sports leagues were handed a defeat in Murphy vs. NCAA. The absence of a federal ban on sports betting is partly what made PASPA unconstitutional, as it triggered a violation of the anti-commandeering principle (the federal government dictating policy to state legislatures).
Previously introduced GAME Act could spring to relevance
In fact, there’s even skepticism about Hatch being able to get any legislation passed. That’s due both to the aforementioned federalist contingent in Congress that typically champions states’ rights, as well as the fact the legislative calendar tends to slow down considerably in mid-term election years such as 2018.
That doesn’t mean there won’t be efforts in that regard, however. Not only might Hatch’s still-to-be-revealed bill get some mileage, but another originating from New Jersey itself could also get some consideration.
The Garden State’s own Representative Frank Pallone’s GAME Gaming Accountability and Modernization Enhancement (GAME) Act – which was reintroduced in December 2017 – provides regulatory measures for underage gambling and gambling addiction. It also establishes the Federal Trade Commission as the clearinghouse for gaming entities to submit their consumer protections under the gaming laws of their respective states.
Given that the GAME Act already has some tenure, it may ultimately have the best opportunity of being enacted in the short term.
If it does, there’d be some measure of irony. After all, federalist-leaning Republicans in Congress might be much more inclined to go along with the Democrat-sponsored bill, given that, as presently written, it seems to deftly walk the fine line between federal oversight and state-level autonomy.