tv Supreme Court Case Christie v. NCAA CSPAN December 11, 2017 9:55pm-11:01pm EST
betting violates the constitution, specifically the 10th amendment which prohibits the government from commandeering states into federal law. outgoingis with governor chris christie who wants to bring legalized betting to his state. joining the ncaa as respondents to prohibit the -- uphold the federal law prohibiting gambling. >> we will hear arguments first this morning christie versus ,caa in the consolidated case the new jersey thoroughbred horsemen's association versus ncaa. mr. olson. mr. olson: thank you chief theice and may it please court. one of the most important decisions made at the constitutional convention from
1787 was replacing the failed confederacy which governs states with the national government that could regulate individuals but not states. in the words of this court in the new york case, congress may regulate interstate commerce directly, but it may not regulate states regulation of interstate commerce. >> mr. olson, isn't that what the government does whenever it preempts state laws? it regulates. olson: when the government regulate state laws, the federal government has initially taken that position or action to regulate interstate commerce in some respect and when it does that, this court has repeatedly held it may preempt contradictory or inconsistent state laws. ferc, the you make of government gave the state a choice.
regulate or don't regulate at all. and -- >> it gave the states a choice in conjunction with the regulation of the area -- >> no. there were federal standards, the states were told except the more do not if you do not -- accept them or do not but if you do not you will not regulate in neither will we. so -- >> the consequence of that is that the states could regulate according to the standards established by the federal government with respect to the regulation of interstate commerce and if the states chose not to do that, the field was left to the federal government. asked by a is a direct command to the states without any sports to erect regulation. >> the airline deregulation is the obvious. >> that is a good example because in that case, the congress of the united states
witha wide responsibility respect to airline deregulation. airline regulation, as a matter fact that statute has a panoply of provisions regulating airlines in various different respect including -- >> yes, but we don't want the price and roots of airlines deregulated. that is the federal statute. the states can't regulate, we don't regulate their prices. the free market does. ok? here we say, we are not going to -- here they say, we are not going to regulate sports gambling at all. know,'t want -- and you we want you to forbid it. you see the analogy. see the analogy. you are discussing a case which discusses in great detail the federal regulatory scheme which included as a portion of the federal regulatory scheme a preemption of the states from conditions ofes,
service, that sort of thing. justice breyer, that is an area that is an essential example of the federal government taking responsibility for how airplanes flew in this country and deciding in certain areas, yes it could be preempted. completelye is different. >> what would you be looking for? what does that mean when you say the federal government still responsibility? suppose the federal government had just said, we don't want states to regulate. we don't want to regulate ourselves. we just want to -- i think this is what justice breyer's question was -- a free market. so, is that enough responsibility the federal government has taken? mr. olson: i believe it is not because i does the situation where the congress would be saying, we are choosing to regulate states. we are telling states, you may not participate in regulating commerce taking place in your state. we don't want to take any responsibility. andant to put the burden
expense and accountability all on the states to do so. this is quintessentially what >> i guess what i am asking is that you are suggesting that the federal government has to itself enact some kind of comprehensive regulatory scheme. the question is, what would we be looking for, if that were forecast? -- our test? when do we know they have -- in order to allow preemption of state rules? say inonly thing i would response as a predicate to answering your question is when you think sufficiently comprehensive, to the state that the federal government has taken responsibility to regulate in that field, what's it has done so, it can then preempt under the supremacy clause inconsistent or contradictory state laws.
the supremacy clause is where this preemption all comes from. that thees, it says constitution statutes or treaty shall be the supreme law of the demand. the court has construed that repeatedly -- >> it doesn't even have to be inconsistent if the federal government occupies the whole field. southern pacific versus arizona. a state cannot regulate the length of a freight train simply because this is reserved for the commerce. >> could you in this case, to avoid commandeering concerns, saying thathe law as if states to legislate, then they will be preempted? >> i think if i understand your question correctly justice kennedy, if justice had taken --
do do something about sports wagering by regulating it or taking responsibility in some respects, then it could say when a state is doing something that is inconsistent, then that can be preempted. but the title of this statute tos that this enacts prohibit sports gambling under state law. when congress passed the statute, it had a report from the congressional budget office that specifically said this will have no budgetary impact on the federal government. >> can we interpret that as saying if you do regulate, then it will be printed? >> it may be preempted. as you know, congress may adapt a statute that expressly preempts or in some cases impliedly preempts state laws in aare inconsistent or way that obstructs the accompaniment of the federal -- >> is this your argument?
don't just say yes. >> forget the airline act. it was a bad example. think about what you actually say is the federal government makes the determination of what interstate congress will be like in respect to this particular item. it can do that. -- ok, once it makes that determination, it can inconsistentlaws with that determination. that is called -- it cannot say that our determination is roughly that states can do it as they want but they cannot do it that way. for to do that is to tell the state has to legislate, in which case it is the state and not the person who becomes the subject of a federal law. >> i wish i had said that
myself, justice. [laughter] but you did say it. >> i am trying to get your argument. >> that is my argument. the court said it. statesk versus united congress could preempt state radioactive waste regulation. but it is limited in the weight it has chosen in that case instead of the regularly -- directly regulating -- that is new york versus the united states. appears inanguage earlier cases and goes back to 1911. is this aon, commercial activity by the state? this licensing casinos and horse racing, isn't it involved in a commercial activity? >> certainly it is a commercial individualsn state
are engaged in betting on sports. >> why isn't it when the state is licensing? it is making money from the licensing. >> it doesn't change the character of the underlying activity. the constitution ordains who may regulate that commercial activity, presuming it is interested commerce. >> i have never understood gambling not to be. you have to just watch the lines on the highways coming from all different directions going to gambling casinos. >> yes. >> if it is a commercial activity by the state, haven't we already said that the federal government can regulate that activity by the state? >> yes. >> so why is it that telling the state that it cannot license orticipate in, authorized, other eyes involve itself in gambling, a strict prohibition
of a commercial after. >> -- actor. >> yes, just as the language in the near case i just quoted, congress may regulate that field. if it does regulate that field -- which congress has not chosen to do in this case -- it can then preempt inconsistent state laws. 02 you have not challenged 37 subjection 2 have you? >> that is simply a counterparty subsection 1. >> but you did not challenge it. >> we challenge it look -- but for that.ued subsection two is another side of the same: because it says pursue under law. subsection will one we say is something that the states can do. if congress chose to prevent it would be unconstitutional.
by its terms subsection two operates on individuals and not the state. >> only if individuals operate pursuant to law, which means pursuant to the state law, which is referred to in subsection one. onehat part of subsection is not challenged? the ban on the seat itself operating gambling casinos. >> this would be something similar, justice ginsburg, to the reno versus condon case or
the south carolina versus baker case where the federal government chose to enact a law of general application that apply to private parties engaged in interstate commerce and applied the same law to the states in the states were engaged as a market participant to the same degree as interstate commerce. so to the extent that congress had initially decided to regulate this area and put itself into the field of regulating private persons engaged in activity, it could ton -- if a state chooses engage in the same activity. >> if you take the prohibition on private parties and have a comparable prohibition on the state, what do you accomplish by not being authorized by? if you have two parts that are
not constitutionally -- they achieve almost the same thing. >> it would because the two should only in firm because -- it would be constitutionally in firm. so, quite do obviously, it could then regulate the state is a market participant to the same degree it was regulating private citizens. >> it is pretty comprehensive. the comprehensive aspect is a total prohibition. >> yes. saying theyto be cannot regulate it if the regulation is going to be a total ban. that's very cover as if. -- very comprehensive. >> no. pasba said we prohibit gambling on sports, then it
could address the state as a participant in that same activity. it did not do so. this statute attempted to have the state -- that's why i quoted the name of the statute. it didn't stop there. it said sports gambling under state law. this is what you talked about in the new york case, new york versus united states. it put the expense, responsibility and burdens on the states and basically said, as the congressional budget office said, it will not have any effect on the federal budget because the federal government is doing nothing. the senate report said it will not have any regulatory impact. >> suppose i read these cases, that the federal government can constrict city officials for its own purposes. the federal government does whatever it wants consistent with the commerce clause. but it cannot conscript state
officials in order to help the federal government do it. if that's the way i see these cases, who is being conscripted in order to do what here? >> it is both conscription and commandeering indirect in the states. all those terms are applied in this. constricted here is the legislature of new jersey has been told it may not regulate an activity that is ifing place in new jersey there is a legal gambling going on. it cannot regulate that activity. >> the way you say that, the federal government is saying to the state that you cannot do something. that sounds to me the language of preemption. all the time the federal government takes some kinds of action, passes a law, then says to the state, we have got this, you cannot do anything. at thes so fundamental
constitutional convention discussed in so much detailed that the difference is in those circumstances where congress has taken the step of regulating commerce, it can preclude state efforts that interfere with that or conflict with that. but when it sets out at the first stage of her regulating the legislature -- here we have a situation where a kurt -- a , told newordered jersey you cannot a statute try to repeal. differenceee no between the federal government saying to estate you cannot take some preferred policy option that you would like to take, and on the other hand, the federal government staying -- saying to a state, you must help us do
something. because i thought our cases were all about the second thing. you must help us. you must be our little assistance -- assistants. i guess what i'm asking you for is, how is new jersey being put in that position with respect to the statute? in many ways new jersey is being told it may not regulate in the way it's legislature chooses to exercise its discretion with respect to an activity taking place in that space. it must enforce a law and keep it on the books that is attempting to repeal the executive branch and the legislative branch of the state of new jersey have been constricted -- must enforce. the third circuit the first time around said each state is free to decide how much of a law
enforcement priority it wants to make. so there's not going to be a federal prosecution if the state says we have other things to do that are more important than casino gambling or sports gambling. >> yes, justice ginsburg. the court said that. and the court said you may repeal any portion of your statutes. you may take any policy you want to take. the federal government said you may repeal all or any part of your sports betting prohibitions. that's exactly what new jersey did. but you can imagine justice ginsburg, having a law that the federal court has ordered new jersey to keep on the books, it prevents it from repealing that law, which means it is the same as requiring it to enact that law and maintain that line the books. then the officials in new
jersey, the governor of new jersey saying we are not going to enforce that law on the books after we took a note to uphold the laws of new jersey -- an oath to uphold the laws of new jersey. that is a strange construction of what the preemption clause and commandeering is all about. i'm sorry, does it tell the governor he has to enforce the law? >> no, it's is the repeal must be reversed. >> if the act is unconstitutional, those laws basically go by the wayside no matter what. but my question to you is, i read the injection, i don't see it anywhere to on the governor he has to enforce it. >> it doesn't. the governor's responsibility to enforce the law -- >> if every governor enforce every law in the book the state would be more than bankrupt. it would have no way of surviving. >> i understand that. >> there are countless laws and
even ones that are enforced that are not enforced totally. states make choices all the time. >> yes, and the states make those choices. >> there is nothing here telling the state has to enforce this law. >> it is an order from the federal court saying a legislature having repealed a statute must on repeal it -- unr epeal it, put it back on the books, and you are saying the governor doesn't have to enforce that law. it's a law on the books of new jersey. the governor and new jersey officials have taken an oath to uphold the laws of new jersey. here's a federal court that says we are going to order the statute to be back out of the books, but forget about it. this is a very strange -- >> >> what's the difference between that and this law is unconstitutional? this law is preempted, or just a simple ruling by the court --
this ruling is preempted? period. end of story. >> this was a repeal. said, thef, as i court had simply said this is preempted. inand what the "this" is your question is a repeal of a prohibition of sports betting, which means the repeal that the legislature carefully did in response to the third circuit's decision and the government and lee's both saying you can repeal any law you wish -- >> i have three ways of looking at this case. the first way is to say that this is the repeal, which is seems you are arguing. and you are saying to us, does or does not this statute permit a repeal? and if i say it permits repeals of all kinds, partial or not we avoid the
constitutional question, because then you could do whatever kind of repeal you want. the second way to look at this is that this statute does not prevent repeals at all, that is what you are arguing right now. that would make this statute unconstitutional. and the third approach is basically what the government is arguing here, which is it permits complete repeals, but not partial repeals, because partial repeals of the nature taken here are actually authorizations that are prohibited by the law. so those are the three approaches. in my missing something in what those approaches -- >> yes, because the effect of the statute is to prohibit new jersey -- the statute was intended to ban sports betting. >> that's the second -- or is this a fourth way? this is one way and i
submit the only way of looking at the statute. from its title to its legislative history to its exact language it was intended to prohibit sports betting under state law. >> that's my second -- >> is taking place under state law over the u.s. except for the nevada it ispt for illegal. what new jersey has decided not just that we want to repeal, because if you repeal -- >> you made the argument below there was no authorization because the statute did not regulate how sports betting would take place. you abandoned that argument. why? towe only were responding arguments by our opponents and the third circuit decision that says -- >> we normally interpret statutes in ways to avoid constitutional difficulties, not in ways to create. >> yes and the only way to avoid
it has been suggested here, is that there may be some appeals, and the third circuit use the language too much authorization, which is very much like a language in the prince case, too much policymaking. and in the case the court said that is not a line that is permissive with respect to regulating what the states are doing. what we are saying is to the extent our states -- >> you take a win on statutory grounds. >> yes book -- but consequence of that we would have a statute intending to prohibit the spread of sports betting. our opponents say in order to make that statute constitutional because they recognize the commandeering problem from the beginning -- in order to make that constitutional we are going to allow you to eliminate all prohibitions of sports betting's. as an effort to stop the spread of sports betting would lead to an interpretation or to hold the constitutional where all limits on sports betting are removed.
if the court permits i would like to reserve the remainder of my time. >> thank you, mr. olson. mr. clement. it doeshief justice, three basic things. it tells the states they may not themselves operate or advertise a sports gambling schemes such as a sports-based lottery or sports book. second, it tells private parties that they may not operate or advertise a sports gambling scheme pursuant to state law. thirdly, it tells states that they may not authorize or licensed third parties to conduct those stores -- sports gambling schemes that would violate federal law. >> it does so by this mechanism, it leaves in place a state law based date -- the state doesn't want so the people of new jersey are bound to the
law be state doesn't want but the federal government compels to say to have. that seems commandeering. >> we don't think it operates in that way. we think if new jersey wants to say we are going to lift all of our prohibitions, we think at least after that law, it would not be preempted as written. it's a separate question, especially in new jersey, where the private conduct that would take place pursuant to that repeal, especially casinos and racetracks, would be prohibited. >> the partial repeal is for been, correct? -- his is for been forbidden. >> what partial repeals are not forbidden? >> first of all i think it's important to recognize what past -- it regulates the operation of sports gambling schemes. it doesn't actually regulate sports gambling in the generic sense and it says nothing about individuals in gaming --
if new jersey wants to say all of our prohibitions on the demand -- >> can the federal government enact a law say no state shall pass an income tax greater than 6%? >> i think it might be able to do that. i don'tt it this way -- know why in principle that would be so different from the statute issued in baker which is no state shall issue a bearer bond. i think it's the same. ,o the extent it would be odd isn't it just a preemption provision. even he concedes if congress regulated the field they would be no problem with the preemption. >> it seems to me there is something a little more odd which it goes to the fundamentals and powers of the state to function their own
government to say you can go so far as to regulate what level of income tax they can charge. >> you are right mr. chief justice. maybe i should amend my remarks. i don't think there would be a commandeering problem with that statute. there might be some other federalism problem. if congress tells the state to move its state capital i am not sure it is a commandeering problem. not to use a word maybe i'm not supposed to a maybe it is a national league of cities problem. i don't think it's a commonly problem. >> the federal government wants to reduce expenditures on public employee pensions. so what does the states there's a state law that you cannot spend more than 20% of your budget on state employee pensions. they are commandeering the state to achieve that result. ? can they do that? ? >> again, i don't think that's a commandeering problem. i do think it is probably a national states legal cities problem.
if the court wants to say there are certain things that get too far into the state's kitchen, that's one thing. >> hypothetical indicates this blurs political accountability. this coming from the federal government, the state government? precisely what federalism was resigned to prevent. >> precisely in new york this court said there is not an accountability problem with preemptive distillation. -- legislation. i do think it is worth recognizing that you have three pieces, three legs of the stool if you will. one says states cannot do this. that the other side has no objection to. the other since private parties, you can't do this pursuant to state law. that's because it is regulation -- >> are there other statutes that rely on prohibition of state action without an accompanying federal policy? >> i don't know that there are. i think maybe there are.
it is just the federal policy they enforce is implicit. you cannot have discriminatory taxes against railroads. that is all the provision says. in interpreting that, congress is say they don't want to have that in-state commerce. here you don't have to look where the federal policy is. they say, we do not want sports gambling schemes. we don't want the states to do it. we don't want the private parties to do it. >> isn't it enough just to say it is illegal for entities, people or otherwise, to engaging gambling on sports events? that would be the federal government regulating this area. then it has the normal preemption clause where it's is not withstanding any state law to the contrary. >> at the end of the day i think that is what pafsta does. statuteset a federal you should look at are the
pre-existing provisions in title 18 that already told private parties that if they engaged in a sports gambling scheme or a gambling business, they are in violation of state law that was already a federal challenge. 18 as to lotteries. >> that is a very odd way -- this is subsection 2 -- that is a very odd way to phrase something. it is illegal if it is pursuant to state law. in other words if the state law says you can do it, that's the only situation in which it is illegal. if they don't say anything about it, then feel free to do it. >> the oddity goes away entirely if you understand before congress passed it, it was already unlawful as a matter of federal criminal law for a private party to operate a sports gambling scheme in violation of state law. >> in violation of state law. go back for a second. one of the purposes is not the one justice kagan mentioned, but
it is the best one as far as this case is concerned that i -- find, is the nation notion that federal statutes should address themselves to individuals and not the states. all right? now, that cannot be 100% true because we have all the reaction. -- all preemption. you can still get it is basically true with preemption being a commerce cause based exemption. then ask, what have we here? transportation safety act? osha? nothing like that. no federal act like that. is there a deregulation act which says if you do the federal policy there will be free enterprise affairs? no. because all the things you mentioned have the words of state law and it. -- in it. all we have here is a group of provisions, all of which are
addressing themselves to what kind of law a state may have without a clear federal policy that distinguishes between what they want states to do and what the federal government is doing. given those circumstances, it falls on the subject matter of this law is the state. that's what this is about, telling states what to do. and therefore, it falls within commandeering. a little long, but that's how i was reading. new york, it is not addressing itself to the states. it is long so you can answer the whole thing. >> i will try to enter the whole thing but i will start with the proposition that we know there is absolutely nothing wrong with congressional legislation that operates on states as market actors and that's what the first four prohibitions in it do. you cannothe states
operate, advertise, sponsor or promote sports gambling schemes. so that's ok. it also tells private parties you cannot do those four things pursuant to state law. those private parties cannot do it as a matter of federal law in violation of state law because it's a federal criminal prohibition. so all that leaves is the licenses to authorize. all those are our an express preemption preemptive. i think it is analogous to baker. in baker, congress told the states they could not have bearer bonds. greg she began by saying this is not market to the artistic pen. >> that it's on the first, not
the fifth and sixth which are licensed and authorized. my point is, you are telling the states they cannot do something. just like in baker. against the backdrop of statutes tells private parties, you cannot issue there were bonds. issue bearer bonds. states you cannot license private parties during gauge in something that violates federal law. if that were in the statute, this would be under the law that applied preemption and of congress says especially those that, do noto authorize and license private parties to engage in conduct law.would violate federal >> you said subsection two is the other side of the coin of subsection one. if that is the case that such
suggestion to cannot -- cannot be two severable from subsection one. thanks i would not know if i would use the phrase inseparable, but i think it and withouteparably constitutional issue. justice roberts: it does is same thing, right? it says it is illegal for -- activity under state law, the same thing as saying state shall not authorize individuals to do that. mr. clement: two points. a difference in text between thinkand 37021 and i there is an argument that the two parties have not had the brief because this has not been a 3702 case because i think 37022 is broader than license or authorized by law. putting that to one side, when i
would say is particularly when you read 370 to two against the backdrop of the pre-existing federal statutes in title 18 that made operating a sports scheme and- sports violation of law a criminal federal prohibition, then it basically says private parties, there is something that is essentially a cancer on interstate commerce that we do not want to take place -- >> how do we know congress would without one?o one makes regulation-free because it says, states you have to do this and it does not cause any impact on the budget of federal government. number two on your standpoint might cost money. you can see a legislature saying, one makes sense but i'm only going to vote for two because of one. it comes for free.
mr. clement: i would like to make two points. one is, on the idea of zero versus free, we looked at other preemption provisions and criminal provisions and cbo tends to schedule them the same way. justice gorsuch: that is neither here than there. if we are asking the severability question, one question is what congress would've done and a very different world. that is hard to answer but that is the question we are proposed. how do we know congress would one?passed to without if one is fine, too comes for free. mr. clement: i would like to refine the question and this way. i think the critical question is, what congress have wanted to have the first four prohibitions and the prohibitions in number two if it could licensed by law
provision? i think that is the relevant question because their constitutional question only goes to authorized or licensed by law. i think although these questions are difficult, this might be the easiest one you have because i think the statute operates almost the same way. the meta-fact of a statute that the states cannot sponsor, advertise, promote sports gambling games and neither can private parties pursuant to state law a end as a way, they cannot do it in violation because of other provisions, that would mean we should've gone for the injunction against private parties, which by the way we did in district court, that issue i think is still there in front of district court. tro we first filed our went against states and private parties. there was an unclean hand argument that arose to be joined only by states. the meta-fact of these two statutes without license is the same as a statute that sort of
left that to imply preemption. it is sort of the same statute. in a counterfactual world, would congress want a statute that told the states you cannot operate or advertise sports gambling schemes and told private parties you cannot operate sports gambling schemes resort to state law and by the way, you cannot do it because it violates criminal provisions. like -- >> but it is not vital. airline deregulation act, a world by the united states were market forces said prices. in all of the acts you are talking about together, congress --ted the united states still in the blank. mr. clement: congress wanted the united states to have no gambling taking place either by individual to or the states.
justice breyer: you had to use "state-sponsored" and that means legislation and therefore there is no interstate policy other than the interstate policy of telling the states what to do. mr. clement: can i met my answer? [laughter] mr. clement: congress did not want there to be sports schemes operating -- >> congress could have prohibited sports gambling it felt. so, what federal policy is served by this statute that would not of been served by the former? clement: two things, justice alito. congress good of her limited all sports gambling but it would've required it to regulate individuals as sports gambling as opposed to entities, businesses, that were providing sports gambling.
havengress could prohibited gambling enterprises in itself. no question it could've done that. what policy does the statutes are that that would not? clement: and actually furthers federalism values by saying common set of having a one-size-fits-all policy which says as a matter of federal law, everybody who operates a sports gambling scheme is gone to face two years and a federal penitentiary and a fine up to thousand dollars, the statute says, look, 46 dates are more or less doing what we want it they are doing it in 46 different ways -- >> how would it serve the interest of making it cheap by allowing congress to not have to expend any funding to enforce its laws? mr. clement: with all due respect, don't think trying to do it on the cheap was their intent. criminal statute does not really have like a big budgetary impact because you don't have to make like a new usa to enforce that
statute. you let everybody enforce it in the enforcement priorities that justice sotomayor alluded to work on the federal level as well. what is distinct about this is it basically says, look, 46 dates -- if you want to regulate this and 46 of her ways, have at it. if you want to repeal those laws, i mean, you can do that, that would violate 37021, the sports gambling the takes pursuant and it might violate 37022. federalhaving it a felony where everybody gets exact same sentence, wednesday makes an misdemeanor, and other state makes it a felony, and other state gazette with all of their enforcement ologies because they think it is really important -- >> what is the line you would draw between preemption and commandeering? mr. clement: i would draw the line discord through a newark
first versus prince because that was against the backdrop of all sorts of preemption statutes the court was distinguishing. i would say unless the congress basically tells the states they must regulate or pass federally prescribed legislation or enforce a federal policy -- >> what is the difference between saying "you must passes andiece of legislation" saying "you must maintain a piece of legislation on the books"? clement: asp by does not say you must maintain on the books. >> how is it different? mr. clement: a basically tells the state, you want to appeal that prohibition? you can do that. your active repealing the law will not violate paspa. think of it in relation to baker.
if the state repealed an existing prohibition be onarer bonds, that would not happen. if on the other hand, the state started issuing bearer bonds, that would violate. that is the way paspa works. you just go through and pick out a long list they cannot be controlled? mr. clement: i do not think it could do that, justice alito but i think congress said, look, we already say as a matter of federal law under a variety of revision that people who violate in gambling businesses violate state law. we have this prospect that maybe some states are going to authorize this and we're going to complete our federal policy by saying look, if you are a
part of a party operating a gambling scheme we don't care if you do that in violation of law or pursuant to state law that is pacific league prohibited by paspa. >> thank you, counsel. >> mr. wall. mr. wall: mr. chief justice and may it please the court. i think he has boiled down the case to two arguments. he says it is a commandeering problem because new jersey is forced to keep a law on its books and there is no copper is a federal regime. that is incorrect. look at page 383. require at remotely state to keep a law on its looks. it says the state cannot give operation or effect to its preemptive law. that is exactly on this word for word what justice scalia said in prince. if the state passes a law
prohibited by federal law, the state can be required in state officials can be required not to give effect to that preemptive law. that is not prescription in any meeting of the word and as to the second, you can just cut breath of federal regime is made up for the reason mr. clement gives. states may not regulate interstate commerce in a particular way because of federal policy is that the states are to take their hands out that particular part of interstate commerce. even if the court thinks it is a principle it does not to reach it here because it is actually a federal regime beyond passage itself. federal law criminalizes the operation of a gambling scheme in violation of a state laws and with states in the 1990's started authorizing these things, congress handled the other half of the circle and said, all right. look, we won't make a criminal but we will put in an objective action so that states that started authorizing sports gambling schemes which we know states can't do and individuals can't do and they have never argued there is any problem with
those, than of state start doing that we will get a civil injunctive action and that is far less invasive of state sovereignty. the states cannot do it, the individuals cannot do it. they have never argued there is any -- >> can you go back to the basic question? discussion from the fact that the law exists, if it is a partial or full repeal, the law does not exist. and of story. that is the baseline. so, why is a partial repeal unconstitutional or in violation of the preemption clause? because if the law did not exist, the fact that they have carved out a certain section of the population for whom the law will stay in existence, that is not actually authorizing.
that is merely repealing. >> i think that would be right. a lot of the things the state would do, when the states as we are going to repeal the law in such way that nobody can run a sports lottery except for the 12 licensed state casinos and racetracks have already condoned gaming operations -- >> i have not looked at the licensing laws in new jersey because they were not provided to us and it was further failed than the question but the court low said it was not passing on that question because it found a different answer. that, you might be right if the licenses that those two facilities hold really are general and say, you are authorized to do it any gambling permitted by law. and you might have an argument. it if all they do is repeal, what does it matter? it goes to something justice gorsuch said earlier.
if they interpret the statute is marginal repeals they can create a constitutional problem and leverage that to try to take down the entire thing. it is simple. if the court sticks to what it says and got there and says the authorization is firmly enabling conduct, then it channels the particular legislative providers. >> where is the line? third circuit said private gambling is not covered. on page 30 of your brief you indicate maybe the state could have a certain dollar threshold and that would not be authorizing. i am not clear why that would not be authorizing if you specify threshold dollar amount in state law. what if they said you can do it at the elks club? is that authorizing? where does the government drop the line? mr. clement: i think the only thing the court needs to say is in the context, however the state gets there, legislative
up, legislative down, then met, peel, does not matter. if you what it does is channeling gambling to stay preferred providers -- >> we have no record of that as just a sotomayor points out. repeal of any degree of any kind, why shouldn't the respondent have to live with that? mr. wall: i do not think it is a record of question, they affirmatively said we are going to lead only to casinos and racetracks a that. that was a problem. they did not dispute it violated paspa. earlierotomayor: the version actually explicitly instead of complete operation requirements and other things. i do not think they would've had a snowball's chance to say that was not licensing or effectively operating. to hear what they are saying is, there were no laws.
there is a law prohibiting all gambling. we are now going to repeal part of it and say, some gambling is ok. so -- >> unless wants the court when susie say is no appeal or authorization, even if new jersey took away its operation you at the regatta, then could just an active prohibition and feel at back with them you want. unless the court is prepared to say it to repeal can never be authorization, this particular repeal -- i think all the court needs to say is for paspa purposes, if you are licensing is he knows and racetracks, this requires affirmative comment from the state to enable. it is no longer constriction. we're not saying you have to maintain anything. it is -- >> would've the repeal is across the board, no exceptions? mr. wall: if new jersey just
repeal, we don't have a problem. justice roberts: are you serious question mark there is no problem if anybody can engage in any gambling they want? eight 12-year-old can come into the casino -- you're not serious about this? i am very serious about it. state-sponsored gambling schemes. it does not matter if there is a gambling pool, was not going against all gambling. astice roberts: that is not real choice if that is all they can do. mr. wall: they can repeal or strengthen in various ways. one thing they cannot do is in the onely engage policy. i will grant the congress -- >> the last time around, the government did say in does noting that paspa require new jersey to retain
prohibition pre-paspa. it is free to repeal this prohibitions in whole or in part. was that statement inaccurate? mr. wall: no, i think we did not take into account the gamesmanship and which it would engage. we were saying the same thing we're seeing her today, that ony have a lot of options the table. the one thing they cannot do is the one thing congress preempted. we did not have in mind that new jersey would come back and do the 2012 law with the partial appeal. i wish we had up to footnote in centcom of new jersey tries to accomplish the same ring but styles it as something different, that would equally be aspauthorization for pap purposes. i will completely grant the congress's same state would not authorize this if they cannot often from it. that was true for a long time. i think congress may well want to revisit that. spa does not have
anything to do with it. new jersey is trying to create a small problem with two words and create a small sickness to take over the entire nation. they have to do that because that is the only way they can get where they want to go, which is to take down the private probation in 3702 to which they have never argued is even potentially -- nots this not a prohibition to repeal because it is limited to the casinos would probably have all kinds of other roles and regulations. and, under those circumstances it amounts to an authorization, not a simple repeal. is that the argument? mr. wall: exactly. any law that says everybody cannot do it except for you two were three, that is an authorization. it does not matter if it is
legislated up or down. ask what you say that, think the argument is that you say there is no federal policy which says -- there is no federal policy against authorizing sports gambling but for a federal policy that says a state cannot authorize sports gambling and that is to commandeer. of i got that right? thanks i think that is the argument but i think it does not make sense because baker would not have been different if in addition to having a prohibition on states and and eventual's it would of said states would preemptively try to authorize conduct separately barred by the active and it said it was commandeering of violation, the state would sense -- respectfully submit on how to blur the clear line. minutes, mr. awesome. mr. olson: thank you your honor.
mia please the court. if i have your argument right right now, say yes. to four.d a right >> i had a rate just now? forget. laughter] i have a question. the respondent says new jersey legislature's duties eckley what he says they should not or would not do witches there can did legislation that would fully repeal of the sports betting prohibition. they understand it is being houses.d by both words and stand right now? mr. clement: i do not know. i think it is irrelevant. arguedsotomayor: but you and -- >> mr. olson: they are not laws shut. what i said was congress could not have possibly have intended thehat bill to prohibit expansion of sports betting to
have it construed in a way that would remove all limitation. just a sotomayor: what is so crazy about states consuming the 12-year-old should not going to gambling houses? having roles of some sort creating laws regulations conduct that would prohibit that sort of thing. placet congress can do is a restriction on sports betting. it can adopt the provision that to have,ted nevada which is careful regulation of something taking place. what we have now is activity that is billions of dollars taking place throughout the united states. it is all unlawful. what new jersey decided to do -- >> that is your selected
prosecution theory? they are permitting fantasy schemes? not talking about fantasy at all. i am talking about betting on sports games. just a sotomayor: there are four to continue.ted mr. olson: it has opened books and so forth. those other states were small slivers of lotteries. what i am saying is that betting on sports is taking place all the united states. if 5% of it is illegal in nevada, the rest of it is illegal. to assist decided sotomayor: -- sotomayor: --
>> and acted laws with respect to marijuana and other laws. various states have done various different things but we have no question here that whatever congress intended to do was passed a law. we look at the statute, the totute says it is an act prohibit gambling under state law, not federal law. the process starts with the idea that there must be a federal constitutional provision on a statute or in the constitution in than the federal government may take steps to prevent states from interfering with the accomplishment of that. my opponent mr. clement talked versushe south carolina baker case. south carolina versus baker samefically said the exact thing that new york versus united states as a anti-prince
kay says. sections 310 regulates state's activity does not seem to control or influence the manner in which state regulate private parties. the same thing is true in the reno case. my opponent talked about the statutes of general application and in the last sentence of that case, this court specifically reserved the question whether congress can single out states with respect to activities and then decide whether to do that on the outside of context of the statute of general application. first filedit was by the leagues, the complaint paspa imposesaid a broad a.m.. ban.broad >> on page 15 of the federal government brief, we are saying attempt tothat
change what new jersey has done by paspa.ied no one knows there is specifically on the agenda and opportunity for congress to nullify state law. that debate with respect to federalism had to do with whether congress would be permitted to regulate interstate commerce or states or be required to regulate commerce first and as an adjunct to that restrain what states could do. if federal government, congress wanted a prohibition under state law because it would have no responsibility, no accountability and a brief says, if you are complaining about accountability, call your senator. that is exactly what the united states talked about, what this court talked about in new york
versus united states. the accountability is very important. the structure is important to the liberty of citizens and this statute by lights that urbain structure. -- violates that urbain structure. >> thank you. cases.er: landmark as c-span history cases about the supreme court returns in february. join us as we hear the human drama between 12 frequently cited cases heard by the high court. ine on c-span beginning february. ♪ announcer: c-span's washington journal. live every day with news and policy issues that impact you. coming up tuesday morning, talking about republican tax reform efforts and upcoming fiscal deadlines. about the latest
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