tv Supreme Court Case Christie v. NCAA CSPAN May 14, 2018 8:32pm-9:37pm EDT
justice alito said they cannot regulate gambling directly but each is free to act on their own. this oral argument is just over one hour. >> your argument first this morning 16476 in the consolidated case that a jersey thoroughbred horsemen's association versus ncaa. mr. olson? >> mr. chief justice of it may please the court one of the most important decisions of the constitutional convention of 1787 was replacing the failed c that govern states with a government to regulate individuals but not states. in the words of this court in the new york case commerce may regulate interstate commerce
directly that it may not regulate states regulations of interstate commerce. >> what about state law? and the federal government initially takes that physician with interstate commerce to have that inconsistent state laws. >> and then to regulate this way or don't regulate? >> gave the states a choice in conjunction with the regulation of the area. >> the states were told that
if you don't if you don't regulate neither will we. >> consequence of that that the states could regulate according to the standards established by the federal government with respect to interstate commerce that it was left to the federal government that is a direct command to the states without any effort with sports wagering. >> that is the obvious example. >> yes and that is a good example because in that case the congress of the united states took responsibility with respect to regulation and that statute is regulating in different respects. >> we don't want the groups to
be regulated. that is a feder statute and we do not regulate their prices the free market does. here they say we are not going to regulate sports gambling at all we will not forbid it and we want you to forbid it. >> i do see the analogy and the case that which you are referring discusses in great detail the scheme which included as a portion of the scheme was a preemption of the state from regulating conditions of service and that sort of thing. but justice breyer, that is an area that is an example of the federal government taking responsibility for hair -- for how the airlines in this country yes but this is
completely different. >> what does that mean? what you looking for for the federal government to take responsibility? suppose the federal government said we don't want states to regulate and we don't want to regulate ourselves, think this is what justice breyer's question was, a, a free market. is that enough responsibility the federal government has taken? >> i believe it is not because that is a situation where congress would be seizing we are choosing the states that you may not participate to regulate commerce that is taking place in your state we don't want to take any responsibility we want to put the burden of accountability and expense on the states to do so this is quintessentially. >> this is what i am asking is that you are suggesting the federal government to preempt the state has some type of
comprehensive regulatory scheme. and the question is, what are we looking for? if that was the test? how do we know that they have enacted regulatory comprehensive scheme in order to allow preemption of state rules xp mcneely thing i would say to answer your question is when you say sufficiently comprehensive to the extent the federal government or congress has taken responsibility to regulate in that field, once it has done so it can then preempt under the supremacy clause inconsistent or contradictory state laws but the supremacy clause is where this comes from. it requires the constitution statutes or treaties are the supreme law of the land the court has construed that.
>> and it doesn't have to be inconsistent if the federal government occupies that belief like texas versus arizona the states cannot regulate simply because it is reserved for congress. >> but in this case to avoid commandeering concerns interpret the law that if states do legislate that it is preempted? >> first, if i understand your question correctly justice kennedy, if congress had taken responsibility to decide to do something like sports wagering to regulate or take responsibility in some respects then it could say where the state is doing something that is inconsistent then that could be preempted but the title of the statute
will prohibit sports gambling under state law select congress as they are and when that passes the statute, it has a report from the cbo to specifically say that this will have no budgetary impact on the federal government. >> we interpret that, if you do regulate, then it will be preempted. >> it may be they could adopt a statute that explicitly expressly preempts or in some cases preempt the state law that is inconsistent or in a way to obstruct the federal objective. >> is this your argument? just say yes. forget the airline act that was a bad example for this reason because i think what you actually say is federal government makes a determination of what congress
will be like and respect to this particular item. it can do that. including a determination. but that determination but once it makes that determination state laws inconsistent is called preemption. but what it can't do that the states can do it they want but they cannot do it that way and then to tell the state how to legislate in which case it is the state and not the person who becomes the subject of a federal law. >> i wish i said that myself. [laughter] >> but you did say that. >> but they is my argument and the court says that almost the same way new york versus the united states congress could
preempt radioactive waste regulation by the tenth amendment limits the power of congress to regulate in the way it has chosen in that case instead of directly regulating congress as it directed the states to regulate that isn't united states that is the case in the same language appears in earlier cases going back through 1911 in the coyle case. >> but licensing casinos and horseracing doesn't that involve in a commercial activity? >> certainly it is a commercial activity when individuals are engaged in betting on sports. >> why isn't it if the state licenses that? >> it doesn't change the character and who may regulate
that with interstate commerce. >> you just have to watch the lines coming from all different directions according to gambling? >> yes. >> and having have it they already said the federal government can regulate that activity by the state? so why is it telling the states that you cannot license or authorize to a place without gambling a strict prohibition of a commercial act? >> it is interstate commerce just as the language in the new york case congress may regulate that field. if it does, which congress has not chosen to do in this case,
then it can preempt inconsistent state laws. >> you have not challenged 37 subsection? >> that is just a counterpart to subsection one. >> but you did not challenge it. >> we challenge the entire statute but we were not sued under that section but for violating subsection one. subsection two is another side of the same coin because that says pursuant to law and the law that is referred to in subsection one we say is something that the states can do and if congress chose to stop it then it would be unconstitutional. >> but by those terms subsection two is individuals and not the states. >> only if the individuals operate pursuant to the law which means pursuant to the state law referred to in
subsection one. this is a little confusing the way congress chose to do it but the government refers to that as belt and suspenders because subsection two simply seeks to do indirectly what we contend subsection one cannot do directly under the constitution. >> with of section one if that is not challenged either then the man on the street operating and gambling. >> this is something similar justice ginsburg, or to the south dakota or the baker case where the federal government chooses to enact a law of general application to apply to private parties engaged in interstate commerce and when
the states were engaged as a market participant to the same degree as interstate commerce. so to the extent that congress initially decided to regulate this area and put itself into the field to regulate private persons it could then address the state if they choose to engage in the same activity. >> so with that prohibition from private parties on the state then what you accomplish if you have that they are constitutionally infirm? >> it would be constitutionally infirm, your honor, because the states and the congress didn't attempt to regulate interstate commerce
directly and if it did so or if it did not do so, quite obviously could then regulate the state as a participant to the same degree was regulating private citizens. >> that is pretty comprehensive with that aspect is total prohibition. >> so you seem to be saying that you cannot regulate if it is a total ban but that is very comprehensive. >> i agree with the way that you state that but it says we prohibit sports betting or gambling on sports then they could address the state in the same activity but it did not do so. this statute attempts to have the states to prohibit sports gambling did not sto there it
said sports gambling under state law and what it intended to do this is what you talk about in the new york case new york versus united states with the accountability expense and responsibility the burden is on the state to specifically say as the cbo says it has no effect on the federal budget because the federal government does nothing and it also said in the senate report has no regulatory impact. >> if i read these cases to set up a principal the federal government cannot script state officials for its own purposes the federal government does whatever it wants consistent with the commerce clause but it cannot script state officials to help the federal government do that so if that is the way i see these cases then who is being conscripted to do what?
>> the court uses the word commandeering so all of those verbs are applied so conscripted here means the legislature of new jersey has been told it may not regulate an activity taking place in new jersey all over new jersey illegal gambling going on they cannot regulate the activity. >> so the way that you say that that the federal government says you can't so to me that sounds like preemption that the federal government take some type of action to say we've got this you can't do anything. >> it is so fundamental at the constitutional convention as discussed in most detail in the new york case that the difference is in the circumstances, where congress has taken the step to regulate commerce that can preclude
state efforts that interfere with that or conflict with that but when it sets out of the initiative at the first stage to regulate the legislature, then we have a situation where court has ordered pursuant and told new jersey you cannot repeal the statute you try to repeal. >> do you see no difference between the federal government saying to a state you cannot take that deferred policy option you would like to take but on the other hand the federal government says to estate, you must help us do something. because i thought our cases are all about the second you must help us and be our assistant when we try to advance the policy objective so i think what i am asking you for is how is new jersey
put in that position with respect to the statute? >> in many ways it is being told it may not regulate in the way it chooses to exercise its discretion with respect to an activity taking place in that state. it must enforce the law on the books that has attempted to repeal. the executive branch and the legislative branch of the state of new jersey have been conscripted. >> but asking you to qualify that because the third circuit the first time around said how much the law enforcement priority so there isn't a federal prosecution if the state says we have other things to do that are more important than casino gambling.
>> justice ginsburg the court said that and the court said you may repeal any portion of your statutes and make any policy you want the federal government said you may repeal all or any part of your sports betting prohibitions that is exactly what new jersey did but you can imagine justin one -- justice ginsburg having a law that the federal court has ordered new jersey to keep on the books that prevents it from repealing that law which means it is the same as requiring it to enact the law to maintain that law and then the officials of new jersey, law enforcement and the governor say we will not enforce the law on the books after he took an oath to uphold the laws of new jersey that is a very strange construction of the preemption
clause and commandeering is all about but. >> though the injunction tells the governor he has to enforce it? >> no. it says the repeal must be reversed because of the act is unconstitutional then those laws go by the wayside no matter wha what. but my question is i read the injunction i don't see it anywhere that he has to enforce this. >> it doesn't the governor's responsibility. >> if every governor enforced every law on the books the state would be more than bankrupt. would have no way of surviving. there are countless laws and even laws that are enforced and not enforced totally. states make choices all the time. >> yes. the states make those choices. there is nothing here telling the state.
>> there is an order from a federal court that the legislature having repeal the statute must not repeal it and put it back on the books and what you say the governor doesn't have to enforce that law but the governor and executive branch of new jersey officials have taken an oath to uphold the laws of the state of new jersey now the federal court to basically says we will order the statue to be on the books but forget about it. this is a strange situation. >> the difference between that and the law that is unconstitutional? this is preempted by a simple rule by the court it is preempted. period. end of story. if the court had simply said this is preempted.
>> but this, in your question is a repl rohiof ption of sports betting which means the repeal that the legislature carefully did in response to the third circuit decision and the government and the sports to say you can repeal any way that you wish. >> i have three ways to look at this and one is to say that this is an one -- a repeal which is your argument that it does or does not permit a repeal. if i set it permits repeal of all client partial or not partial, then we avoid the constitutional question. then that is whatever repeal that you want to. second, the statute does not prevent repeals at all.
that is what you are arguing right now making this unconstitutional. and the third approach, basically it permits complete repeal and not partial repeals because partial repeals of that nature are actually authorizations prohibited by the law those are the three approaches. am i missing something? be make yes. the effect of the statute is to prohibit new jersey the statute was intended to be in sports betting. >> that is the fourth way. >> no. i submit this is the only way to look at the statute from its title to the legislative history to the exact language it was intended to prohibit bets betting under state law it is taking place under state law all over the united states
except nevada with the other exceptions it is illegal but what new jersey has decided not just that we want to repeal because if you repeal. >> you did hear that there was no authorization because the statute did not regulate sports betting to take place you have abandoned that argument. why? >> we are responding to the arguments from the third circuit decision. >> we interpret statutes to avoid constitutional difficulties. >> the only way to avoid that which has been suggested is that there may be some appeals in the third circuit language with too much authorization which is very much like the language of too much policymaking in the court said that isn't permissive with
respect to regulating what the states are doing but we say to the extent we make that argument. >> but on statutory grounds. >> except the consequence of that your honor is we would have a statute intended to prohibit sports betting and the opponents say in order to make that constitutional they recognize commandeering right from the beginning we can allow you to eliminate all prohibitions of sports betting with that effort by congress to stop the spread of sports betting leads to the interpretation were all limits on sports betting are removed. >> if the courts permit i would like to reserve the remainder of my time. >> mr. chief justice if i may please the court there are three basic things, first it
tells the states they may not they themselves operate or advertise sports gambling schemes such as sports based lottery. second it tells private parties in 37022 damien operator advertise a sports scheme pursuant to state law and third it tells the states they may not authorize her license third parties to conduct those that would violate federal law. >> so this mechanism leaves the law that the state does not want the citizens of the state of new jersey are bound to obey a law that the state doesn't want the federal government compels them that seems commandeering. >> justice kennedy we don't think of it that way. if new jersey wants to say we left all prohibitions we think at least it is not preempted
as written it is a separate question especially new jersey the private conduct that would take place pursuant to that repeal especially casino and racetracks would be prohibited. >> but a partial repeal is profiting? >> this is. >> what part of the repeal is not? what could the state do? be my first of it is important to recognize does regulate comprehensively the court that he doesn't regulate sports gambling in the generic sense and says nothing about individuals gauging in sports gambling so if new jersey one day all prohibitions from supply and demand it is partially repeal. >> can the federal government and not the law say no state
shall pass income tax greater than 6%? >> i think it might be able to do that, put it this way i don't know why am principal that would be so different from baker which no state shall issue a bond i think that is the same but that is what mr. olson suggested that the idea that there is this preemption provision and even he seems to believe if congress regulated the field there would be no problem. >> but this goes to the prerogatives of the state to function their own government if you say you can go so far to regulate what level of income tax they can charge. >> you are right mr. chief justice i should say i don't think it would be a commandeering problem there could be other federalism
problems if congress tells the state to move the state capital i am not sure that is a commandeering problem but may be national league of cities problem but. >> you can imagine a situation where it is the same type of commandeering if they want to reduce expenditures on public employee pensions it tells the state you cannot spend more than 20% of your budget on state employee pensions commandeering the state to achieve that result can they do that? >> again i don't think that is a commandeering problem i think it is probably estate and cities problem if the court wants to say there are things then that is one thing. >> so your hypothetical indicates that the accountability coming from the federal government that is
precisely what federalism is designed to present and in new york they said it isn't an accountability problem. i do think it is worth recognizing you have three legs of the stool one says you cannot do this and then the other side doesn't have the objective one says private parties with state law because regulation. >> are there other statutes that rely on prohibition without accompanying federal policy? >> justice kennedy i don't know if there are maybe the policy that they enforce is implicit that the provision says to have discriminatory taxes against railroads congress says they don't want to have discrimination of
interstate commerce but here you don't have to look at the policy they say we don't want sports gambling we don't want the states states door private parties to do it. >> isn't it enough to say it is illegal to engage in gambling? >> but then the normal clause says notwithstanding with the contract. >> mr. chief justice i think that is what it does a think it was worded in a particular way for a particular reason the one set of federal statutes to look at interpret with the pre-existing provisions title 18 that already told private parties if they engage in the sports gambling scheme or a gambling business in violation of the law it was already a federal felony.
>> this is subsection two that is an odd way to pulley something it is illegal if pursuant to state law? so if the state law if that is the only situation that is illegal then you can do it? >> that's why i think it goes away entirely if you understand that before congress passes the law it was already unlawful as a matter of federal criminal law or a private party to operate a sports game in violation of state law. >> in violation of state law. go back. one of the purposes not through justice kagan but through this case the concern that i can find that federal statute should address themselves to individuals and not the states.
>> that cannot 100% because you have a preemption but if you look at it is basically true with preemption to be a commerce clause phase that is the exception then asked what have we here? osha? nothing like that. there is no regulation of that kind. is there the deregulation act that says there is no free federal policy? no. because all the things that you mentioned have the words state.and it so all we have here are a group, if you like 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 the states to do what the federal government is doing and in those
circumstances it falls on the subject matter of this law is the state. that is what this is about to tell the states what to do and therefore it falls under commandeering. that is how i was reading it the notion of not addressing itself to states. >> i will try to answer the whole thing that i will start with the proposition that there is nothing wrong with congressional legislation operating as the market actors and that is the first four prohibitions 3702 plainly do they say you cannot operate advertise sponsor or promote sponsors one -- sports gambling schemes. it also tells private parties you cannot do those things pursuant to state law and keep in mind they cannot do it as a member of federal law because
it is a federal criminal prohibition. so that they found that they are authorized and all of those are is a expressed preemption provision for states and local governments are the ones that can pass laws that are preempted but it is analogous to baker congress told the states they could not have their bonds and also told private parties you cannot have their bonds. >> but you begin by saying it is market participant. >> it is for the first four but not the six which are licensed and authorized but my point is you already are telling them they can do something despite baker you cannot issue the bear bond but especially against the
backdrop of private parties cannot issue bear bonds or operates sports cabling schemes so it is a provision that says you cannot authorize or license private parties to engage in conduct to violate federal law that provision were in the statute the same laws would be preempted and if congress says especially don't do that or don't authorize or don't license private parties to engage that will violate federal law. >> you said subsection two was the other side of the coin if that's the case. >> i don't know if i use the other side of the coin but it isn't just a verbal but operates independently without the constitutional issue.
>> it says for individuals to follow state law to engage in activity to authorize under state law. that they should not authorize individuals to do that. >> your honor, couple of points there is a difference in text and the argument the parties had this really isn't 3702 case but that is an argument for 37022 pursuant to law broader than life but put that to the side but what i would say is particularly when you submit 37022 against 022 against the backdrop of the pre-existing federal statute title 18 that is in violation of state law, the federal criminal provision says
private parties with a chance for interstate commerce. >> i don't know if congress would pass because it says that you have to do this and cause any budget impact but for your interpretation and therefore that might cost money you could see the legislature to say one make sense because it is free. >> so two points. with the idea that it is your we actually looked at other preemption provisions and other federal criminal provisions and cbo scores them the same way. >> but my question is with the
severability question that the chief justice pose what would congress have done? that is a hard question to answer but that is what is proposed and how do we know congress would have passed that it comes for free? >> just discourse which if i could refine the question this way but congress had wanted to first prohibitions if that was authorized by law but that is a relevant question because the constitutional argument only goes to license or authorized by law but it could be the easiest one you'll ever have because the statute operates almost the same way
with the effect of the statute that says the states can't sponsor operate advertise promote sports gambling schemes pursuant to state law and they can't do that in violation of other provisions but that would mean we should have gone the junction against private parties and we did in the district court so we went against the state and private parties then there was the unclean hands argument then they joined only the states but to that effect of those two statutes without authorize is the same as the statute for preemption essentially the same statute so i think in the counterfactual world if congress wants a statute is still told the states you cannot operate or advertise sports gambling schemes and told private parties you cannot operate sports gambling
schemes in violation of state law because that violates prohibitions obviously it is lawmaking but not vital. >> one sentence answer in the regulation act congress wanted the united states to wager market forces to set prices so all of those put together congress wanted the united states, fill-in the blank congress wanted their no dates sponsored or operated gambling taking place either individuals been a of course you had to use state-sponsored and you had to use the word state-sponsored there. that means legislation so therefore there is no interstate policy other than the interstate policy of telling states what to do.
>> and i meant my answer? laughmac. >> they did not want there to be sports gambling schemes. >> they could prohibit sports gambling themselves somewhat federal policy is served by the statute that would not be observed by the former? >> justice alito that congress could prohibit all sports gambling that would require to regulate individual and sports gamblers as opposed to entities that were providing. >> so i amend my question if it permitted gambling itself it could have done that assuming the commerce clause so what policy does the statute. >> ironically enough it has the federalism values to say
inead of having a one-size-fits-all policy which is a matter of federal law everybody operates a sports gambling scheme will face two years in the penitentiary with a fine of $10000 it says now they are doing what we want but 46 different ways. >> so how does that serve the interest to allow congress not to expend any funds to enforce the law? >> with all due respect you don't see this trying to do this on the cheap as her principal concern when it does pass the statute it doesn't really have a big budgetary impact because you have people to enforce the statute you just let the enforcement priorities work on the federal level as well as he preempt the state law that tends not to have a budgetary impact either but what is distinct about this is it says if you want to regulate this 46
different ways, have at it. you can do it. that repeal will 37022 or 3701 but or 3701 but i think rather than have one-size-fits-all federal felony everybody gets the exact sentence to have where it is misdemeanor another makes it a felony another goes that it with all their policies. >> what is the line you see between preemption and commandeering. >> new york and prince because it was writing his opinion against the backdrop of preemption statutes that various parties that were relevant and the court was distinguishing to say unless congress basically tells the states they must pass a federally prescribed legislation or enforce a
federal policies. >> what is the difference to say you must pass a certain piece of legislation and to say you must maintain a piece of legislation on the books? >> i don't think there is necessarily but i don't think that is what it does. it doesn't say thou must maintain your existing prohibitions on the books. >> it is different because basically tells the states you want to repeal the prohibition , you can do that your act will not violate the law. think of the analogy to baker if estate had a pre-existing prohibition for the bare-bones it would repeal that the nothing what happened but if on the other hand the state itself started to issue bare-bones with no prohibition or private party started to issue their bonds then that
would violate the federal statute. that is how it works. >> so can they pick out a long list of statutes that can't be repealed except in full? >> i don't think they can do that justice alito but they said we already say in a variety of provisions that people who engage in gambling businesses in violation violate federal law. we now have a prospect that state authorize and we will complete federal policy to see if your private party operating sports gambling we don't care if it is criminal or civil i don't think that is constitutional. >> thank you counsel.
>> mr. chief justice me please the court date mr. olsen has boiled down the states case has two basic arguments this is a commandeering problem that new jersey is forced to keep law on the books with no comprehensive for federal law look at page 383 the three the injunction does not remove the required state to keep it on its books estate cannot give operation or effect to the preemptive law that is exactly almost word for word what justice scalia said with the supreme law and that's the premise he closet the state passes a law by federal law the state can be required to give that up but as for the second i think the federal regime is a federal statute
that states may not regulate in a particular way because it is part of interstate commerce. but even if the court doesn't reach that here rather law criminalizes in violation of state law to authorize these things congress handled the other half to say that we will not make it criminal but we will do injunctive actions so that the states are authorize sports gambling schemes that they have never argued there is a constitutional with those legs that they do start we will give a simple injunctive action that is far less than patient -- invasive states can't do an individual can't do it. >> go back to the basic
shouldn't they have to live with that? >> and in the 2012 law to say only casinos and racetracks can do it. but then they came back with casinos and racetracks. >> but then they explicitly licensed instead of a complete operation requirement i don't think they would've had a snowball's chance to say that wasn't licensing reflectively operating but here what they say and then we will repeal some gambling and with that authorization and with that
supremacy clause to enact prohibition and peel that back where we want that. but i think all the court needs to say is that if you are channeling to particular agencies like casinos and racetracks and then to enable we don't tell them that you maintain anything but to sit there to do nothing and to be perfectly compliant. >> what if the repeal is across-the-board? but just to repeal the prohibition there is no problem with that. >> you have no problem if no prohibition at all and anybody can engage in any gambling they want and can come into the casino? you are not serious? >> i am very serious mr. chief justice but this is
state-sponsored sponsored we had an office pool. >> but if you put the stay in the position that is the only thing they can do that is not a real choice. >> bacon repeal in whole or in part one thing they cannot do is affirmatively engaged the conduct that congress took off the table as a policy matter i will grant that. >> but the last time around that it does not require you to retain prohibition in whole or in part that is what the government has presented the neck no i don't think we took into account how they could
engage we said the same thing that they have a law of options on the table the one thing they can't do is what congress preempted they can engage in partial appeals but we didn't have the mind new jersey would come back as a partial repeal and yes i did wish we said if they try to accomplish the same this differt would be authorization just to return to your question mr. chief justice i would completely grant congress assumes states would not authorize this at they cannot profit from it and if they start lifting up prohibition i think congress will want to revisit that. what new jersey is doing is giving the unnatural interpretation of federal statute to create a small problem then try to leverage that you take down the entire system and that isn't the way that interpretation severability works that they
have to do that that is the only way to get to where they want to go to take down that private prohibition which they have never argued is potentially commandeering. >> you say not repeal because it is limited to the casinos that we have other rules and regulations. and so with those circumstances it amounts to the authorization is that the argument? >> exactly if you try to figure out what constitutes the authorization for the sports gambling scheme if it says everybody can't do it except for you that is authorization doesn't matter if they get their legislative up or down. >> that i think the argument is there is no federal policy which says there is no federal policy for sports gambling but
for a federal policy says a state can't authorize sports gambling and that is commandeering do i have that right? >> i think that is the argument but it doesn't make sense for the simple reason baker would not have been different that it is the states are preempted to authorize private conduct if the court finds that to be a common during violation the government will respectfully submit that has been an awfully long time how to figure out commandeering. >> thank you counsel five minutes mr. olson. >> thank you are honor if it may please the court. >> if i have yr argument right y yes otheise forget it. >> you had it right before. [laughter] >> i do have a question so the respondent says the new jersey
legislature is doing exactly what they should not or would not do that to consider legislation to fully repeal the sports betting prohibition to be considered by both houses so where does that consideration stand right now? >> i don't know federally and think it is irrelevant. >> but you argue to us no state legislature would do that but here we do have two bills introduced that would do just that. >> they are not laws yet and what i said congress could not possibly have intended to prohibit this expansion of sports betting to have that construed in a way. >> so what is so crazy that states would never want 12 -year-olds and that they
prohibit that with the rules of some sort to prohibit that sort of thing. >> what congress can do to enact a statute and to have a reticulated statute to adopt the provision that is regulation so what we have now is activity that is billions of dollars taking place throughout the united states it is all unlawfu unlawful. >> so your selective prosecution theory? >> i'm talking about betting on sports games. >> those that are permitted to continue? >> nevada has sports betting
and it is regulated it prohibits criminals from going into the business together three states were small slivers of lotteries but all of the evidence supports this that is taking place all over the united states 5% is legal in nevada the rest of it is illegal and new jersey decided. >> why don't we legalize marijuana because there is a market out there for those drugs but we made a policy choice we don't want the states involved in promoting the enterprise. >> but to enact laws with respect to marijuana and other substances that is in play right now because states have done various things that we have no question here that
what congress intended to do was pass a law. look at the statute where the statute says active to prohibit sports gambling under state law that under federal law that preemption process starts the idea there must be a federal constitutional provision in the statute or in the constitution then the federal government may take steps to prevent from interfering with that accomplishment but to talk about the south carolina versus baker case. >> specifically that says the exact same thing that new york versus the united states says section 310 regulated states act they do not seek to control or influence the manner in which states regulate private parties and that is true in the case talk
about the statute's general application in the last sentence the court specifically reserved whether congress could single out states in response to activities if it could do so with the statute of general application. when the suit was first filed the complaint specifically said to have a broadband on sports wedding long -- betting. >> you can have a couple of extra minutes. >> thank you mr. chief justice. >> from page 15 of the federal government's brief, we say that state laws that attempt to change what new jersey has done are nullified. anyone familiar as this court is with a history of the constitutional convention knows specifically on the agenda and opportunity for congress to nullify state law
was stated the whole debate with respect to federalism had to do if congress would be permitted to regulate interstate to regulate interstate --dash regulate states or commerce first or as an adjunct constrain with the states would do that is exactly what the statute did the federal government congress wanted a prohibition under state law because it would have no responsibility or no accountability and it says if you are complaining about accountability call your senator that is exactly what the united states talked about what this court talked about new york versus united states accountability is important to the structure is important to the citizens and the statute violates that structure. >> thank you counsel the case is on -- submitted.
>> for arguments tomorrow a case considering president trump's decision to end the deferred action for childhood arrivals program. it was created under the obama administration to prevent the immediate deportation of individuals who were brought to the united states illegally as children. we will have live coverage of the oral argument tomorrow 4:00 o'clock p.m. eastern c-span3. watch online or listen on the c-span radio app >> i call it the disciplined presidency eisenhower carried himself with disciplined man