Opposition Brief — Christie v. Natioal Collegiate Athletic Ass'n, 138 S. Ct. 464 (2017) (No. 16-476)

Nos. 16-476, 16-477

Bun the

Supreme Court of the Gnited States

GOVERNOR CHRISTOPHER J. CHRISTIE, et al.,

Petitioners,

Vv.

NATIONAL COLLEGLATE ATHLETIC ASSOCIATION, et al.,

Respondents.

NEw JERSEY THOROUGHBRED HORSEMEN'S

ASSOCIATION, INC.,

Petitioner,

Vv.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.,

Respondents.

On Petitions for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRLEF IN OPPOSITION

JEFFREY A. MISHKIN PAUL D. CLEMENT

ANTHONY J. DREYER Counsel of Record

SKADDEN ARPS ERIN E. MURPHY

SLATE MEAGHER EDMUND G. LACOUR JR.

& FLOM LLP KIRKLAND & ELLIS LLP

Four Times Square 655 Fifteenth Street, NW

New York, NY 10036 Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Respondents

December 14. 2016

I )

QUESTION PRESENTED

Congress enacted the Professional and Amateur

Sports Protection Act (“PASPA”) to stop the spread of

state-sponsored sports gambling PASPA prohibits

states from sponsoring operatang, advertising,

promotang licensing or authorizing sports gambling

and it prohibits individual! conduct pursuant to any

such state law Nevertheless, in 2012, New Jersey

eliminated a prohibition on sports gambling and

adopted a law and regulations expressly authorizing

sports gambling at casinos and racetracks The

district court and Third Circuit held that PASPA

preempted that law and rejected New Jersey's

argument that PASPA commandeers the states by

prohibiting them from authorizing or licensing sports

gambling This Court denied the state’s petition for

certiorar!

Undeterred, New Jersey passed another law that

avowedly sought to “implement well regulated sports

gaming” by “repeahng” cxisting prohibitions on

sports gambling but only as to sports gambling that

occurs at a casino or racetrack, by individuals who

are 21 or older, and on particular sporting events

The district court, a Third Circuit panel, and an

overwhelming majornty of the en banc Third Circuit

all held that PASPA could not be evaded by creative

labeling, that the new law was in substance an

authorization forbidden by PASPA, and that PASPA

does not commandeer the states

The question presented 1s whether PASPA 1s a

valid exercise of Congress’ Commerce Clause power

ul

CORPORATE DISCLOSURE STATEMENT

Respondents are the National Collegiate Athletic

Association, the National Basketball Association, the

National Football League, the National Hockey

League, and the Office of the Commissioner of

Baseball. None of the respondents has a parent

company. No publicly held company owns 10% or

more of any respondent’s stock.

ll

TABLE OF CONTENTS

QUESTION PRESENTED .............cc00000...cccceeseceeseeeeee. i

CORPORATE DISCLOSURE STATEMENT............ ii

DN HT HE BI ooo csccescccccsascccccsscccsscsonee iv

sn suandoanssoustnnqcee 1

STATEMENT OF THE CASE. ................................... 3

A. The Professional and Amateur Sports

as anne cand bib seentoeminnonennnees 3

B. New Jersey's Relentless Efforts to

Authorize Sports Gambling ......................... 7

C. Proceedings Below...................ccccsscccesssscceees 11

REASONS FOR DENYING THE PETITION .....,... 17

|. Petitioners’ Repeatedly Rejected Argument

That PASPA Commandeers The States Does

Not Warrant This Court’s Review. ................... 19

Il. The Courts Below Correctly Concluded That

PASPA Does Not Commandeer The States...... 22

RE Ne 36

iv

TABLE OF AUTHORITIES

Cases

Aetna Health Inc. v. Davila,

BO UE I I nese csencecnscescosvcnveesscters

Am. Trucking Ass'‘ns v. City of Los Angeles,

Fe Oe Ss ee I neresessevcksnntccetsanmsiaseheennvens

Arizona v. United States,

BE ek, SE owns cnccsessnerentecovscesmesninsionee

Champion v. Ames,

Be Es, Ee CP cree ns ersenncenssensssncesevenssveseses

Christie v. Nat'l Collegiate Athletic Ass'n,

BEG GE, GIR FI GO a asveivcivcveisesciccacccsccscscsesce:

City of New York v. Beretta U.S.A. Corp.,

524 F.3d 384 (2d Cir. 2008).....................ceeeeees

Connecticut v. Physicians Health Servs. of

Conn., Inc.,

287 F.3d 110 (2d Cir. 2002) ..................0.0000000:.

Cutter v. Wilkinson,

423 F.3d 579 (6th Cir. 2005).....................c2c00

Dakota, Minn. & E. R.R. v. South Dakota,

362 F.3d 512 (8th Cir. 2004).....................0.

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council,

es Se ee itctiittitnninttinniinnensnioncdniwinraceve

Envtl. Def. Ctr., Inc. v. EPA,

344 F.3d 832 (9th Cir. 2003)......................008.

Flagler v. U.S. Att’y for Dist. of N.-/.,

No. 06-3699 (JAG), 2007 WL 2814657

co ee ee

Vv

Fraternal Order of Police v. United States,

Se ee ts Ge Bi arccscrccccccciccscccesiccssuns 20

Haywood v. Drown,

I 13

Hodel v. Va. Surface Mining

& Reclamation Ass’n,

GS te Ena yes: Semen tn Mave 32

Howlett ex rel. Howlett v. Rose,

aa TENSES RP Sel ae ee elk 13

In re Pet. of Casino Licensees for Approval

of a New Game, Rulemaking

& Authorization of a Test,

633 A.2d 1050

(N.J. Super. Ct. App. Div. 1993).................000..... 6, 7

Interactive Media Entm't

& Gaming Ass'n v. Holder,

No. 09-1301 (GEB), 2011 WL 802106

Sg | ERIS ae cS REE ese ene 19

Kennedy v. Allera,

612 F.3d 261 (4th Cir. 2010)................cccccccreresereees 27

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians of Wis. v. United States,

BET Bek GB CIE Gat. BODO oncccsccecccccccccccccsessces0s:- 27

Midrash Sephardi, Inc. v. Town of Surfside,

3966 F.3d 1214 (11th Cir. 2004)...............0c00ccccce000:. 27

Morales v. Trans World Airlines, Inc.,

I a cal licitdipninaiitioirrunvnen 24

Nat'l Collegiate Athletic Ass'n v. Christie,

926 F. Supp. 2d 551 (D.N.J. 2013) ....................0065. 8

vi

Nat'l Collegiate Athletic Ass’n

v. Governor of New Jersey,

730 F.3d 208 (3d Cir. 2013)................... 8, 17, 19, 28

New York v. United States,

ER a a ee passim

Nuclear Energy Inst., Inc. v. EPA,

ep Bo Bs Ee Rene 27

Office of the Comm’r of Basebal! v. Markell,

pe ee I a ccc ccncéecestnens 20

Okla. ex rel. Okla. Dep’t of Public Safety

v. United States,

161 F.3d 1266 (10th Cir. 1996).....................-........ 27

Printz v. United States,

I es i lemincsles 26, 32, 34, 35

Reno v. Condon,

eR ER See een 27

Rowe v. N.H. Motor Transp. Ass’n,

Doc mensemsnidadins 24

Strahan v. Coxe,

RR , eEAReD 27

Texas v. United States,

Be ee OE I Rs PE Pick ncceccacesecenvaccurdosececes 27

United States v. Bostic,

ee Or I te Ba iavnicckeisccccsccscccceccsceonese 20

Wyeth v. Levine,

Een erate ERE SS RI Rae ie Pe 25

Constitutional Provisions

n,n eis caceass 7

Statutes

rs a Sa 2 24

Vil

ne Na OS TIOESNECRAT 16 RRO I Soe the 4

I I in ot a edicnicaueas Gn

nn sw 33

IES TORTI A 8 3

Bi ne gS oe 24

AAS RRSASS SNPS eee ne Apac meee er ENE S

ERECT ERE SRE SIE ETI a 33

ae a Ne CM a IS PP Ele FEE eR eS Pe 5

I i asta e 5. 28. 33

SE ase os I eee ne ae 5 Rear tN 5

R.A RE aR eaarenner Ree 5, 6

SER RR EE Tae ae le a2 6

Fe ERR mene ear SADR ener Seem 6

lar rc GI I on canis 6

N.J. Stat. Ann. §5:12A-1, et seg. (West 2012)............ 7

a Ra a Ral eae Res aie aed aN 7

Fe RS, EC ee ernae 10, 11

Senate Bill 2250, 216th Leg., 1st Sess.

FRR Ee A NON tel in EE ech IO 9

Senate Bill 2460, 216th Leg., Ist Sess.

a ee Aalst ai tf Sanh PERE Eee ve aa 10

Other Authorities

ne I I IID oo iiccicesscnanscccvssseccepceccwsie 3

Bee Sy OU paces caccadodeashsonhiansetenede 3

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INTRODUCTION

This case involves petitioners’ second attempt to

convince this Court to review a novel constitutional

argument that has been rejected by every court to

consider it. The principal difference is that now

petitioners have added three more adverse decisions,

including one by an overwhelming majority of an en

banc court, to the tally of strikes against them.

There is no reason for this Court to reach a different

result this time around.

The Professional and Amateur Sports Protection

Act (“PASPA”) prohibits states from affirmatively

sponsoring, operating, advertising, promoting,

licensing, or authorizing sports gambling, and it

prohibits individual conduct pursuant to any such

state law. In PASPA’s 24 years, courts of appeals

have considered commandeering challenges to it only

twice—in this case, and in a nearly identical case just

a few years earlier involving New Jersey’s first effort

to authorize sports gambling in its casinos and

racetracks in open and acknowledged violation of

PASPA. Although petitioners lost that case every

step of the way, New Jersey was undeterred in its

efforts to bring legalized sports gambling to its

casinos and racetracks. A mere three days after this

Court denied petitioners’ first round of petitions

attempting to invalidate PASPA, the New Jersey

legislature passed a new law purporting to “repeal”

the state’s sports gambling prohibitions, but only at

casinos and racetracks—in other words, only at

handpicked venues for state-authorized and state-

licensed gambling.

2

The Governor vetoed that blatant attempt, as he

put it, “to circumvent the Third Circuit's ruling” and

“sidestep federal law.” But just two months later, the

Governor saw things differently, and signed the

nearly identical law that is the subject of this

lawsuit. Just like the legislation that the Governor

vetoed months earlier, that law purports to “partially

repeal” New Jersey’s sports gambling prohibition, but

only as applied to sports gambling that occurs at a

casino or racetrack, by individuals who are 21 or

older, and on particular sporting events.

The district court, a panel of the Third Circuit,

and the overwhelming majority of the en banc Third

Circuit all recognized that when New Jersey dictated

who could gamble on sports, where they could do it,

and on which events they could bet—all with the

avowed purpose of enabling sports gambling to take

place in New Jersey’s casinos and racetracks—the

state had “authorized” sports gambling in violation of

PASPA. All three courts also recognized that nothing

about that commonsense conclusion calls into

question the constitutionality of PASPA. Just like

the first time around, petitioners’ contrary

arguments are irreconcilable with this Court's

commandeering cases and would distort that narrow

doctrine beyond all recognition. In all events, there

is no question that petitioners’ constitutional

challenge remains novel and splitless; indeed, no

other state has ever brought such a challenge (and

only five states could be mustered to support New

Jersey's case as amici). Accordingly, in the unlikely

event that another state raises this argument and

then succeeds in producing a circuit split, there will

3

be time enough for this Court to consider it. The

Court should deny the petitions.

STATEMENT OF THE CASE

A. The Professional and Amateur Sports

Protection Act

Congress has long recognized a federai interest

in curtailing gambling on professional and amateur

sports. In the Interstate Wire Act of 1961, Congress

prohibited the interstate wire transmission “of bets

or wagers or information assisting in the placing of

bets or wagers on any sporting event or contest,”

exempting only states where the activity was legal.

18 U.S.C. §1084(a). In 1964, Congress made it a

federal crime to fix or attempt to fix any sports

contest. See id. §224. The House Report declared

such offenses “a challenge to an important aspect of

American life—honestly competitive sports.” H.R.

Rep. No. 88-1053, at 2 (1963). The Senate sponsor

likewise emphasized the need “to keep sports clean so

that the fans, and especially young people, can

continue to have complete confidence in the honesty

of the players and the contests.” 109 Cong. Rec.

2,016 (1963) (statement of Sen. Keating).

Congress also has long recognized a federal

interest in regulating gambling on a nationwide

basis. See, e.g., Champion v. Ames, 188 U.S. 321

(1903) (upholding federal law prohibiting trafficking

of lottery tickets as valid exercise of Congress’

commerce power). And although Congress has

accommodated limited state interests in legalized

gambling, it has not strayed from its view that sports

gambling is particularly damaging. When Congress

exempted state lotteries from federal criminal lottery

4

laws in 1975, for instance, it excluded state-

sponsored sports gambling from that exemption,

making clear that federal laws would continue to

apply to “placing or accepting of bets or wagers on

sporting events or contests” conducted by states. See

18 U.S.C. §1307(d).

In 1990, amid growing public dismay about the

harms of sports gambling, Congress’ began

considering federal legislation to stem the spread of

state-sponsored gambling on professional and

amateur sports. At the time, although only a handful

of states had authorized any form of sports gambling,

various states were considering authorizing state-

sponsored sports gambling to be conducted on river

boats or in off-track betting parlors and casinos;

others were debating introducing sports themes to

their lotteries.

After a robust debate and extensive hearings,

Congress concluded that although “sports gambling

offers a potential source of revenue,” “the risk to the

reputation of one of our Nation’s most popular

pastimes, professional and amateur sporting events,

is not worth it.” S. Rep. No. 102-248, at 7 (1991), as

reprinted in 1992 U.S.C.C.A.N. 3553, 3558; see also

id. at 5 (“Sports gambling threatens to change the

nature of sporting events from wholesome

entertainment for all ages to devices for gambling,”

“undermines public confidence in the character of

professional and amateur sports,” and “will promote

gambling among our Nation’s young people.”).

“Without Federal legislation,” Congress concluded,

“sports gambling is likely to ... develop an

irreversible momentum.” As an example, the report

5

singled out the “pressures in such places as New

Jersey ... to institute casino-style sports gambling.”

Id.

On October 28, 1992, the President signed into

law PASPA, which was approved by a vote of 88-5 in

the Senate and by voice vote in the House. See 28

U.S.C. §3701 et seq. PASPA makes it “unlawful for”

any “governmental entity” to “sponsor, operate,

advertise, promote, license, or authorize by law or

compact”:

a lottery, sweepstakes, or other betting,

gambling, or wagering scheme based ... on

one or more competitive games in which

amateur or professional athletes participate,

or are intended to participate, or on one or

more performances of such athletes in such

games.

Id. §3702. PASPA also makes it unlawful for “a

person to sponsor, operate, advertise, or promote,

pursuant to the law or compact of a government

entity,” any such sports gambling. Jd. §3702(2). In

addition to granting the attorney general authority to

enforce these prohibitions, PASPA gives professional

and amateur sports organizations a cause of action to

seek to enjoin a PASPA violation when the

organization’s own “competitive game is alleged to be

the basis of such violation.” Jd. §3703.

To accommodate the reliance interests of the

handful of states that already had authorized some

form of sports gambling, PASPA exempted from its

prohibitions authorized sports gambling that was in

operation before its enactment. Jd. §3704(a)(1)-(2).

PASPA also included a special exemption specifically

6

crafted for New Jersey, a state that flatly prohibited

sports gambling at the time but did have extensive

authorized and licensed gambling at casinos in

Atlantic City. Under this exemption, New Jersey

was given until “one year after [PASPA’s] effective

date” to “authorize[J” sports gambling to be

“conducted exclusively in casinos located in a

municipality” where “any commercial casino gaming

scheme was in operation ... throughout the 10-year

period [before PASPA became effective] pursuant to a

comprehensive system of State regulation authorized

by that State’s constitution and applicable solely to

such municipality.” Jd. §3704(a)(3). In other words,

PASPA gave New Jersey one year to authorize sports

gambling at casinos in Atlantic City.

New Jersey chose not to avail itself of PASPA’s

one-year window. In fact, the New Jersey legislature

declined even to vote on a joint resolution proposed

during that year that would have allowed a

referendum on a_ constitutional amendment

authorizing sports gambling at casinos. See Jn re Pet.

of Casino Licensees for Approval of a New Game,

Rulemaking & Authorization of a Test, 633 A.2d

1050, 1051 (N.J. Super. Ct. App. Div.), affd, 647 A.2d

454 (N.J. 1993) (per curiam). Instead, New Jersey

continued to flatly prohibit sports gambling for the

next two decades. See, e.g., N.J. Stat. Ann. §2a:40-1

(“All wagers, bets or stakes made to depend upon any

race or game, or upon any gaming by lot or chance, or

upon any lot, chance, casualty or unknown or

contingent event, shall be unlawful.”); N.J. Stat. Ann.

§§2c:37-2, 2c:37-9 (prohibiting promotion of gambling

unless authorized). The New Jersey Constitution

also continued to prohibit the legislature from

7

authorizing wagering on the results of any

professional, college, or amateur sports or athletic

event, excluding horse racing. See In re Casino

Licensees, 633 A.2d at 1054.

B. New Jersey’s Relentless Efforts to

Authorize Sports Gambling

In recent years, New Jersey has come to regret

its decision not to avail itself of the ability to

authorize sports gambling in its casinos back in 1993.

Accordingly, the state has undertaken a series of

efforts to get out from under PASPA’s prohibitions on

sponsoring, licensing, or authorizing sports gambling.

The state began by amending its own constitution,

effective December 8, 2011, to permit the legislature

“to authorize by Jaw wagering ... on the results of any

professional, college, or amateur sport or athletic

event.” N.J. Const. art. IV, §VII, 42D. The

amendment included a caveat “that wagering shall

not be permitted on a college sport or athletic event

that takes place in New Jersey or on a sport or

athletic event in which any New Jersey college team

participates regardless of where the event takes

place.” Jd. New Jersey then promptly enacted the

Sports Wagering Law, N.J. Stat. Ann. §5:12A-1, et

seq. (West 2012) (the “2012 Law”), which, in open and

acknowledged violation of PASPA, authorized

Atlantic City casinos and _ horse racetracks

throughout the state to engage in “the business of

accepting wagers on any sports event by any system

or method of wagering.” Jd. §§5:12A-1, 5:12A-2.

The National Collegiate Athletic Association,

National Basketball Association, National Football

League, National Hockey League, and Office of the

8

Commissioner of Baseball (collectively,

“respondents”) brought suit to enjoin this blatant

violation of PASPA. The state petitioners (joined by

the same parties that join them as petitioners here)

responded by conceding that the law violated PASPA

but arguing that PASPA is unconstitutional because

it, inter alia, commandeers the states. After carefully

considering that argument, both the district court

and the Third Circuit thoroughly rejected it and

enjoined New Jersey from enforcing the 2012 Law

and the regulations promulgated pursuant to it. See

Natl Collegiate Athletic Ass’n v. Christie, 926 F.

Supp. 2d 551 (D.N.J.), affd, Natl Collegiate Athletic

Ass'n v. Governor of New Jersey, 730 F.3d 208 (3d

Cir. 2013) (“Christie I’).

After the Third Circuit denied their petitions for

rehearing en banc, petitioners sought this Court’s

review. Even before the Court could act on those

petitions, however, the sponsors of the 2012 Law

announced that they had no intention of letting the

courts stand in the way of their plans to sanction

sports gambling at New Jersey’s casinos and

racetracks. As Senator Raymond Lesniak put it, no

matter what the outcome before this Court, “we will

push the envelope on sports betting. And we are not

going to be deterred.” JA101. To that end, the

senator vowed that if this Court left undisturbed the

lower court decisions invalidating the 2012 Law, he

would introduce new legislation that, once again,

would “allow casinos and racetracks to have sports

betting.” Id.

This Court denied the petitions on June 23, 2014.

See Christie v. Natl Collegiate Athletic Ass’n, 134

9

S. Ct. 2866 (2014). Three days later, the New Jersey

legislature made good on Senator Lesniak’s promise

and passed Senate Bill 2250, 216th Leg., 1st Sess.

(N.J. 2014) (“S2250”). S2250 purported to “repeal”

the state’s existing prohibitions on sports gambling,

but only “to the extent they would apply to such

wagering at casinos or gambling houses in Atlantic

City or at current running and harness racetracks in

this State.” $2250. In other words, it purported to

“repeal” the prohibitions only at state-licensed and

heavily regulated commercial gambling venues. As

Senator Lesniak, who sponsored the legislation,

explained, like the invalidated 2012 Law before it,

$2250 would “put [sports gambling] in the regulated

hands of existing casino and racetrack operators” in

New Jersey and “provide a safe and legal avenue for

[people] to bet on their favorite teams.” JA108.

On August 8, 2014, Governor Christie vetoed this

unabashed effort to undo the outcome of Christie I.

In a letter accompanying his veto, the Governor

described the legislation as a “novel attempt to

circumvent the Third Circuit's ruling” by, “[ijn

essence, partially deregulat[ing] betting at casinos

and racetracks in an attempt to sidestep federal law.”

JA65. Reiterating that “the rule of law is

sacrosanct,” and “binding on all Americans,” the

Governor refused to sign on to the legislature’s

transparent effort to “[i]gnor[e] federal law.” Id.

Instead, he admonished that the state must respect

the rule of law and the decisions of the courts. Id.

One month later, the Governor saw things

differently. On September 8, 2014, with the

Governor's support, New Jersey’s acting attorney

10

general issued a directive taking the remarkable

position that, notwithstanding the affirmed

injunction prohibiting the state defendants from

enforcing the 2012 Law in its entirety, the provisions

of that law stating that casinos and racetracks “may

operate a sports pool” continued to remain “in force

and effect.” JA118-21. This was so, according to the

state, because, notwithstanding their plain language,

these provisions did not “authorize” sports gambling,

but rather merely “repealed” existing prohibitions on

sports gambling at casinos and racetracks. JA120-

21. The directive thus instructed the state’s law

enforcement agencies that they should neither object

to nor seek to enjoin a sports pool operated by a

casino or racetrack, so long as that sports pool did not

permit wagering on college sporting events that take

place in New Jersey or in which a New Jersey college

team participates. JA121.

Although the state declared this directive

effective immediately, the state petitioners

simultaneously filed a motion asking the district

court to “clarify” or “modify” its injunction to conform

to their dubious new theory. Respondents opposed

the motion, arguing that the directive violated both

the injunction and PASPA. Before the court could

act on that motion, however, New Jersey changed

course once again. On October 17, 2014, Governor

Christie signed into law Senate Bill 2460, 216th Leg.,

lst Sess. (N.J. 2014 ) (the “2014 Law”), another

Senator Lesniak-sponsored piece of legislation, which

repealed the 2012 Law in its entirety, see N.J. Stat.

Ann. §5:12A-7, and the state petitioners then

withdrew their pending motion.

11

As one of its sponsors candidly acknowledged,

the 2014 Law is yet another attempt to achieve the

same thing as the invalidated 2012 Law—namely, to

“implement well regulated sports gaming” in New

Jersey's casinos and racetracks. JA434. The law

does so in the same manner as the vetoed $2250

would have done, i.e., by purporting to “repeal”

existing prohibitions on sports gambling, but only “to

the extent they apply or may be construed to apply at

a casino or gambling house operating in this State in

Atlantic City or a running or harness horse racetrack

in this State.” N.J. Stat. Ann. §5:12A-7. This

“partial repeal” applies, moreover, only to sports

gambling “by persons 21 years of age or older

situated at such location,” and only to gambling that

is not on “a collegiate sport contest or collegiate

athletic event that takes place in New Jersey or ... in

which any New Jersey college team participates

regardless of where the event takes place.” Jd. In

short, the 2014 Law, like the 2012 Law before it,

ensured that sports gambling would be permitted

only at certain locations, by certain persons, and on

some, but not all, sporting events.

C. Proceedings Below

1. Respondents promptly responded by filing this

new lawsuit asking the district court to enjoin the

state petitioners from giving effect to New Jersey's

latest effort to authorize licensed sports gambling at

its casinos and racetracks in violation of PASPA. In

addition to naming the same state petitioners named

in Christie I, respondents named as defendants the

New Jersey Thoroughbred Horsemen’s Association

(“NJTHA”), which operates Monmouth Park

12

Racetrack and announced within mere hours of the

2014 Law’s signing its intent to “begin offering and

accepting wagers on sporting contests and athletic

events” at the racetrack within the week, JA97, as

well as the New Jersey Sports and Exposition

Authority (“NJSEA”), the state instrumentality that

owns Monmouth Park (and other state-sponsored

gambling venues). The complaint sought to enjoin

the state petitioners and NJSEA from violating

section 3702(1) of PASPA pursuant to the 2014 Law

and to enjoin NJTHA from violating section 3702(2).

Petitioners refused to agree to hold off initiating

sports gambling, even for a few weeks, to give the

district court time to consider the legality of New

Jersey's latest actions, leaving respondents no choice

but to seek a temporary restraining order. The

district court granted that order after concluding that

respondents had established a reasonable likelihood

of success on the merits and irreparable harm.

JA303-09. After additional briefing, the court noticed

its intent to “consolidate Plaintiffs’ application for a

preliminary injunction with a decision on the merits

through summary judgment.” Pet.App.88a. The

United States, which supported respondents in the

first round of Christie litigation, then filed a

statement of interest agrecing with respondents that

the 2014 Law authorizes and licenses sports

gambling in violation of PASPA. JA541-61.

After holding a hearing, the district court

permanently enjoined the state petitioners from

“giving operation or effect” to the 2014 Law.

Pet.App.113a. The court concluded that “PASPA

preempts the type of partial repeal New Jersey is

13

attempting to accomplish in the 2014 Law.”

Pet.App.105a. Not only would “the 2014 Law ... have

the same primary effect of the 2012 Law,” but “by

allowing some, but not all, types of sports wagering

in New Jersey,” the court explained, the law

“necessarily results in sports wagering with the

State’s imprimatur, which goes against the very goal

of PASPA.” Pet.App.105a-07a. Although the court

acknowledged that New Jersey “carefully styled the

2014 Law as a repeal,” Pet.App.107a, the court

recognized that “the Supremacy Clause is not so

weak that it can be evaded by mere mention of [a|

word,’ nor can it ‘be evaded by formalism,’ which

would only ‘provide a roadmap for States wishing to

circumvent’ federal law.” Pet.App.106a (citation

omitted) (quoting Howlett ex rel. Howlett v. Rose, 496

U.S. 356, 382-83 (1990) & Haywood v. Drown, 556

U.S. 729, 742 & n.9 (2009)).!

2. Petitioners again appealed to the Third

Circuit, which held that the 2014 Law, like the 2012

Law before it, violated PASPA. Pet.App.60a. As the

court explained, “the 2014 Law authorizes sports

gambling by selectively dictating where sports

gambling may occur, who may place bets in such

gambling, and which athletic contests are

permissible subjects for such gambling.”

Pet.App.60a-6la. Allowing sports gambling in only

those limited circumstances “constitutes specific

1 Having enjoined the state petitioners from giving any

operation or effect to the 2014 Law, the court found no need to

resolve respondents’ claims against NJSEA and NJTHA.

Pet.App.110a.

14

permission and empowerment,” as “the 2014 Law

provides the authorization for conduct that is

otherwise clearly and completely legally prohibited.”

Pet.App.60a-6la. The court also noted that the 2014

Law was at particular odds with PASPA’s exception

allowing New Jersey to authorize sports gambling at

its casinos within one year of PASPA’s enactment.

Pet.App.62a. As the court noted, Congress could not

plausibly have intended to allow New Jersey to

accomplish through a dubiously labeled “partial

repeal” the exact same result that PASPA gave New

Jersey only one year to achieve. Pet.App.62a-63a.

Judge Fuentes, the author of Christie J, issued a

dissent in which he maintained that the 2014 Law

did not violate PASPA because a law styled as a

repeal—whether “partial” or otherwise—can never be

an “authorization.” Pet.App.67a.

3. The Third Circuit agreed to hear petitioners’

case en banc. In a 9-3 decision, the court once again

rejected petitioners argument that PASPA

unconstitutionally commandeers the states.

The en banc court began by agreeing with the

panel majority that the 2014 Law “authorized” sports

gambling in violation of PASPA. As the court

explained, “this is not a situation where there are no

laws governing sports gambling in New Jersey.”

Pet.App.12a. To the contrary, New Jersey flatly

prohibits sports gambling. It is the 2014 Law that

“provides the authorization for conduct that is

otherwise clearly and completely legally prohibited.”

Pet.App.13a. Moreover, the law also “authorizes

sports gambling by selectively dictating where sports

gambling may occur, who may place bets in such

15

gambling, and which athletic contests are

permissible subjects for such gambling.”

Pet.App.13a. By allowing “casinos and racetracks

and their patrons to engage, under enumerated

circumstances, in conduct that other businesses and

their patrons cannot,” the law grants “specific

permission and empowerment.” Pet.App.13a.

In reaching that conclusion, the court expressly

rejected petitioners’ argument that a repeal can

never constitute an authorization. Pet.App.l3a. At

the same time, however, the court also declined to

interpret PASPA as limiting a state’s options to

either complete prohibition or complete repeal.

Pet.App.13a. Instead, the court simply concluded

that “the presence of the word ‘repeal’ does not

prevent us from examining what the provision

actually does.” Pet.App.l4a. And “[w]hile artfully

couched in terms of a repealer, the 2014 Law

essentially provides that, notwithstanding any other

prohibition by law, casinos and racetracks shall

hereafter be permitted to have sports gambling. This

is an authorization.” Pet.App.14a.?

The court then rejected petitioners’ reprise of

their argument that PASPA _ unconstitutionally

commandeers the states. The court first reiterated,

as the panel held in Christie J, that the

2 Having concluded that the 2014 Law authorizes sports

gambling in violation of PASPA, the court declined to address

respondents’ (and the United States’) additional argument that,

by confining sports gambling to state-licensed gambling venues,

the law also licenses sports gambling in violation of PASPA.

Pet.App. 16a n.7.

16

commandeering doctrine has never been understood

to apply “where the states were not compelled to

enact laws or implement federal statutes or

regulatory programs.” Pet.App.19a. And after

examining this Court's preemption and

commandeering cases in exhaustive detail, the court

found PASPA “more akin to those laws upheld” by

this Court than to the two unusual laws struck down

in New York and Printz. Pet.App.22a.

The court then rejected petitioners’ argument

that “if the legislature cannot repeal New Jersey’s

prohibition as it attempted to do in the 2014 Law,

then it is required to affirmatively keep the

prohibition on the books, and PASPA

unconstitutionally commandeers’ the _ states.”

Pet.App.22a-23a. As the court explained, not only

does New Jersey still retain the option of complete

repeal, but the mere fact “[t]hat a specific partial

repeal which New Jersey chose to pursue in its 2014

Law is not valid under PASPA does not preclude the

possibility that other options may pass muster.”

Pet.App.24a. And while the court declined to accept

the proposition “that PASPA presents states with a

strict binary choice between total repeal and keeping

a complete ban on their books,” the court saw no need

to “articulate a line whereby a partial repeal of a

sports wagering ban amounts to an authorization

under PASPA” because “[i]t is sufficient” for this case

“that the 2014 Law overstepped it.” Pet.App.24a.

The court found it enough for constitutional

purposes, moreover, that PASPA “does not require ...

the states to lift a finger—they are not required to

pass laws, to take title to anything, to conduct

background checks, to expend any funds, or to in any

17

way enforce federal law.” Pet.App25a (quoting

Christie I, 730 F.3d at 231). “Put simply, PASPA

does not impose a coercive either-or requirement or

affirmative command.” 7d.

Judge Fuentes, joined by Judge Restrepo,

dissented once again, reasoning that a repeal can

never be treated as an “authorization” under PASPA.

Pet.App.27a-34a. Judge Vanaskie, the lone dissenter

in Christie I, also continued to dissent, reiterating his

view that PASPA effectively requires states to

maintain sports gambling prohibitions in violation of

the commandeering doctrine because there is no

workable “distinction between repeal and

authorization.” Pet.App.46a.

REASONS FOR DENYING THE PETITION

Petitioners’ commandeering challenge to PASPA

is as novel, splitless, and meritless as it was when

the Court declined to hear it just two years ago.

PASPA prohibits states from sponsoring, operating,

advertising, promoting, licensing, or authorizing

sports gambling, and it separately prohibits

individual conduct pursuant to any such state law.

This belt-and-suspenders approach of preempting

state laws that affirmatively authorize _ sports

gambling and prohibiting private conduct pursuant

to such laws is an unremarkable exercise of

Congress’ settled power to regulate commerce in

sports gambling. PASPA is nothing like the only two

statutes this Court has invalidated under the

commandeering doctrine, both of which compelled

states to enact or implement federal regulatory

schemes. Not surprisingly, then, every court to

consider New Jersey’s arguments has rejected them.

18

Petitioners nonetheless ask this Court for yet

another bite at the apple, insisting that PASPA must

commandeer the states b°sause it preempts New

Jersey's attempt to “partially repeal” its otherwise-

blanket sports gambling prohibitions—but only at

less than a dozen handpicked venues licensed for

state-authorized gambling. Far from evincing any

constitutional problem, PASPA’s preemption of that

novel law follows from a straightforward operation of

the principle that the substance of a state law, not its

label or form, controls the preemption analysis. As

the en banc court was at pains to make clear, the

conclusion that PASPA preempts this “repeal” hardly

means that PASPA necessarily preempts ail efforts

to repeal sports gambling prohibitions, or somehow

compels states to maintain sports gambling

prohibitions. Petitioners’ commandeering challenge

thus continues to rest, as it always has, on a

misunderstanding of PASPA. Simply put, a federal

law does not commandeer the states just because it

limits their policy options.

In all events, in the exceedingly unlikely event

that a court ever accepts the argument that PASPA

impermissibly commandeers the states, there will be

time enough to consider the question when the

circuits are split and an act of Congress has been

invalidated rather than upheld. Here, by contrast,

the criteria for this Court’s review are not remotely

satisfied. The Court thus should once again decline

to review this novel, splitless, and meritless

challenge.

19

I. Petitioners’ Repeatedly Rejected Argument

That PASPA Commandeers The States Does

Not Warrant This Court’s Review.

Petitioners do not suggest that there is any

division among the lower courts on whether PASPA

violates the commandeering doctrine. Nor could

they, as the novelty of their argument eliminates any

such possibility. The only other case to address

PASPA’s constitutionality was petitioners own

unsuccessful effort to invalidate the statute just a

few years ago. See Christie I, 730 F.3d at 216 (“This

is the first case addressing PASPA’s

constitutionality.”). Indeed, in its nearly 25-year

existence, PASPA has generated a grand total of four

court of appeals opinions—all four from the Third

Circuit, all four resolved against a state resisting the

statute’s application.

Three of those opinions (Christie I, the Christie II

panel opinion, and the Christie IT en banc opinion)

were generated by the same petitioners pressing the

same arguments as they press here. See id. (“Only

one Court of Appeals has decided a case under

PASPA—ours.”).2 The fourth opinion—and the only

PASPA case that did not involve New Jersey’s efforts

3 That is not to suggest that there is a plethora of district

court PASPA litigation. To respondents’ knowledge, the district

courts have produced only two PASPA decisions other than

those that led to the four Third Circuit opinions addressing the

statute. See Interactive Media Entm’tt & Gaming Ass’n v.

Holder, No. 09-1301 (GEB), 2011 WL 802106 (D.N.J. Mar. 7,

2011) (dismissing constitutional challenge to PASPA for lack of

standing); Flagler v. U.S. Att’y for Dist. of N.J., No. 06-3699

(JAG), 2007 WL 2814657 (D.N.J. Sept. 25, 2007) (same).

20

to legalize sports gambling at its casinos and

racetracks—did not involve a commandeering

challenge, but rather involved Delaware’s effort to

shoehorn a _ new initiative into PASPA’s

grandfathering provision, which fared no better than

New Jerseys repeated efforts to invalidate the

statute. See Office of the Comm’r of Baseball v.

Markell, 579 F.3d 293 (3d Cir. 2009) (rejecting

Delaware's arguments), cert. denied, 559 U.S. 1106

(2010). Accordingly, petitioners’ contention that

PASPA commandeers the states is a novel argument

about a rarely invoked statute that has been rejected

by every court to consider it.

Even widening the lens to commandeering cases

more generally, petitioners identify no conflict in

need of this Court’s resolution. That is because their

exceedingly expansive view of the commandeering

doctrine—namely, that the doctrine applies not just

when Congress forces states to act, but also when

Congress prohibits states from acting, or even

constrains their policymaking authority—has been

rejected by every court to consider it. See, e.g., City of

New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397

(2d Cir. 2008) (rejecting commandeering claim where

statute “impose[d] no affirmative duty of any kind”);

Fraternal Order of Police v. United States, 173 F.3d

898, 906-07 (D.C. Cir. 1999) (rejecting

commandeering claim where statute did “not force

state officials to do anything affirmative”); United

States v. Bostic, 168 F.3d 718, 724 (4th Cir. 1999)

(rejecting Tenth Amendment claim where statute

imposed no “affirmative obligation”). As this

unanimous body of case law reflects, petitioners’

revolutionary view of the commandeering doctrine is

21

utterly inconsistent with this Court’s cases and well-

settled preemption doctrines. See infra Part II. In

short, there is simply nothing about PASPA that

renders it comparable to the two unusual statutes

this Court held wunconstitutional in its

commandeering cases.

Nor is petitioners’ commandeering challenge to

PASPA exceptionally important or likely to recur. As

noted, PASPA has spawned just five cases and four

appellate opinions in its more than two decades on

the books—all within the Third Circuit. And in the

24 years since its enactment, states have expressed

little or no concern about PASPA, let alone about its

constitutionality. In the highly unlikely event that

an influx of constitutional challenges to PASPA

should materialize, there wil] be time enough for this

Court to resolve any commandeering question if and

when a conflict arises—and to do so with the benefit

of the views of more than one court of appeals and

perhaps in a state without New Jersey’s nearly

unique history concerning state-authorized gambling.

Indeed, petitioners’ complaint that the Third Circuit

did not opine on precisely what types of state laws

PASPA permits only underscores why further

percolation could assist this Court in the event

subsequent litigation materializes. NJ.Pet.31-34.

Finally, the mere fact that PASPA has frustrated

New Jersey's desire to authorize sports gambling is

not nearly enough to warrant this Court’s review.

Every case finding preemption involves a state law

trumped by a federal statute through operation of the

Supremacy Clause, yet this Court certainly does not

grant certiorari every time a state complains that

22

federal law has interfered with its policy choices.

This case thus does not come close to satisfying any

of this Court’s criteria for granting certiorari.

Il. The Courts Below Correctly Concluded

That PASPA Does Not Commandeer The

States.

The Court should also deny review because

petitioners’ oft-rejected commandeering argument is

not only splitless and novel, but meritless as well. As

the district court, a Third Circuit panel, and now

nine members of the 12-judge en banc court correctly

concluded, PASPA lacks the irreducible minimum of

any successful commandeering claim: It does not

compel states (or state officials) to do anything.

Instead, PASPA only prohibits states from licensing

or authorizing sports gambling, and prohibits private

parties from sponsoring, operating, advertising, or

promoting sports gambling pursuant to state law.

Accordingly, PASPA is a straightforward exercise of

Congress’ power to preempt the operation of state

laws that conflict with federal policy on matters

within Congress’ purview.

Attempting to resist that conclusion, petitioners

continue to insist (as they did in their last round of

cert petitions) that PASPA prohibits New Jersey

from repealing its sports gambling prohibitions, and

thus effectively compels states to maintain sports

gambling laws. PASPA does nothing of the sort. If

New Jersey wants to repeal its long-standing sports

gambling prohibitions entirely, as opposed to

channeling sports gambling to its casinos and

racetracks, it remains just as free to do so now as it

was when it last sought this Court’s review.

23

Moreover, the Third Circuit stressed that New Jersey

may also be able to repeal or modify aspects of those

prohibitions without repealing them entirely. What

PASPA prohibits is New Jersey’s blatant attempt to

circumvent the statute’s preemptive force by styling

as a “partial repeal” something that plainly

constitutes an authorization. Indeed, there is no

other way to understand a law that does not remove

a single piece of statutory text from the books, but

rather just purports to “partially repeal” otherwise-

operational sports gambling prohibitions by simply

declaring them inapplicable to certain people (those

21 or older), certain games (those that do not involve

a New Jersey college team or collegiate events taking

place in New Jersey) and certain venues (casinos and

racetracks licensed to offer state-authorized

gambling).

As the en banc court went out of its way to make

clear, that commonsense conclusion does not mean

that PASPA prohibits any and all state efforts to

repeal or alter existing sports gambling prohibitions.

It just means that PASPA, like every other federal

statute, looks to the substance of state laws, not just

at labels. And there is nothing remarkable—let

alone cert-worthy or constitutionally suspect—about

the Third Circuit’s conclusion that whatever else

PASPA may prohibit or permit, it does not allow a

state to use wordplay to channel sports gambling to

its favored venues for state-authorized gambling

while prohibiting it everywhere else.

1. Wrenching out of context a single line of

dictum from New York v. United States, 505 U.S. 144

(1992), petitioners insist that PASPA is

24

constitutionally infirm because it “regulate[s] state

governments’ regulation of interstate commerce,”

NJ.Pet.19 (quoting New York, 505 U.S. at 166), and

leaves insufficient “room” for states to “relax[] state-

law prohibitions on sports wagering as to particular

persons or places,” id. at 18. That novel theory of the

commandeering doctrine is wholly divorced from this

Court's cases and would have _ extraordinary

consequences for the federal-state balance. Scores of

federal statutes regulate states’ ability to regulate

commerce by explicitly precluding states from

enacting laws that conflict with federal policy.‘

4 See, e.g., Am. Trucking Ass'ns v. City of Los Angeles, 133 S.

Ct. 2096 (2013) (considering 49 U.S.C. §14501(c)(1), which

provides that a state “may not enact or enforce a law ... related

to a price, route, or service of any motor carrier ... with respect

to the transportation of property”); Rowe v. N.H. Motor Transp.

Ass'n, 552 U.S. 364, 368 (2008) (same); Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 378-79 (1992) (considering 49

U.S.C. App. §1305(a)(1), which precluded “States from

prohibiting allegedly deceptive airline fare advertisements

through enforcement of their general consumer protection

statutes”); 7 U.S.C. §136v(b) (a “State shall not impose or

continue in effect any requirements for labeling or packaging

[pesticides] in addition to or different from those required under

this subchapter”); 15 U.S.C. §1121(b) (‘[njo State or other

jurisdiction of the United States or any political subdivision or

any agency thereof may” impose certain requirements relating

to trademarks); 21 U.S.C. §360k(a) (“no State or political

subdivision of a State may establish or continue in effect with

respect to a device intended for human use any requirement”

that conflicts with federal requirements); 21 U.S.C. §678

(identifying requirements relating to food or drug inspection

that “may not be imposed by any State”); 46 U.S.C. §4306 (“a

State or political subdivision of a State may not establish,

continue in effect, or enforce a law or regulation establishing a

25

Neither this Court nor any other has suggested that

such laws raise commandeering concerns simply

because they remove some of the tools states could

otherwise use to “regulatie] private conduct within

their borders.” NJ.Pet.19. And certainly the fact

that Congress is explicit, rather than implicit, about

its intent to displace state law pursuant to the

Supremacy Clause is no strike against it. To the

contrary, this Court has confirmed that “[t]here is no

doubt that Congress may withdraw specified powers

from the States by enacting a statute containing an

express preemption provision.” Arizona v. United

States, 132 S. Ct. 2492, 2500-01 (2012); cf. Wyeth v.

Levine, 555 U.S. 555, 587 (2009) (Thomas, J.,

concurring) (questioning implied preemption doctrine

while reaffirming Congress’ ability to expressly

preempt state law).

Commandeering concerns arise only when,

rather than withdraw powers from states (whether

explicitly or implicitly), Congress commandeers

states by imposing affirmative duties on them that

recreational vessel or associated equipment performance or

other safety standard or imposing a requirement for associated

equipment”); 49 U.S.C. §11501(b) (“a State, subdivision of a

State, or authority acting for a State or subdivision of a State

may not” impose certain taxes on rail transportation property);

49 U.S.C. §31111(b) (‘a State may not prescribe or enforce a

regulation of commerce” that imposes length requirements on

certain vehicles); 49 U.S.C. §40116(b) (“a State, a political

subdivision of a State, and any person that has purchased or

leased an airport under ... this title may not levy or collect a

tax, fee, head charge, or other charge on” air commerce or

transportation).

26

force states to do Congress’ bidding. This Court's

commandeering cases (not to mention the very name

of the doctrine) make that crystal clear. The fatal

flaw in the provision of the Radioactive Waste Policy

Amendments Act at issue in New York was that it

required states either to enact particular legislation

or take title to radioactive waste. See New York, 505

U.S. at 175. Either option required affirmative

action by the state, and, thus, neither option was

constitutionally permissible. Jd. at 177. The

provision of the Brady Handgun Violence Protection

Act at issue in Printz v. United States, 521 U.S. 898

(1997), suffered from a variant of the same basic

defect: By requiring state and local law enforcement

officers to conduct federally mandated background

checks for handgun sales, it unconstitutionally

conscripted state law enforcement officers into

federal service. See id. at 902-05.

As these cases reflect, the commandeering

doctrine embodies two related—and _ limited—

principles: “The Federal Government may neither

issue directives requiring the States to address

particular problems,” as in New York, “nor command

the States’ officers, or those of their political

subdivisions, to administer or enforce a federal

regulatory program,” as in Printz. Id. at 935.

Nothing about those two principles imperils the

ordinary operation of the Supremacy Clause. To the

contrary, Printz went out of its way to distinguish the

rare statute that poses a commandeering problem

from the multitude of federal statutes that simply

preempt state laws that conflict with federal policy.

See Printz, 521 U.S. at 913 (noting the “duty owed to

the National Government, on the part of all state

27

officials, to enact, enforce, and interpret state law in

such fashion as not to obstruct the operation of

federal law, and the attendant reality that all state

actions constituting such obstruction, even legislative

Acts, are ipso facto invalid”).

Thus, while it is easy and tempting to take a few

sentences from New York and Printz out of context,

both this Court and the courts of appeals consistently

have rejected “commandeering” challenges and

reaffirmed that New York and Printz do not call into

question large swaths of the federal code. See, e.g.,

Reno v. Condon, 528 U.S. 141 (2000).5 Unless it is to

swallow preemption whole, the commandeering

doctrine simply cannot be understood to invalidate

laws that neither “require [a state] to enact any laws

or regulations” nor “require state officials to assist in

the enforcement of federal statutes.” Jd. at 150-51.

2. As the Third Circuit has now correctly

recognized on three separate occasions, PASPA runs

5 See also, e.g., Strahan v. Coxe, 127 F.3d 155, 167-70 (ist Cir.

1997); Connecticut v. Physicians Health Servs. of Conn., Inc.,

287 F.3d 110, 122 (2d Cir. 2002); Kennedy v. Allera, 612 F.3d

261, 268-70 (4th Cir. 2010); Texas v. United States, 106 F.3d

661, 665-66 (5th Cir. 1997); Cutter v. Wilkinson, 423 F.3d 579,

588-90 (6th Cir. 2005); Lac Courte Oreilles Band of Lake

Superior Chippewa Indians of Wis. v. United States, 367 F.3d

650, 662-65 (7th Cir. 2004); Dakota, Minn. & E. R.R. v. South

Dakota, 362 F.3d 512, 517-18 (8th Cir. 2004); Envtl. Def. Ctr.,

Inc. v. EPA, 344 F.3d 832, 844-48 (9th Cir. 2003); Okla. ex rel.

Okla. Dep't of Public Safety v. United States, 161 F.3d 1266,

1271-73 (10th Cir. 1998); Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214, 1242-43 (11th Cir. 2004); Nuclear

Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1306-07 (D.C. Cir.

2004).

28

afoul of neither of the principles the commandeering

doctrine embodies. PASPA “does not require or

coerce the states to lift a finger—they are not

required to pass laws, to take title to anything, to

conduct background checks, to expend any funds, or

to in any way enforce federal law.” Pet.App.25a

(quoting Christie I, 730 F.3d at 231). Indeed, New

Jersey complied with PASPA for two decades without

enacting or implementing anything. Instead, PASPA

only prohibits states from enacting laws that

interfere with federal objectives by, inter alia,

licensing or authorizing sports gambling. PASPA’s

effect on state law is thus nothing like the effect of

the statutes in New York and Printz; instead, it has

the same effect as the countless federal statutes that

displace state law through the ordinary operation of

the Supremacy Clause.

According to petitioners, PASPA does not confine

itself to prohibiting states from authorizing sports

gambling, but rather reaches more broadly to

prohibit states from repealing sports gambling

prohibitions, thereby effectively compelling states to

maintain and enforce laws prohibiting § sports

gambling. Even setting aside the bedrock rule that

statutes should be read to avoid constitutional

questions, not to create them, see, e.g., Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 575 (1988), PASPA

plainly does no such thing. PASPA preempts only

those state laws that “sponsor, operate, advertise,

promote, license, or authorize” sports gambling. 28

U.S.C. §3702(1). And PASPA preempts the two

sports wagering laws that New Jersey has enacted

29

because both authorized and _ licensed _ sports

gambling.

Petitioners resist that conclusion, insisting that

the 2014 Law sought only to “repeal” existing

prohibitions, not to “authorize” sports gambling. As

the courts below correctly recognized, that argument

is mere semantics. To be sure, New Jersey styled the

2014 Law as a “partial repeal”—-in an acknowledged

effort to try to get around PASPA and the Third

Circuit’s decision affirming its constitutionality. But

in this context as in all others, states may not

“elevate form over substance ... to evade” federal

preemption. Aetna Health Inc. v. Davila, 542 U.S.

200, 214-15 (2004). And simply labeling a law a

“repeal” does not end the analysis. Indeed, Governor

Christie himself recognized as much when he vetoed

$2250, acknowledging that using a _ purported

“repeal” to “partially deregulat[e] betting’ only at

certain locations by certain people on certain events

is an impermissible “attempt to sidestep federal law.”

JA65.

Yet that is precisely what the 2014 Law did. The

law did not actually “repeal” a single one of New

Jerseys comprehensive prohibitions on _ sports

wagering; indeed, it did not even eliminate a single

word from those laws. It just declared those

prohibitions inapplicable to the places, persons, and

sporting events of the state’s choosing. The courts

below correctly found that “partial repeal” law

preempted precisely because there is a meaningful

and principled difference between a true repeal and

an authorization. And labels notwithstanding, the

2014 Law cannot be understood as anything other

30

than an authorization for sports gambling to occur at

the state’s favored venues for state-authorized

gambling. Indeed, by affirmatively channeling sports

gambling exclusively to _ state-licensed gambling

venues, the law not only authorized sports gambling,

but effectively licensed it as well.

That does not mean, as petitioners would have it,

that New Jersey is now compelled to “maintain state-

law prohibitions” on sports gambling. NJ.Pet.3. It

just means that the particular law through which

New Jersey attempted to alter the scope of those

prohibitions (without actually repealing them in any

true sense) does not comport with PASPA. As the en

banc court was at pains to make clear, New Jersey is

still free to pass a true repeal that actually

eliminates its sports gambling prohibitions entirely,

or alters them in other respects that do not run afoul

of PASPA. Pet.App.24a. Moreover, whether and to

what degree to enforce its sports gambling

prohibitions, and what penalties to attach to them,

remain questions for New Jersey.‘ Petitioners are

therefore simply wrong to contend that PASPA forces

New Jersey to do anything.

8 To the extent petitioners suggest that the district court's

injunction somehow compels New Jersey to maintain or enforce

its existing sports gambling prohibitions, that is incorrect. The

injunction simply enjoins the _ state petitioners from

implementing the 2014 Law. Pet.App.114a-l6a. If that means

the state petitioners are now obligated to enforce the state’s

still-extant sports gambling prohibitions, that is a consequence

of state law, and the legislature’s decision to keep those

prohibitions on the books, not of anything in the district court's

order.

31

Petitioners are thus reduced to arguing that

PASPA runs afoul of the commandeering doctrine not

because it compels states to enact or enforce federal

policies, but because it fails to “afford[] sufficient

room’ for States to determine how they will regulate

sports wagering.” NJ.Pet.22-23. As they put it, if

New Jersey cannot “selectively grant[] permission to

certain entities to engage in sports wagering,” then

“[w]hat options does this leave for New Jersey to

stanch black market wagering throughout the

State?” NJ.Pet.23. That reveals the fundamental

problem with their argument, as their real issue with

PASPA is not that it forces the state to prohibit

sports gambling. Indeed, if all New Jersey wanted

were to “stanch black market wagering,” then it is

hard to see why it would have any problem with a

law that plainly leaves the state free to actually

enforce or strengthen the blanket prohibitions that it

already has in place. The problem is, New Jersey's

preferred solution to its “black market” sports

gambling problem is not to eliminate that market,

but rather to affirmatively embrace sports gambling,

and channel it to its casinos and racetracks. And

that is precisely what Congress plainly sought to

prohibit in PASPA. Indeed, Congress could not have

been clearer that a law opening up Atlantic City

casinos to sports gambling violated PASPA, which is

why New Jersey was given an exemption for a one-

year window, and only a one-year window, to adopt

such a law.

Tellingly, petitioners cite no authority for the

novel proposition that Congress runs afoul of the

commandeering doctrine any time it takes a state's

preferred policy option off the table. That is because

32

the Constitution has never been understood to

require the federal government to leave states with

“sufficient room” to override Congress’ policy

preferences in areas that concededly fall within

Congress’ enumerated powers. To the contrary,

constraining the scope of states’ policymaking

authority is a natural consequence of countless

preemption schemes.

For instance, a state does not have the option of

“partially repealing” or “otherwise modulat[ing],”

NJ.Pet.3, federal standards that it has agreed to

adopt and enforce on the federal government’s behalf.

See, e.g., Hodel v. Va. Surface Mining & Reclamation

Ass'n, 452 U.S. 264 (1981). But that narrowing of

options hardly invalidates putting a state to the

choice of enforcing the federal standard or going it

alone. Rather, Congress’ ability to constrain a state’s

regulatory options is inherent in the Supremacy

Clause, which creates a “duty owed to the National

Government, on the part of all state officials, to

enact, enforce, and interpret state law in such

fashion as not to obstruct the operation of federal

law, and the attendant reality that all state actions

constituting such obstruction, even legislative Acts,

are ipso facto invalid.” Printz, 521 U.S. at 913; see

also New York, 505 U.S. at 167-68. PASPA is no

different from the scores of federal statutes, explicitly

distinguished by Printz, that prevent states from

enacting or enforcing laws that conflict with federal

policy. Petitioners’ novel contention that New Jersey

is constitutionally entitled to “room to make [its] own

policy,” NJ.Pet.18, would put the commandeering

doctrine on a collision course with Article I, Section 8

of the Constitution.

33

3. Petitioners fare no better in arguing that

PASPA diminishes the accountability of state or

federal elected officials. NJ.Pet.29-31. In fact,

federal responsibility for PASPA is clear. Not only

does the statute operate on states; it also regulates

private conduct directly by “prohibit{ing] individuals

from engaging in a sports gambling scheme ‘pursuant

to’ state law.” Pet.App.166a (quoting 28 U.S.C.

§3702(2)). And PASPA is just one small piece of

Congress’ broader regulation of gambling, which

includes numerous prohibitions on private conduct.

See, eg., 18 U.S.C. §§224, 1084, 1301, 1307(d);

NJ.App.167a. As those provisions reflect, PASPA

does not even force states to shoulder the costs of

policing illegal sports gambling. Instead, federal law

independently prohibits sports gambling that is not

authorized by state law, meaning the federal

government has already taken on the obligation of

expending its own resources to prevent sports

gambling.

Petitioners’ attempt to portray PASPA as some

sort of stand-alone provision that is the beginning

and end of Congress’ concern with sports gambling

therefore distorts and ignores reality. In fact,

PASPA is part and parcel of Congress’ efforts to

regulate private conduct directly, which includes

expending federal resources to enforce /ederal

prohibitions on gambling activities (including sports

gambling activities) that are not authorized by state

law. To be sure, those laws reflect Congress’ choice

to assist states in their efforts to prevent sports and

other gambling, rather than to preempt the field

34

entirely. But that only underscores Congress’ desire

to respect, not override, federalism concerns.’

Moreover, as noted, precisely because PASPA

does not operate solely on states, it would prohibit

operation of New Jersey’s sports gambling scheme

even without its preemption provision, as a casino or

racetrack that attempted to operate sports gambling

pursuant to the 2014 Law would violate section

3702(2) of PASPA wholly independent from New

Jerseys violation of section 3702(1). That

underscores just how radical petitioners’ position

really is, as they seem to suggest that the

commandeering doctrine invalidates not only laws

that limit how states may regulate private conduct,

but also laws that regulate private conduct directly.

Surely that cannot be what this Court envisioned

when it concluded that “the Federal Government

may not compel the States to implement, by

legislation or executive action, federal regulatory

programs.” Printz, 521 U.S. at 925.

Nor can New York and Printz plausibly be read

to suggest that the accountability concerns they

discussed give rise to a commandeering problem

every time “state officials cannot regulate in

7 PASPA also is part and parcel of Congress’ efforts to protect

respondents interstate activities. Congress viewed

respondents sporting events as important interstule activities

well worth protecting and viewed the spread of state-sponsored

gambling as « threat to these games. Prohibiting atate laws

that interfere with federal olyectives is, of course, the classic

justification for federal laws that unobjectionably displace state

laws pursuant to the Supremacy Clause.

35

accordance with the views of the local electorate.”

NJ.Pet.30 (quoting New York, 505 U.S. at 169);

NJTHA.Pet.8-13. That is always the case when

Congress preempts state law, which is why the very

sentence of New York from which New Jersey quotes

concludes with the critical caveat “in matters not pre-

empted by federal regulation.” 505 U.S. at 169

(emphasis added). As the decision goes on to explain,

when, as here, Congress explicitly preempts state

law, “it is the Federal Government that makes the

decision in full view of the public, and it will be

federal officials that suffer the consequences if the

decision turns out to be detrimental or unpopular.”

Id. at 168. The only accountability problem with

which the commandeering doctrine is concerned

arises “where the Federal Government compels

States to regulate,” thereby creating the appearance

that state officials are responsible for policies that

Congress forced them to enact. Jd.

Clearly, no such problem exists here. Precisely

because New Jersey stood in full compliance with

PASPA for two decades without enacting or

implementing anything, PASPA did not put New

Jersey in a situation where it was “forced to absorb

the costs of implementing a federal program” or

“takfe] the blame for [a federal program’s]

burdensomeness and for its defects.” Printz, 521 U.S.

at 930. And to the extent the citizens of New Jersey

are frustrated by their inability to engage in state-

authorized sports gambling at casinos and

racetracks, there is no question that PASPA, not New

Jersey, is to blame. If there were any confusion on

that score, this now four-years-running litigation has

surely removed it. And if New Jersey wants to

36

change that dynamic, thén it (along with the handful

of states supporting it as amici) remains free to

pursue the ordinary course of trying to persuade

Congress to alter or repeal PASPA. But this Court

should reject, just as it did the last time around, New

Jersey's attempt to short-circuit that political process

through an_ ill-conceived expansion of the

commandeering doctrine.

CONCLUSION

For the foregoing reasons, this Court should

deny the petition for certiorari.

Respectfully submitted,

JEFFREY A. MISHKIN PAUL D. CLEMENT

ANTHONY J. DREYER Counsel of Record

SKADDEN ARPS ERIN EK. MURPHY

SLATE MEAGHER EDMUND G. LACOUR JR.

& FLOM LLP KIRKLAND & ELLIS LLP

Four Times Square 655 Fifteenth Street. NW

New York, NY 10036 Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Respondents

December 14, 2016