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

“Supreme Court, U.S.

FILED

NOV 14 201

No. 16-476 OFFICE OF THE CLERK

In the Supreme Court of the United States

-_ Ceo — a

GOVERNOR CHRISTOPHER J. CHRISTIE, et a/.,

Petitioners,

¥..

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

BRIEF OF AMICT CURIAE STATES OF

WEST VIRGINIA, ARIZONA, LOUISIANA,

MISSISSIPPI, AND WISCONSIN

IN SUPPORT OF PETITIONERS

a

PATRICK MORRISEY ELBERT LIN

Attorney General Solicitor General

Counsel of Record

OFFICE OF THE THOMAS M. JOHNSON, JR.

ATTORNEY GENERAL. Deputy Attorney Genera!

State Capitol EDWARD M. WENGER

Building 1, Room E-26 General Counsel

Charleston, WV 25305

Elbert.Lin@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed at end]

0 Renee af Can ciee

QUESTION PRESENTED

Federal law does not directly prohibit sports

wagering where it occurs in a State in which it is

legal. But the Professional and Amateur Sports

Protection Act ““PASPA”) makes it unlawful for a

State, other than Nevada or several other exempted

States, to “license” or “authorize” sports wagering. 28

U.S.C. § 3702. The en banc Third Circuit, over two

dissents, has imterpreted this provision § as

prohibiting the States from modifying their laws to

repeal existing prohibitions on sports wagering.

The question presented is:

Does PASPA’s prohibition on States repealing

existing laws banning sports wagering commandeer

the regulatory authority of the States, in violation of

the Tenth Amendment?

il

TABLE OF CONTENTS

QUESTION PRESENTED. ......0...0-..-ccesccssseceeseeeceeeeees

TABLE OF CONTENTS ........ccccc00cc0e0eeeeseeees eo ii

TABLE OF AUTHORITTES................--c:sc2cecsceceseeeeee- iv

SUMMARY OF ARGUMENT AND INTEREST

OW ABIICT CUPTRIA TE <a osccu-cssesococsesescennsosesceseosss. I

REASONS FOR GRANTING THE PETITION ......... 3

I. THE THIRD CIRCUITS DECISION

CONFLICTS WITH THIS COURT'S

PRECEDENT CONCERNING FEDERAL-

ee MeN II oo sietendesdeientoceseiccsererercesdorsedys 6

A. The Third Circuit’s View of Preemption

Conflicts With This Court’s Case Law........... 6

B. The Third Circuit Decision Also Conflicts

With This Court’s Anti-Commandeering

BEE MRE a Re ee 12

1. The Political Accountability Prin-

ciples At The Core Of This Court’s

Anti-Commandeering Cases Do Not

Accord With The Third Circuit’s

“Coercive Binary Choice” Test............... 13

2. Prohibiting States From Repealing

Their Own Laws Raises Particular

Concerns Under The Tenth

Fe cei screen cee tereiniiacewnvasinaahdies 17

Il. THE THIRD CIRCUITS DECISION

HARMS STATES AND OUR SYSTEM OF

SPERM HET METIS Bs osovesosecennsescrsacssinsescernsecss 23

I NII ite da cectdtertcivarnesslbediteeicds tehcniniekciecneitpsh 26

iii

TABLE OF AUTHORITIES

Cases

Aloha Airlines, Inc. v. Dir. of Taxation of Haw.,

SK ONL A SR eee Se OES eee ea 8

Am. Airlines, Inc. v. Wolens,

a eas 8

Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

FA i Be ines vscniccsesereversanenered ens 7

Arizona v. United States,

of ee Qh fC... omen Te

Bates v. Dow Agrosciences, L.L.C.,

es ee hic ceseiespnicecccaveesccceve sivienscbemeniens 7

CSX Transp., Inc. v. Easterwood,

a vcsiconcencsanaeicineonebncosiantianeveneeess 38

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

ee Oe ia hincceknvitcenesesconpivesscacenons 7

FERC v. Mississippi,

OT es hihi sccescerecevasscncceniopenecs 10, 11

Florida Lime & Avocado Growers, ine. v. Paul,

Ce a alanedied T

Ceier vy. Am. Honda Motor Co., Inc.,

Be 0s i, Ce ID vceires ccvcncrssenccecestese sccabheatecg bests s

Gonzalez v. Raich,

RN a a oo alia 25

Gregory v. Ashcroft,

ee I as Te

Hillman v. Maretta,

I Te Pe I a ose sco arecdeessaresvusdnesvousens 7

lV

Hines v. Davidowi1tz,

Be NED aossick ssa vpdancss chussacussbsdeesinceslesscdeccs 7

Hodel v. Virginia Surface Min. & Reclamation

Ass’n, Inc., 452 U.S. 264 (1981)....0.0.......eeeeeee 6, 10

Kennedy v. Plan Adm’r for DuPont Savy. and Inv.

Plan, 555 U.S. 285 (2009) ....................cccc.eceeee ee eeee 7

Lorillard Tobacco Co. v. Reilly,

coco cssscdaunsnddncdendueewamess 8

Medtronic, Jnc. v. Lohr,

I a caacodenntocescosbiuascbvncocdvescsonsen

Nat’] Meat Ass’n v. Harris,

a cies vasuapatinienocbaes 7

New State Ice Co. v. Liebmann,

TE Rs nos cc Vevddauewasovovcvasesece 25

New York v. United States,

Ue WG a iseeceicnccsiesisssscescesscesen passim

Nrxon v. Mo. Mun. League,

Be eo cn a cestdooscciadunacebaamarcwnecnes $3

R.J. Reynolds Tobacco Co. v. Durham Cuty.,

ET ee BI riven ee bandage cicsseessouzsseusasesss 7

Shaw v. Delta Air Lines, Inc.,

I as cadvanswsnsanmuail “

Sprietsma v. Mercury Marine,

nT sR ca 8, 9

US. Term Limits, Inc. v. Thornton,

sree co sea dS cecsicdnssainics ae

Statutes

a es cis vs cc thckes sbeucavncdbndnicnntasdicees coy 1

Other Authorities

“Top town cricr to be crowned as Hebden Bridge

hits 500,” BBC, http://news.bbc.co.uk/

local/bradford/hi/people_and_places/arts_and

_culture/newsid_8931000/8931369.stm (last

updated Aug. 20, 2010)......... . saskonieebebaaesesueeaine

Sophocles, Antigone (c. 441 B.C.), reprinted in

Sophocles: The Complete Plays (Paul Roche

transl., Signet Classics 2001) .............ccccccceeeeeeee

Supreme Court Rule 37.2(Q) ........0....sccccssseseessnnensees

The Federalist No. 16 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ....0.........c:ccecccceeeeeeee

The Federalist No. 51 (James Madison)..................

US. GComek, wrt. Vi, Gb. 2 sesecicccccscenssenaae eee

William Shakespeare, Antony and Cleopatra (c.

1606), reprinted in The Unabridged William

Shakespeare (William George Clark &

William Aldis Wright eds. 1989) ..............-.--.....

SUMMARY OF ARGUMENT AND

INTEREST OF AMICI CURIAE’

Certiorari is warranted because the Third

Circuit’s split en bane decision below conflicts with

two lines of this Court’s precedent concerning

federal-state relations. In upholding the Professional

and Amateur Sports Protection Act (““PASPA”), 28

U.S.C. § 3701 et seqg., the Third Circuit radically

expanded the doctrine of federal preemption by

holding that Congress may forbid the States from

repealing their existing laws without affirmatively

setting forth a federal regulatory or deregulatory

scheme. In addition, the Third Circuit disregarded

this Court’s anti-commandeering jurisprudence by

requiring state legislators to maintain, and state

executive officials to enforce, laws that would

otherwise have been repealed.

Amici curiae are States that submit this brief in

support of Petitioners because the Third Circuit's

decision fundamentally alters the nature of federal-

state relations. The concern of Amici States—the

States of West Virginia, Arizona, Louisiana,

Mississippi, and Wisconsin-—is not what Congress

regulates but how it does so. Kven where it has

Article I authority to act, Congress may not force the

States to act as the vehicle for implementing federal!

policy and thereby shift to the States political

accountability for its actions. Such coercion is

unconstitutional commandeering and not lawful

preemption under the Supremacy Clause. This

* Pursuant to Supreme Court Rule 37.2(a), amici have timely

notified counsel] of record of their intent to file this brief in

support of Petitioners.

coercion also violates a core principle of residual

sovereignty protected by the Tenth Amendment—the

right of the States to repeal laws and return liberty

to the People in areas where Congress has chosen

not to regulate.

Importantly, Amict States take no position on

the wisdom of the state and federal sports wagering

laws in this case. Some States may support the

expansion of sports betting, while others oppose it.

Amici States file this brief because they agree that

the Third Circuit’s decision raises scrious federalism

concerns for all States.

REASONS FOR GRANTING THE PETITION

This Court has long explained that our system of

dual sovereignty limits Congress’s ability to directly

regulate a State’s regulation. It may “encourage a

State to regulate in a particular way” by “holdling!

out incentives to the States as a method of

influencing a State’s policy choices.” New York v.

United States, 505 U.S. 144, 166 (1992). Moreover,

where Congress seeks “to regulate matters directly’

through an_ affirmative federal regime, the

Supremacy Clause authorizes “pre-emptlion) lof]

contrary state regulation.” 7d. at 178. But Congress

may not simply “regulate state governments’

regulation,” jd. at 166, as “the Constitution has never

been understood to confer upon Congress the ability

to require the States to govern according to

Congress’s instructions,” id. at 162.

The petition should be granted because the Third

Circuit has twice failed to respect these hmuits on

federal power.

In 2013, a divided Third Circuit panel

acknowledged that interpreting PASPA to prohibit

States from repealing existing laws would raise “a

series of constitutional problems.” Pet. App. 160a.

But the court purported to avoid those problems by

construing PASPA as not “prohibit |ing]” a State from

“repealing its ban on sports wagering.” /d. at 158a,

160a. Rather, the court reasoned, States enjoyed

“much room ... to make their own policy,” id. at

161a, because they only needed to “enforce the laws

they choose to maintain,” id. at 163a, and avoid

affirmative acts such as issuing gambling licenses,

id. at 158a. Apart from these proscriptions, States

could lawfully allow sports betting simply by

removing existing laws from the books. See id. at

158a, 16la, 163a.

The State of West Virginia previously explained

to this Court that this “affirmative/negative

command distinction,” id. at 37a, 157a, could not

withstand scrutiny under well-established anti-

commandeering principles. See No. 13-967, Amicus

Br. of West Va. et al, at 13-23 (Mar. 17, 2014).

Among other reasons, this Court’s case law prohibits

Congress from using the machinery of state

government to carry out federal policy, regardless of

the form that state action takes. /d. at 14-19.

Furthermore, it would often be difficult in practice to

distinguish between an impermissible authorization

and a permissible repeal. /d. at 20-21.

Perhaps recognizing these difficulties, the en

banc Third Circuit has now rejected as “unnecessary

dicta” its prior distinction between a “repeal” and an

“authorization.” Pet. App. at 23a. But the en banc

court proceeded to compound the earlier panel's

misunderstanding of the Tenth Amendment by

further restricting the room in which States have to

modify existing legislation on sports wagering.

Over two dissents, including one by the author of

the 2013 pancl decision, the en banc court held that

a State’s “selective repeal of certain prohibitions

amounts to authorization under PASPA.” Ibid.

Despite now interpreting PASPA to prohibit state

repeals of existing wagering laws, the court

concluded that its view of PASPA’s constitutionality

“remains unshaken” because States were still

afforded “sufficient room under PASPA to craft their

uo

own policies.” bid. Specifically, the court suggested

that federal prohibitions on state regulation were

lawful so Jong as they did not subject the States to a

“coercive binary choice,” that is, require States to

“either maintain a complete prohibition on sports

wagering or wholly repeal state prohibitions.” /d. at

17a-l8a, 23a. The court declined, however, to

“articulate a line” as to what additional state actions

other than total repeal of all gaming laws would be

permissible under its new reading of PASPA and the

Tenth Amendment. /d. at 24a.

As shown below, the Third Circuit’s decision

dramatically departs from this Court’s jurisprudence

on both preemption and anti-commandeering. /irst,

this Court’s preemption cases make clear that if

Congress enacts an affirmative federal regime, it

may also enact an express preemption clause to

protect that regime from contrary action by the

States. But this Court has never recognized that the

Supremacy Clause permits Congress to merely

prohibit States from repealing their laws when there

is no affirmative federal regime to protect. Second,

the Third Circuit’s decision violates core antr

commandeering principles protected by the Tenth

Amendment by prohibiting States from repealing

existing law and returning residual sovereignty to

the People in areas where Congress has expressly

chosen not to legislate.

If permitted to stand, the Third Circuit’s decision

threatens the constitutional balance of power

between States and the federal government. This

Court’s review is needed to reinforce the proper linc

6

between permissible preemption and impermissible

commandccring.

I. THE THIRD CIRCUITS DECISION

CONFLICTS WITH THIS COURTS

PRECEDENT CONCERNING FEDERAL-

STATE RELATIONS.

A. The Third Circuit’s View of Preemption

Conflicts With This Court’s Case Law.

1. In this Court’s cases, the preemption of state

law is something that occurs, pursuant to the

Supremacy Clause, when necessary to protect the

integrity of the federal government’s own affirmative

efforts to govern directly. As this Court has often

explained, it has in its cases found state law

preempted in three circumstances. First, Congress

might “enactl) a statute containing an express

preemption provision.” Arizona v. United States, 132

S. Ct. 2492, 2500-01 (2012). Second, “state laws are

preempted when they conflict with federal law.” /d.

at 2501. Third, “the States are precluded from

regulating conduct in a field that Congress, acting

within its proper authority, has determined must be

regulated by its exclusive governance.” Ibid. The

consistent strand throughout the cases is the

existence of valid federal Jaw seeking to govern the

country directly. See, e.g., Hodel v. Va. Surface Min.

& Reclamation Ass'n, Inc., 452 U.S. 264, 290 (1981).

In cases of conflict or field preemption, the

affirmative federal law is central to the Court's

analysis. The question in every one of those cases,

after all, is whether the existence of some affirmative

federal law implies the displacement of a particular

state law. For conflict preemption, this requires close

scrutiny of the federal law to determine whether it

makes compliance with the challenged state law “a

physical impossibility,” Arizona, 132 S. Ct. at 2501

(quoting Florida Lime & Avocado Growers, Inc. Vv.

Paul, 373 U.S. 132, 142-43 (1963)), or whether the

state law “stands as an _ obstacle to the

accomplishment and exccution of the full purposes

and objectives of Congress,” ibid. (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)). For ficld

preemption, a court must determine whether the

federal law is “so comprehensivel] that it has left no

room for supplementary state Icgislation.” RJ.

Reynolds Tobacco Co. v. Durham Cnty., N.C., 479

U.S. 130, 140 (1986).

In cases of express preemption, the focus tends

instead to be on a specific preemption clause—-often a

single sentence in a statute—but therc is always an

overarching affirmative federal law, as well. See,

e.g., Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

Ca., 133 8S. Ct. 2096 (2013) (Federal Aviation

Administration Authorization Act of 1994); Hillman

v. Maretta, 133 S. Ct. 1943 (2013) (Federal

Employees’ Group Life Insurance Act of 1954);

Arizona, 132 S. Ct. 2492 (Immigration Reform and

Control Act of 1986); Nat’ Meat Ass’n y. Harris, 132

S. Ct. 965 (2012) (Federal Meat Inspection Act):

Kennedy v. Plan Adm’r for DuPont Sav. and Inv.

Plan, 555 U.S. 285 (2009) (Employee Retirement

Income Security Act of 1974); Bates v. Dow

Agrosciences, L.L.C., 544 U.S. 431 (2005) (Federal

Insecticide, Fungicide, and Rodenticide Act); Engine

Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541

U.S. 246 (2004) (Clean Air Act); Nixon v. Mo. Mun.

League, 541 U.S. 125 (2004) (Telecommunications

Act); Sprietsma v. Mercury Marine, 537 U.S. 51

(2002) (Federal Boat Safety Act); Lortilard Tobacco

Co. v. Reilly, 533 U.S. 525 (2001) (Federal Cigarette

Labeling and Advertising Act); Geier v. Am. Honda

Motor Co., Jnc., 529 U.S. 861 (2000) (National Traffic

and Motor Vehicle Safety Act); Medtronic, Inc. vy.

Lohr, 518 U.S. 470 (1996) (Medical Device

Amendments to the Federal Food, Drug and

Cosmetic Act); Am. Airlines, Inc. v. Wolens, 513 U.S.

219 (1995) (Airline Deregulation Act); CSX Transp.,

Inc. v. Easterwood, 507 U.S. 658 (1993) (Federal

Railroad Safety Act); Aloha Airlines, Inc. v. Dir. of

Taxation of Haw., 1464 U.S. 7 (1983) (Airport and

Airway Development Acceleration Act of 1970); Shaw

v. Delta Air Lines, Inc., 463 U.S. 85 (1983).

As this Court has said, an express preemption

clause makes explicit what courts infer in finding

conflict or field preemption: that certain state laws

contravene an affirmative federal regime. See

Chamber of Commerce of U_S. v. Whiting, 131 S. Ct.

1968, 1977 (2011) (describing an “express preemption

clause” as “the best evidence of Congress’ preemptive

intent” (internal quotations omitted)). Rather than

relying on the courts to later discern whether a state

law interferes with an affirmative federal law,

Congress is permitted by the Supremacy Clause

simply to enact “a statute containing an express

preemption provision” that makes clear which state

laws must give way to the new federal regime.

Arizona, 132 8. Ct. at 2500-01 (emphasis added); see

also Easterwood, 507 U.S. at 664 {noting that a

federal statute may “contain{]” an express

preemption clause); Sprietsma, 637 U.S. at 62

9

(same). When added to an affirmative federal law, an

express preemption clause serves to protect that

federal scheme from state laws that would impose

inconsistent rules.

This Court’s cases illustrate this use of express

preemption clauses not only as part of federal

regulatory regimes, but also deregui/atory regimes.

For example, in 1978 Congress enacted the Airline

Deregulation Act ADA”), which shifted the focus in

that industry from complex government regulation to

“maximum reliance on competitive market forces.”

Morales v. Trans World Airlines, Inc., 504 U.S. 374,

378 (internal quotations omitted). And “[t]o ensure

that the States would not undo federal deregulation

with regulation of their own, the ADA included a pre-

emption provision, prohibiting the States from

enforcing any law relating to rates, routes, or

services of any air carrier.” Id. at 378 79 CGnternal

quotations omitted). Similarly, Congress

“deregulated trucking” in 1980. ltowe v. N.H. Motor

Transport Ass’n, 552 U.S. 364, 368 (2008). Then, in

1994, Congress sought to ensure that the States

would not “undo federal deregulation” and thus

adopted a law “pre-emptiing] state trucking

regulation.” Jbid. (internal quotations omitted). In

both cases, Congress adopted a federal deregulatory

regime and added an express preemption clause to

protect that regime by prohibiting action by the

States.

All of these cases—whether concerning express,

conflict, or field preemption—reflect this Court’s

description of the Supremacy Clause as a rule of

priority between federal and state law. It is, of

10

course, well known that the Constitution “establishes

a system of dual sovereignty between the States and

the Federal Government.” Gregory v. Ashcroft, 501

U.S. 452, 457 (1991). But “{flrom the existence of two

sovereigns follows the possibility that [state and

federal! laws can be in conflict or at cross-purposes.”

Arizona, 132 S. Ct. at 2500. The Supremacy Clause,

this Cuurt has explained, “provides a clear rule that

federal law ‘shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” Ibid.

(quoting U.S. Const. art. VI, cl. 2).

2. ‘he Third Circuit’s analysis, however, ignores

the critical relationship between the preemptive

effect of federal law and Congress's affirmative

decision to regulate (or deregulate) in an area within

its enumerated powers. Rather, the Third Circuit

claimed that “congressional action in passing Jaws in

otherwise pre emptible fields has withstood attack in

eases where the states were not compelled to enact

laws or implement federal statutes or regulatory

programs themselves.” Pet. App. 19a. In other words,

the Third Circuit suggested that, so long as a

particular field is “otherwise pre-emptible,” Congress

may prevent States from acting even if it declines to

create a federal regulatory regime itself. See rbid.

But the cases that the court relied on in

support—Hode! and FERC vy. Mississippi, 456 U.S.

742 (1982)—belie this conclusion. As the court

acknowledged, these cases involve the protection of

actual federal regulatory schemes. See Pet. App. 19a

(noting that Hode/ involved “a law that imposed

11

federal standards for coal mining”); id. at 20a (noting

that FERC required states to “consider’ enacting

federal standards”). In both those cases, Congress

protected the federal regime not by excluding the

States, but by permitting them to remain in the field

under certain conditions. See Printz v. United States,

521 U.S. 898, 925-26 (1997) (“In Hodel we . . .

concluded that the Surface Mining Control and

Reclamation Act of 1977 did not present [a Tenth

Amendment] problem . . . because it merely made

compliance with federal standards a precondition to

continued state regulation... .”); FERC, 456 U.S. at

765 (“PURPA should not be invalid simply because,

out of deference to state authority, Congress adopted

a less intrusive scheme and allowed the States to

continue regulating in the area on the condition that

they consider the suggested federal standards.”).

In sum, this Court's cuses make clear that if

Congress enacts an affirmative federal regime, it

may also enact an express preemption clause to

protect that regime from contrary action by the

States. But this Court has never recognized—as the

Third Circuit now has—that the Supremacy Clause

endows Congress with the substantive authority to

forbid States from acting in “otherwise pre-cmptible

fields” when there is no affirmative federal regime to

protect. See Pet. App. 19a. The Supremacy Clause

has been held to give primacy to valid federal laws

over contrary state laws, but it has never been

construed as a license to Congress to prohibit state

lawmaking whenever and however it desires. Sce

New York, 505 U.S. at 178 (The Constitution

instead gives Congress the authority to regulate

matters directly and to preempt contrary state

12

regulation.”). This Court should grant certiorari to

resolve the conflict between this Court’s

jurisprudence and the Third Circuit’s approach to

preemption.

B. The Third Circuit Decision Also Conflicts

With This Court’s Anti-Commandeering

Jurisprudence.

This Court has also made clear that, under the

Tenth Amendment to the U.S. Constitution,

Congress may not “regulate state governments’

regulation.” New York, 505 U.S. at 166. Yet that is

precisely what PASPA does, under the Third

Circuit’s interpretation: it directly prohibits States

(with a few grandfathered exceptions) from repealing

bans on sports wagering within their borders.

Just as it radically departed from this Court’s

preemption case law, the Third Circuit also

fundamentally misconstrued this Court’s anti-

commandeering jurisprudence. The Third Circuit

upheld PASPA because, in its view, the statute did

not “presentl] states with a binary choicc—cither

maintain a complete prohibition on sports wagering

or wholly repeal state prohibitions.” Pet. App. 17a—

I8a. The court concluded that Congress still left

“sufficicnt room under PASPA to craft their own

policies,” even though the court declined to explain

exactly what actions, short of a total repeal of all

sports wagering laws, would be permissible. /d. at

23a.

This Court’s test for commandeering, however,

does not turn on whether federal legislation leaves

the States with something more than a “hinary

13

choice.” Rather, as explained below, this Cuurt hus

made clear that anti-commandeering doctrine exists

to ensure that the state and federal governments

each remain directly accountable for their own

actions. What matters is whether Congress has

obscured its own responsibility by forcing state

governments to carry out federal policy rather than

doing so itself. And that can occur—contrary to the

Third Circuit’s conclusion—whcether or not Congress

restricts the States to a “coercive binary choice.” Id.

at 23a.

1. The Political Accountability Principles At

The Core Of This Court’s§ Anti-

Commandeering Cases Do Not Accord

With The Third Circuit’s “Coercive

Binary Choice” Test.

a. This Court has explained that the anti

commandcering doctrine flows directly from the

Framers’ decision to adopt a structure of dual

sovereignty. In drafting the Constitution, the

Framers’ deliberately rejected a system = of

government in which Congress would “employ state

governments as regulatory agencies.” New York, 505

U.S. at 163. Indeed, that was the model under the

Articles of Confederation, and “[tlhe inadequacy of

thlat] governmental structure was responsible in

part for the Constitutional Convention.” /bid. At the

Convention, two proposals “took center stage,” id. at

164, and the Framers “explicitly chose a Constitution

that confers upon Congress the power to regulate

individuals, not States,” rd. at 166.

The point of the new governmental structure wus

to establish dual sovereigns, with each directly

14

responsible to its citizens for its own actions. The

Framers determined that “Itlhe new National

Government ‘must carry its agency to the persons of

the citizens. . . . landl address itseJf immediately to

the hopes and fears of individuals.” /d. at 163

(quoting The Federalist No. 16, at 111 (Alexander

Hamilton) (Clinton Rossiter ed., 1961)). Likewise, “a

State’s government [would] represent and remain

accountable to its own citizens.” Printz, 521 U.S. at

920. The “great innovation of thle] design” was “a

legal system unprecedented in form and design,

establishing two orders of government, each with its

own direct relationship, its own privity, its own set of

mutual rights and obligations to the people who

sustain it and are governed by it.” /bid. (quoting U.S.

Term Luamits, Inc. v. Thornton, 514 U.S. 779, 838

(1995) (Kennedy, J., concurring)).

The anti-commandeering doctrine safeguards

this system of dual sovereignty and _ clear

accountability. When state and federal governments

act separately and directly on their citizens, each is

publicly exposed as responsible for its actions, and

each must bear the electoral consequences of those

actions. If the citizens of a State do not agree with a

certain state policy, for example, “they may elect

state oft.cials who share their view.” New York, 505

U.S. at 168. And if that view is contrary to the

national view, it “can always be pre-empted under

the Supremacy Clause,” and then “federal officials

lwill] suffer the consequences if the decision turns

out to be detrimental or unpopular.” Jbid. But where

Congress commandeers and forces States to

implement federal policy, “it may be state officials

who will bear the brunt of public disapproval, while

the federal officials who devised the regulatory

program may remain insulated from the electoral

ramifications of their decision.” Id. at 169.

Accordingly, this Court has stressed that

maintaining clear lines of political accountability 1s

the touchstone of the anti-commandecring doctrine.

Although commandcering can be a way for Congress

to save a few federal dollars, it does not matter

whether the States must actually “absorb the costs of

implementing a federal program.” Printz, 521 U.S. at

930. Nor is the importance of the federal program,

New York, 505 U.S. at 178, or a State’s consent, id.

at 182, relevant. The critical question is whether the

federal government has put States “in the position of

taking the blame for |the federal program’s|

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

at 930.

As this Court has noted, the focus on

maintaining direct accountability “may appear

‘formalistic” but that is the nature of our

Constitution, which places great cmphasis on “the

form of our government.” New York, 505 U.S. at 187.

Our system of dual sovereignty, requiring cach

government to remain accountable to its citizens, 1s

as much a part of the Constitution as the substantive

limits on Congress’s power. And it is equally, if not

more, significant. The separation of the state and

federal governments “is one of the Constitution's

structural protections of liberty,” Printz, 521 U.S. at

921, providing an important “double security”

against tyranny and the abuse of power, id. at 922

(quoting The Federalist No. 51, p. 320 (James

Madison)). By keeping them strictly apart, “I[tlhe

16

different governments wit! control each other, at the

same time that each will be controlled by itself.”

Thid.

b. The Third Circuit’s “coercive binary choice”

test fails to recognize that federal laws that prevent

States from considering the full panoply of available

policy choices—such as whether or not to issue a

license—can result in precisely the sort of misplaced

blame that the anti-commandcering doctrine aims to

prevent. When a State denies an individual his

driver's license, building permit, medical license, or

fishing license, the individual is unlikely to blame

Congress, which did not enact some form of direct

national regulation. For the average American, who

is not familiar with every nuance of the United

States Code, the more obvious culprits are the state

officials who stand between the citizen and the

desired license.

This human propensity to “shoot the messenger”

has long been recognized. Sophocles wrote in

Antigone that “Inlo one likes the bringer of bad

news.” Sophocles, Antigone (c. 441 B.C.), reprinted in

Sophocles: The Complete Plays 352 (Paul Roche

transl., Signet Classics 2001). Shakespeare wrote in

Antony and Cleopatra that “lt}he nature of bad news

infects the teller.” William Shakespeare, Antony and

Cleopatra (c. 1606), reprinted in The Unabridged

Wiliam Shakespeare 1135 (William George Clark &

William Aldis Wright eds. 1989). English law

historically protected town criers because of the

people's tendency to lash out at these bearers of the

King’s news. Any harm to a town crier—shooting the

messenger, so to speak—-was considered treason. See

17

Top town crier to be crowned as Hebden Bridge hits

500, BBC, http://news.bbe.co.uk/local/bradford/

hi/people_and_places/arts_and_culture/newsid_8931

000/8931369.stm (last updated Aug. 20, 2010).

Importantly, this Court has shown that it does

not matter, for purposes of the anti-commandeering

doctrine, that a little research might reveal the

federal government’s involvement. In Printz, this

Court found that Congress had improperly shifted

political accountability to state chief law enforcement

officers (“CLEOs”) by requiring them to conduct

background checks during handgun sales. The Court

reasoned: “[I]t will be the CLEO and not some

federal official who stands between the gun

purchaser and immediate possession of his gun.” 521

U.S. at 930. Thus, “it will likely be the CLEO, not

some federal official, who will be blamed for any

error (even one in the designated federal database)

that causes a purchaser to be mistakenly rejected.”

Ibid.

This blurring of the lines of political

accountability between the state and federal

governments will occur regardless of whether the

federal commandeering reduces a State’s option to

two unpalatable choices or not. It will result as long

as, in some cases, federal law requires States to

retain and unforce unpopular policies against the

States’ will,

2. Prohibiting States From Repealing Their

Own Laws Raises Particular Concerns

Under The Tenth Amendment.

The Third Circuit’s en banc decision raises

18

further federalism concerns because it would

prohibit States from doing so much as repealing their

own laws. In 2013, the Third Circuit purported to

interpret PASPA to preserve state autonomy at least

to the extent that a State would be permitted to

“repeall] its ban on sports wagering.” Pet. App. 158a,

160a. While this test was similarly unmovred to this

Court’s anti-commundeering case law, it at least

preserved some room for States to remove existing

restrictions on private conduct. The cn bane Third

Circuit, however, further restricted the universe of

permissible state action by holding that PASPA

prohibited even the “selective repeal of certain

prohibitions” under state law. See Pet. App. 23a.

Prohibiting States from repealing thcir own laws

raises at least two additional troubling concerns from

a federalism perspective.

1. The Third Circuit’s decision conflicts with a

core aspect of residual sovereignty guaranteed by the

Tenth Amendment—namely, the right of the People

to decide whether or not to retain certain powers and

liberties or to delegatc those powers and liberties to

the States. Specifically, the Third Circuit’s ruling

would make it impossible for the People, acting

through their state representatives, to reclaim

liberties previously delegated to the States through

the repeal] of unpopular laws.

The Tenth Amendment provides that “(tlhe

powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the states respectively, or to the people.”

U.S. Const. amend. X (emphasis added). This

Amendment does not exist merely to “protect the

19

sovereignty of States for the benefit of the States or

state governments as abstract political entities, or

even for the benefit of the public officials governing

the States.” New York, 505 U.S. at 181. Instead, “the

Constitution divides authority between federal and

state governments for the protection of individuals.”

Ibid. (emphasis added); see also Coleman v.

Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J.,

dissenting).

Inherent in the rights reserved under the Tenth

Amendment is the right of the People to decide

whether or not to permit States to regulate in certain

areas or to retain such power for themselves. The

Tenth Amendment “does not specify which of these

two possibilities obtains.” Thornton, 514 U.S. at 847

(Thomas, J.. dissenting). Rather, “the Amendment

avoids taking any position on the division of power

between the state governments and the people of the

States,” and leaves “to the people of each State to

determine which ‘reserved’ powers their state

government may exercise.” Jd. at 848. In other

words, it is up to the People of each State and their

elected representatives (not Congress) to decide

whether to enact or repeal legislation in an arca

within the State’s reserved powers (and not contrary

to a valid federal regulatory regime).

Accordingly, this Court has noted that a fedcral

law should be read narrowly to preserve state

authority “when Congress legislates in an area

traditionally governed by the States’ police powers.”

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2188-89

(2014). It is beyond doubt that the rights and

obligations attending sports wagering fall within

20

these reserved or “police powers” of the States.

Indeed, because “|t/he suppression of gambling is

concededly within the police powers of a state, .. .

legislation prohibiting it, or acts which may tend to

facilitate it, will not be interfered with by the courtls]

unless such legislation [effects] a clear, unmistakable

infringement. of rights secured by the fundamental

law.” Ah Sin v. Witiman, 198 U.S. 500, 505-06

(1905) (internal quotation marks omitted). The

purpose of these canons of construction is to protect

the primacy of state power in areas that the

Constitution has left to the States. See rbid.

The Third Circuit's decision turns this

deferential approach on its head, by restricting the

rights of the States’ elected representatives to return

power to the People by repealing existing laws.

Rather, the Third Circuit’s decision would allow

Yongress to cement in place prohibitions that

citizens have voted to remove from their state

constitutions or statutes.

New Jersey's experience provides a case in point

about how (absent PASPA) a State’s citizenry can

exercise its residual sovereignty under the U.S.

Constitution to return liberties to the People within

the State. Although New Jersey law had previously

prohibited sports wagering, the state legislature in

2010 sought out ways in which it could financially

assist struggling casinos and racetracks within its

borders. Sce Pet. App. 52a. After public hearings

convinced state lawmakers that sports wagcring

might provide a necessary boost to New Jerscy’s

gaming establishments, the New Jersey J-egislature

provided its citizenry, via a 2011 constitutional

21

referendum, the opportunity to decide for itself

whether the economic benefits of sports gaming

outweighed the perceived drawbacks. Ibid. Sixty-four

percent of those who voted decided that allowing

sports gaming would be in the State’s best interest.

Ibid. The people of New Jersey thus by a comfortable

majority returned a particular liberty that had

previously been proscribed by state law (sports

wagering) back to the People.

These actions fit squarely within the rights and

powers reserved to the States and the People under

the Tenth Amendment in instances where, like here,

there is no contrary federal regulatory regime. The

Third Circuit’s construction of PASPA and its

unprecedented approach to federal preemption,

however, shackles New Jersey's citizenry by freezing

in time prohibitions that no longer make sense to

state residents.

Moreover, there is no principled reason why the

Third Circuit’s approach would be limited in future

cases to the unique concerns underlying PASPA.

Rather, the Third Circuit’s reasoning throws into

confusion the extent to which any state electorate

may control its lawmakers’ exercise of the police

powers that have, since the earlicst days of the

Republic, enjoyed freedom from federal interference.

The slope is slippery: if allowed to stand, the Third

Circuit’s opinion could place at the mercy of the

federal government state attempts to experiment

with their respective—and often uniqucly local—

approaches to, inter alia, the days on which alcohol

might be sold, hunting and fishing licenses, lotteries,

and speed limits. Certiorari should be granted to

22

protect the traditional role of the States in our

federal system.

2. Furthermore, by allowing the federal

government to ossify sports*wagering restrictions

that the People of a State desire to repeal, the Third

Circuit has allowed the federal government to

commandeer executive branch officials as well as the

State’s lawmakers. As New Jersey’s petition for

certiorari notes, Pet. 17, the state constitution leaves

law-enforcement officials with no discretion to ignore

gambling prohibitions that remain in effect. See, e.g.,

N.J. Const. art. V, § 1, § 11 (“The Governor shall

take care that the laws be faithfully executed.”).

Thus, the Third Circuit’s opinion forces state law"

enforcement officers to prosecute violators of

prohibitions that, had the People been permitted to

exercise their constitutionally-recognized right to

self-governance, would not cxist.

This Court has noted that federal

commandeering of state executive-branch officials

violates the Constitution as much as commandeering

of legislative-branch officials. As the Court has

observed, “It]he power of the Federal Government

would be augmented immeasurably if it were able to

impress into its service—and at no cost to itself—the

police officers of the . . . States.” Printz, 521 USS. at

922. The Court has also recognized that allowing

Congress to commandeer state executive-branch

officials would violate separation of powers

principles. By allowing Congress to de facto order

state executive branch officials to enforce state

prohibitions in furtherance of a federal legislative

anti-sports-gaming objective, the Third Circuit has

23

given Congress license to “act as effectively without

the President as with him,” id. at 923. This, in turn,

has the deleterious effect of “shatterling]” federal

“unity” and “reducling]” the power of the Presidency.

lhid.

In short, “(t]he Framers’ experience under the

Articles of Confederation had persuaded them that

using the States as the instruments of federal

governance was both ineffectual and provocative of

federal-state conflict.” dd. at 919 (citing The

Federalist No. 15). Thus, “the Federal Government

may not compel the States to implement, by

legislation or executive action, federal regulatory

programs.” Jd. at 925 (emphasis added). Because the

Third Circuit’s reading of PASPA would require state

executive officials to enforce unpopular laws that

would otherwise be repealed, the court’s analysis 1s

fundamentally flawed and merits this Court's

review.

Il. THE THIRD CIRCUITS DECISION HARMS

STATES AND OUR SYSTEM OF DUAL

SOVEREIGNTY.

If permitted to stand, the Third Circuit's decision

also threatens to greatly expand the federal

government’s power. Significantly, with the ability to

shift political blame to the States, Congress could act

with far less fear of repercussions at the voting

booth, especially on issues that strike at the core of

American life and for which the federal government

would very likely want tu avoid responsibility.

lor instance, with the recent controversy over

long-term brain damage in football players, Congress

24

could decide that. American children should not be

playing the sport. But rather than enact what could

be extremely unpopular restrictions at the national

level, the federal government could prohibit the

States from authorizing or licensing youth footbal!

leagues. In the interest of national security,

Congress might decide that the Department of

Justice requires greater ability to monitor the

Internet. But to deflect the backlash for its invasion

of privacy, federal legislators could restrict the

States from issuing business licenses to Internet

service providers unless those companies agreed to

provide the FBI unrestrained access to their

subscriber databases.

In such cases, when the permit or lhcense is

denied, at least some (if not all) of the blame will fall

wrongly on the States, even if a particular State

would prefer as a matter of policy to have acted

otherwise. Just as in Printz, it will be the State, or a

state official, and “not some federal official” who is

interfering with day-to-day life, 521 U.S. at 930. And

just as in Printz, there would be legitimate concerns

about misplaced blame even though these are high-

profile issues and the relevant laws would be

available to anyone diligent enough to seek them out

and read them.

The injury to state sovereignty would be

unprecedented. The genius of our system of dual

sovereignty is that the States can act as a voice for

change or dissent, even in the face of a national

policy. Our system of government “promotes

innovation by allowing for the possibility that ‘a

single courageous State may, if its citizens choose,

25

serve as a laboratory; and try novel socia! and

economic experiments without risk to the rest of the

country.” Gonzales v. Raich, 545 U.S. 1, 42 (2005)

(O’Connor, J., dissenting) (quoting New State Ice Co.

v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,

dissenting)). If Congress disagrees and has the

Article I authority to act, it may establish a federa!

regime and preempt contrary state law. And when

Congress does so, it is understood that the federal

government has simply overridden the States and

that individual States do not necessarily agree with

the national policy. But under the Third Circuit's

view, Congress could avoid taking ownership and

force the States to advance its preferred policy

position, whatever that may be under the political

party then in power, in a way that makes individual

States seem responsible. Our federal system of

government does not permit this result.

26

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

PATRICK MORRISEY

Attorney General

ELBERT LIN

Solicitor General

Counsel of Record

THOMAS M. JOHNSON, JR.

Deputy Attorney General!

EDWARD M. WENGER

General Counsel

OFFICE OF THE

ATTORNEY GENERAL

State Capitol

Building 1, Room E-26

Charleston, WV 25305

Elbert.Lin@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae

State of West Virginia

NOVEMBER 14, 2016

MARK BRNOVICH

Attorney General

State of Arizona

JiM Hoop

Attorney General

State of Mississippi

27

JEFF LANDRY

Attorney Gencral

State of louisiana

BRAD D. SCIHIMEL

Attorney General

State of Wisconsin