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

OFFICE tof at

UP PLE?

No. 16-476

In the Supreme Court of the Anited States

GOVERNOR CHRISTOPHER .J. CHRISTIE, et a/.,

Petitioners,

Vv.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al,

Respondents.

ee a

ON WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE STATES OF

WEST VIRGINIA, 17 OTHER STATES, AND THE

GOVERNORS OF KENTUCKY, MARYLAND, AND

ae DAKOTA

PATRICK MORRISEY THOMAS M. JOHNSON, JR.

Attorney General Deputy Solicitor Genera!

Counsel of Record

OFFICE OF THE EDWARD M. WENGER

ATTORNEY GENERAL Genera! Counsel

State Capitol

Building 1, Room E-26

Charleston, WV 25305

TJohnson@wvago.gov

(304) 558-2422

Counsel for Amicus Curiae State of West Virginia

{additional counsel listed at end]

FILED

SEP -5 2017

we

OUR

LERK

i

QUESTION PRESENTED

Federal law does not directly prohibit sports

wagering in States where the practice is legal. But the

Professional and Amateur Sports Protection Act

(“PASPA”) prohibits a State, other than Nevada or

several other exempted States, to “license” or

“authorize” sports wagering. See 28 U.S.C. § 3702.

‘The en bane Third Circuit, over two dissents, has

interpreted this provision as prohibiting the States

from modifying their laws to repeal existing

prohibitions on sports wagering.

The question on which this Court granted

certiorari is:

Whether a federal statute that prohibits

modification or repeal of state-law prohibitions on

private conduct impermissibly commandcer the

regulatory power of States in contravention of New

York v. United States, 505 U.S. 144 (1992)?

ii

TABLE OF CONTENTS

Fee Ie Fe Ricceciransnsetersccshotessoviconsoesenseas i

EAE CARE IED tints srsicccinsenatccansosesepeisistonanepes ii

SAREE CIE FAT et Ue erkintinnsccniscsestnescscnesnnsecions iv

INTRODUCTION AND INTEREST OF AMICI

fot RAEN Tg EIT ATER RE ERLE ERR ts BOP OY ON 1

SUPEREAICE OF ABSSUBEEIN DE 200:0cccccccccoesssccesseseseveeceees 3

IEE, dein cicienenctmtactengtindncpaneinthariniishinmininatcsbivons D

I. PASPA Exceeds Congress’s Legitimate

Powers And Usurps Powers Reserved To The

States Under The Tenth Amendment.................. 5

A. PASPA Is Not An Exercise In Legitimate

Preemption Because Congress Has Not

Enacted An _ Affirmative Regulatory Or

I IN os icccacckntcpscnencesicdecnaa 5

B. PASPA Unlawfully Commandeers The

AE Rea ares FR Rune dl deat 59 4A Re LES eee Ll

1. PASPA Blurs Lines Of Political

Accountability That Animate ‘This

Court’s Anti-Commandeering Cases...12

2. Barring States From Repealing Their

Own Laws Raises Particular Tenth

Amendment Concerns. ..............+..0:..16

3. The Earlier Third Circuit Panel’s

“Affirmative/Negative” Distinction

Likewise Has No Basis In Tenth

Amendment Principles...................... 23

ill

ll]. Laws Like PASPA Harm States, Their

Citizens, And Our System Of Dual

Sovereignty

CONCLUSION

PRR HERR RRR RR eT OR ee eee eee eee eee

iv

TABLE OF AUTHORITIES

Cases

AA Sin v. Wittman,

ae CIE I ccnainnsshacncsntbbocecsiceseeceeanueds 19, 20

Aloha Airlines, Inc. vy. Dir. Of Taxation of Haw.,

RE OI cichcntncenscusnsuselanthiuahecpntacousesiehesssoe 7

Am. Airlines, Inc. vy. Wolens,

a a ee oT sl cdacpemieis 7

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

Ci, Se ts I AI coos enevavcncivuddnncocenmsedss 6

Arizona v. United States,

ee ai esentedcanencecen: passim

Bates v. Dow Agrosciences, L.1..C.,

rs csenstenindenitctmenicnel 6

Chamber of Commerce of US. v. Whiting,

BN I ois rscahsvamcddonepsinimennninces 7

Coleman v. Thompson,

Be I Bis ssscecinntumetupsonesoni tumeciisbonesns 18

CSX Transp., Inc. v. Kasterwood,

ee iia vesncistonavotntecsnbusencessinetes 7

CTS Corp. v. Waldburger,

Fe se aioe nensctstncnivisseiempevennteisbemes 19

Engine Mfrs. Assin v. S. Coast Air Quality Mgmt.

Dist.,

SN Rn, SY OND ic con nacccmnsuneséccessiyweiese p SEED ETB 6

FERC v. Mississippi,

ke oer 9

v

Fla. Lime & Avocado Growers, Inc. v. Paul,

pe Ue sa a actmeanneoneent 6

Geier vy. Am. Honda Motor Co., Ine.,

Se Ge rs IE I cciecnccccaaseccedcpeanesscnosstccuccecesscgies 7

Gonzales v. Raich,

dew vaadueuuancbiaca 26

Gregory v. Ashcrolt,

Sa ails vumeoceees 8

Hillman yv. Maretta,

ge: Ee ee ae 6

Hines v. Davidowtiz,

Dn ii a a 6

Hodel v. Va. Surface Min. & Reclamation Ass'n,

Ine.,

. yoo % «| eee ees hala to

Kennedy v. Plan Adm’ for DuPont Sav. and Iny.

Plan,

Se cts Se CID sc sncecccscsvevevenccocsccccccscaseccevcsvsees 6

Lorillard Tobacco Co. v. Reilly,

Fis Me CIEE Pivicscsicy scovcavnnccedocceccecccsescocesccsvecee 7

Medtronic, Inc. v. Lohr,

BIS U.S. 470 (1906)....................cccccccccessccecccevccscsces 7

Morales v. Trans World Airlines, Inc.,

is Oe Fe CI ce coceninkass i vecsccccee savesesscvrvcccecseves 8

Nat? Meat Assn v. Harris,

BER Oy Ch, Be Ca a nccccccceesccccccccrcncccccovnccccsccceesses: 6

New State Ice Co. v. Liebmann,

FD Acie, Bee CL vcccctesccccescvccncscccsecccncocccnscsseses 26

vl

New York v. United States,

ES UBD. 166 COI a necvesscerncescssavveisesivsmevans passim

Nixon v. Mo, Mun. League,

Rte Se f+

Printz v. United States,

CARR UF Ce CREE Biv esscctsinnenssccceeseenssxsseepnnenealee

RJ. Reynolds Tobacco Co. v. Durham Cnty.,

N.C,

STO UB. RD CE weesveiecetciscisncssinninesstonteaaaee

Rowe v. N.H. Motor Transport Ass'n,

BER Ul Ee., Be Ce sscecessivchaswiseseskscesacunencuenieaeanenae

Shaw v. Delta Air Lines, Inc.,

GOB UB. BB Ca weccexenscccetasecsessscetiasseensiacieaeeen

Sprietsma v. Mercury Marine,

eek ee. ee!

U.S. Term Limits, Inc. v. Thornton,

B26 UB; TH Cr viicessseessiscvenitonaaee 12,19

Statutes

» BOR Cok Sy RaMNNENEEMMEM ime E i

y Bas Tom |. meme ee IC 1

NJ. Consk. avt. Vi 6 1, F:10 ac.casicssteuecssscscicataee 22

US. Catnh, GN: Fh weneecsvcecccediaclicioescceenee 18

oF Be” a Mee 8

U.S. Const. arte. I, § Gs Ve Vi, eh: Biccccccssscaudscoscatuna 18

Other Sources

| The Works Of James Wilson 1, 14 (lames DeWitt

Amen CEs LIS 60 viceeeendsceeecesiesssentiptena ee 17

vil

John Locke, Two ‘l'reatises of Government § 149 (P.

on cc chpeduuewevoveveorteres 17

Sophocles: The Cumplete Plays 352 (Paul Roche

transl., Signet Classics 2001)............-scecccecervcceese 14

The Complete Anti-Federalist (Herbert J. Storing, ed.,

sd cha eeweveccncesssoceedess 17

The Federalist No. 51 (James Madison) (Clinton

ee ccddevavenvacesouces 14

The Federalist No. 37 (James Madison) (Clinton

Tene ee a cobbvorsisnesencoetores 17

The Federalist No. 39 (James Madison) (Clinton

a atcbeewseecncsousue 17

NN oc cccccececccceeccocecenceceseee 17

The Unabridged William Shakespeare (William

George Clark & William Aldis Wright eds. 1989).....14

]

INTRODUCTION AND

INTEREST OF AMICI CURIAE

The Professional and Amateur Sports Protection

Act (“PASPA”), 28 U.S.C. §8§ 3701 ct sceg., prohibits

States from exercising core regulatory powers

reserved to them and their citizens under the Tenth

Amendment—namely, the power to “license” or

“authorize by law” conduct that a State had previously

chosen to prohibit. The Third Circuit, sitting en banc,

has interpreted PASPA as prohibiting States from

amending or repealing their own laws and requiring

them to enforce laws that the citizens of those States

or their elected representatives have voted to repeal.

If this Court affirms that decision, Congress could

compel the entire machinery of state government—

legislatures, executives and courts—to maintain and

enforce repealed state laws at the behest of the federal

government.

The Constitution does not permit this result. To

be sure, Congress undoubtedly has the power to

preempt state law when it enacts a federal regulatory

regime in furtherance of one of its enumerated

powers. But PASPA far exceeds Congress’s power to

preempt state law—and conflicts with this Court’s

federalism jurisprudence—in two significant ways.

First, this Court's preemption cases al!

presuppose that the federal government has made an

affirmative decision to regulate in a particular field

and displace contrary state law. Congress, however,

has not chosen to regulate sports betting. Instead,

PASPA prevents state legislatures from making

modifications to their own laws and then makes those

2

laws (and the apparatus of state government required

to enforce them) instruments of federal policy. Second.

PASPA (as interpreted by the en danc Third Circuit)

cannot be reconciled with this Court's anti-

conumandecring jurisprudence because it requires

state legislatures to maintain, and state executive

officials to enforce, laws the citizenry would have

repealed. PASPA thus offends the ultimate

sovereignty of the People to determine whether, and

in what circumstances, to delegate their powers and

restrict their liberties through state law.

Amici curiae States submit this brief in support of

Petitioners because PASPA impermissibly skews the

federal-state balance. Amici States take no position on

the wisdom of sports wagering, nor would all amucs

likely legalize sports betting even if permitted. But al!

amici do have a profound interest in the principle

that—ahsent a validly enacted federal regulatory

scheme—Congress cannot prevent the States from

enacting, modifying, or repealing their own laws. If

the Third Circuit’s decision is upheld, Congress could

prevent the States from repealing prohibitions—or

altering existing regulations—in countless areas of

traditional state concern, such as the sale or use of

pharmaccuticals, medical devices, firearms, lottery

tickets, or credit arrangements, to name a few.

Such proscriptions would insulate Congress from,

and force the States to assume, the political

accountability inherent in implementing federal

policies. That result not only conflicts with this

Court’s jurisprudence, but also offends notions of

residual state and individual sovereignty, both of

3

which are protected by the Tenth Amendment and

have been recognized since before the Founding.

SUMMARY OF ARGUMENT

Our system of dual sovereignty limits the degree

of control that Congress can exercise over state

regulation. Indeed, the Constitution effectively

provides Congress with two means to influence or

displace state policy choices. First, Congress may

“encourage a State to regulate in a particular way” by

“hold[ing] 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). Second, when

Congress decides “to regulate matters directly”

through an affirmative federal regime, the Supremacy

Clause authorizes “pre-emptfion] [of] contrary state

regulation.” /d. at 178.

With PASPA, Congress has selected neither

option: It has not provided States with incentives to

prohibit sports wagering nor has it enacted a federal

sports betting regime to displace contrary state law.

Instead, PASPA prohibits States from modifying their

own laws to “authorize” or “license” sports wagering

and, under the en banc Third Circuit’s reading,

compels States to enforce their own preexisting

betting prohibitions, even if the people or their elected

representatives have voted to repeal them.

That is impermissible. Congress cannot “regulate

state governments’ regulation.” New York, 505 U.S. at

166. That is because “the Constitution has never been

understood to confer upon Congress the ability to

require the States to govern according to Congress’

4

instructions.” /d. at 162. But that is precisely what the

court of appeals held that PASPA does; It requires

state legislatures to maintain unpopular laws on the

books, state executives to police those laws, and

(presumably) state judges to enforce them. So

interpreted, PASPA erodes our federal constitutional

design in which both the national and state

governments are presumed to have sovereignty to

regulate in their respective spheres.

Two lines of this Court’s federalism jurisprudence

confirm that Congress, through PASPA, has exceeded

its legitimate powers.

Kirst, this Court’s preemption cases make clear

that Congress can displace state law if—and only if—

it enacts an affirmative federal regime pursuant to

one of its enumerated powers. This Court has never

understood the Supremacy Clause to allow Congress

to prohibit States from repealing their own laws in the

absence of an affirmative federal regime that requires

protection. While PASPA’s prohibition on state

authorizations of sports wagering may bear

superficial similarity to an “express” preemption

clause, every such clause that this Court has

considered was cnacted in support of a federal

regulatory or deregulatory program. See infra pp. __.

PASPA’s naked aitcmpt to regulate the machinery of

state government without enacting a federal rule to

displace contrary state laws is nol a valid exercise in

preemption.

Second, the en bane Third Circuit’s reading of

PASPA violates the Tenth Amendment's core anti-

commandeering principles. It does so by prohibiting

5

States from repealing their own existing laws, which

amounts to a blockade of the State’s ability to return

residual sovereignty to the people—or their delegates

in the legislature—who first consented to the law. If

permitted to stand, the Third Circuit’s decision

threatens the constitutional balance of power between

States and the federal government. For this reason

too, the Court should vacate the decision below and

reinforce the appropriate line between permissible

preemption and impermissible commandeering.

ARGUMENT

I. PASPA Exceeds Congress’s Legitimate Powers

And Usurps Powers Reserved To The States

Under The Tenth Amendment

A. PASPA Is Not An Exercise In Legitimate

Preemption Because Congress Has Not

Enacted An Affirmative Regulatory Or

Deregulatory Scheme

1. This Court has made plain that state-law

preemption, under the Supremacy Clause, occurs only

when the federal government acts to defend the

integrity of its own efforts. This occurs in three

instances. First, Congress might “enact[] a statute

containing an express preemption provision.” Arizona

v. United States, 567 U.S. 387, 399 (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.” /bid.

6

The common thread linking all three forms of

preemption—express, conflict, and field—is the

federal government's affirmative decision to govern

the country directly. See, e.g, Hode/ v. Va. Surface

Min. & Reclamation Ass'n, Inc., 452 U.S. 264, 290

(1981). With conflict or field preemption, the Court’s

analysis turns entirely on the affirmative federal law.

Indeed, the inquiry in each case reduces to whether a

federal law implicitly displaces a state law. Conflict

preemption occurs when, after close scrutiny of the

federal law, the Court concludes either that (1)

compliance with the challenged state law has become

“a physical impossibility,” Arizona, 567 U.S. at 399

(quoting Fla. Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 182, 142-48 (1963)), or (2) the state law

“stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress,” sbid. (quoting Jiines v. Davidowitz, 312

U.S. 52, 67 (1941)). Field preemption, in turn, occurs

when federal law is “so comprehensive|] that it has

left no room for supplementary state legislation.” /.-/.

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

130, 140 (1986).

Although resolution of express-preemption cases

tend to focus on a specific preemption clause—often a

single statutory sentence—the express-preemption

clauses at issue always exist as one part of an

affirmative federal law.” This Court has recognized

“See, e.g., Am. Trucking Aas'ns, Inc. v. City of Los Angeles, Ca.,

133 S. Ct. 2096 (2013) (Federal Aviation Administration

Authorization Act of 1994); Hi/iman v. Maretta, 133 S. Ct. i943

(2013) (Federal Employees’ Group Life Insurance Act of 19654);

Arizona, 567 U.S. 387 (mmigration Reform and Control Act of

7

that express preemption clauses make explicit what is

implicit in conflict or field preemption cases: some

statc laws cannot be reconciled with an affirmative

federal scheme. 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)). In other words, the Supremacy Clause

allows Congress to enact “a statute containing an

express preemption provision” that makes clear which

state laws must give way to the new federal regime

without waiting for a court to make that

determination. Arizona, 567 U.S. at 399 (emphasis

added); see also Easterwood, 507 U.S. at 664 (noting

that a federal statute may “contain[]” an express

preemption clause); Sprietsma, 537 U.S. at 62 (same).

1986); Nat? Meat Ass'n v. Harris, 132 S. Ct. 965 (2012) (Federal

Meat Inspection Act); Kennedy v. Plan Adm’r for DuPont Sav.

and Iny, Plan, 656 U.S. 286 (2009) (Employce Retirement Income

Security Act of 1974); Bates v. Dow Agrosciences, L.L.C., 544

U.S. 431 (2005) (ederal Insecticide, Fungicide, and Rodenticide

Act)i Engine Mirs. 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); Lori//ard

Tobacco Co. v. Reilly, 583 U.S. 525 (2001) (Federal Cigarette

Labeling and Advertising Act); Geier v. Am. Honda Motor Co.,

Inc., 629 U.S. 861 (2000) (National Traffic and Motor Vehicle

Safety Act); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (Medica!

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., 464 U.S. 7 (1983) (Airport and Airway

Development Acceleration Act of 1970); Shaw v, De/ta Air Lines,

Ine., 463 U.S. 85 (1983) (Employce Retirement Income Security

Act of 1974).

8

When added to an affirmative federal law, an express

preemption clause protects the federal scheme from

interference by inconsistent state laws.

Kxpress preemption clauses exist to protect

federal deregulaiory regimes as well as regulatory

regimes. In 1978, for instance, Congress cnacted the

Airline Deregulation Act (“ADA”), which marked a

transition 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 (1992) (Gnternal quotations

omitted). “To 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.” /d. at 378-79

(internal quotations omitted). Similarly, after

Congress “deregulaicd trucking” in 1980, Howe v.

N.H. Motor Transport Ass'n, 552 U.S. 364, 368 (2008),

it passed a law expressly “pre-emptling] state

trucking regulation” in 1994 to ensure that the States

would not “undo federal deregulation,” ‘bid. (internal

quotations omitted).

All of this Court's __ federal-preemption

jurisprudence—whether concerning express, conflict,

or field preemption—underscores that the Supremacy

Clause establishes a rule of priority between federal

and state law. The Constitution, of course,

“establishes a system of dual sovereignty between the

States and the Federal Government,” Gregory v.

Ashcrofi, 501 U.S. 452, 457 (1991), and “[f]lrom the

existence of two sovereigns follows the possibility that

[state and federal] laws can be in conflict or at cross-

9

purposes,” Arizona, 567 U.S. at 398-99. For this

reason, the Supremacy Clause “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.” /d. at 399

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

2. The en banc Third Circuit’s analysis ignores the

necessary predicate that Congress must make an

affirmative decision to regulate (or deregulatc) before

federal law can be found to preempt state law.

Instead, the Third Circuit concluded that

“congressional action in passing laws in otherwise

pre-emptible fields has withstood attack in cases

where the states were not compelled to enact laws or

implement federal statutes or regulatory programs

themselves.” JA 19a. The upshot of the Third Circuit's

analysis is that Congress may preempt statcs from

legislating in an area even if Congress declines to

establish a federal regulatory regime, so long as the

area is “otherwise pre-emptible.” See rbid.

This analysis cannot withstand scrutiny. The very

eases on which the Third Circuit relied—Hode/ and

FERC v. Mississippi, 456 U.S. 742 (1982}—

demonstrate its error. In both Hode/ and FERC,

Congress explicitly chose not to exclude States from

regulating in a particular area, but instead protected

an affirmative federal scheme by conditioning the

States’ participation in the ficld. See Printz v. United

States, 521 U.S. 898, 925-26 (1997) (“In Hode/

we... concluded that the Surface Mining Control and

Reclamation Act of 1977 did not present [a Tenth

Amendment] problem...because it merely made

10

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 standurds.”). By

contrast, PASPA contains no federal standards for

States to consider, but instead prohibits States from

experimenting with their own regulatory schemes.

In short, this Court has never understood the

Supremacy Clause to bestow upon Congress authority

to bar States from acting in “otherwise pre-emptible

fields” when no affirmative feceral regime requires

protection. See JA 19a. Instead of providing Congress

with warrant to prohibit state legislation whenever

and however it desires, this Court’s cases make clear

that the Supremacy Clause may only be used by

Congress when state action risks stymying an

affirmative federal regime. Sec New York, 505 U.S. at

178 (“The Constitution... gives Congress the

authority to regulate matters directly and to pre-empt

contrary state regulation.”) (emphasis added).

For this reason, PASPA’s attempt to prohibit

States from repealing their own sports wagering

laws—without enacting any affirmative federal

regulation concerning sports wagering—is not a

legitimate exercise of preemption under the

Supremacy Clause.

11

B. PASPA Unlawfully Commandeers The States.

PASPA also violates the guarantees to the States

and their citizens provided by the Tenth Amendment

and this Court’s anti-commandeering case law. Under

the Tenth Amendment, Congress may not “regulate

state governments’ regulation.” New York, 505 U.S. at

166. PASPA, however, as interpreted by the en banc

Third Circuit, does precisely that by prohibiting

States (with a few grandfathered exceptions) from

repealing their own sports-wagering bans. ‘This

interpretation fundamentally misapprehends this

Court’s anti-commandeering jurisprudence.

The en bancThird Circuit upheld PASPA because,

in its view, the statute does not “present{] states with

a binary choice—either maintain a complete

prohibition on sports wagering or wholly repeal state

prohibitions.” JA 17a—18a. It concluded that Congress

still left “sufficient room under PASPA to craft their

own policies.” JA 23a. The court declined, however, to

explain exactly which actions, short of a total repea)

of all sports-wagering laws, PASPA would allow.

But the test for commandeering, as established by

this Court, does not depend on whether federal

legislation provides States with more latitude than a

mere “binary choice,” JA 17a. Instead, this Court's

anti-commandeering doctrine operates to ensure that

both the federal and state governments remain

directly accountable for their respective actions. For

that reason, the relevant inquiry is whether Congress

has forced state governments to effectuate federal

policy, thereby obscuring iis own involvement. And

this, of course, can occur even when Congress grants

12

states more than a “coercive binary choice.” JA 23a.

PASPA, for cxample, obscures lines of political

accountability where, as here, it operates to require u

State to enforce complete prohibitions on sports

betting despite the fact that the State, acting through

its citizens, has authorized a partial repeal.

1. PASPA Blurs Lanes Of Political

Accountability That Animate This

Court’s Anti-Commandeering Cases.

a. When drafting the Constitution, the Framers

created a dual-sovereignty structure, which

deliberately eschewed a regime in which Congress

could “employ stale governments as regulatory

agencies.” New York, 505 U.S. at 163. This decision

was deliberate; indeed, that was the structure under

the Articles of Confederation, and “[t]he inadequacy of

th[at] governmental structure was responsible in part

for the Constitutional Convention.” J/bfd. At the

Convention, two proposals “took center stage,” /d. at

164, and the Framers “explicitly chose a Constitution

that confers upon Congress the power to regulate

individuals, not States,” 7a. at 166.

The resulting dual-sovereignty structure drives

the anti-commandeering doctrine’s focus on ensuring

that accountability is properly directed. The Framers

determined that “[t]he new National Government

‘must carry its agency to the persons of the

citizens... {fand] address itself immediately to the

hopes and fears of individuals.” /d at 163 (quoting

The Federalist No. 16, at 116 (Alexander Hamilton)

(Clinton Rossiter ed., 2003)). Likewise, “a State’s

government [would} represent and remain

13

accountable to its own citizens.” Jrintz, 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 US.

Term Limits, inc. v. Thornton, 514 U.S. 779, 838

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

The anti-commandeering doctrine helps preserve

our dual-sovereignty system. It does so by mandating

that both state and federal governments receive the

appropriate credit or blame for their respective

actions, as well as the electoral benefits and burdens

for their governance decisions. If the citizens of a

State do not agree with a certain state policy, for

example, “they may elect state officials 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 [will] suffer the consequences if

the decision turns out to be detrimental or

unpopular.” /bid.

But when Congress forces States to implement

federal policy, the state officials may “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.” /d.

at 169. For this reason, this Court has emphasized

that transparency and accountability animate the

anti-commandeering doctrine. That the States may

have to “absorb the [financial] costs of implementing

a federal progrum” is not dispositive. Printz, 521 U.S.

14

at. 930. Nor does the federal program's importance,

New York, 505 U.S. at 178, or the State’s consent, jd.

at 182, matter. The material inquiry is simply

whether the federal government has positioned the

State to assume any resulting “blame for [the federal

program’s] burdensomeness and for its defects.”

Printz, 521 U.S. at 930.

Although accountability as a _ constitutional

guidepost “may appear ‘formalistic,” the nature of our

Constitution, which places great emphasis on “the

form of our government,” demands it. New York, 505

U.S. at 187. Dual sovereignty, and the accountability

principles that flow from it, are as structurally

important to our founding charter as the limits on

congressional authority. Federalism, indeed, “is one of

the Constitution's structural protections of liberty,”

Printz, 521 U.S. at 921, which delivers critical “double

security” against tyranny and the abuse of power, Jd.

at 922 (quoting The Federalist No. 51, p. 323 (James

Madison)). By preserving this strict separation, “(t]he

different governments will control each other, at the

same time that each will be controlled by itself.” /bid.

b. The en banc Vhird Circuit’s defense of PASPA,

and employment of a novel “coercive binary choice”

test, fails to acknowledge that federal laws blocking

States from considering all policy choices can also

mask accountability, thus running afoul of the anti-

commandeering doctrine. When a State denies a

person a license or permit, the person has no reason

to lay blame with Congress. Rather, barring unusual

familiarity with the U.S. Code, he is more likely to

blame the most obvious culprit: the state official

whom he sought the license from directly.

15

History has recognized the human inclination to

“shoot the messenger.” Sophocles wrote in Antigone

that “[n]Jo 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 “(t]he nature of bad news

infects the teller.” William Shakespeare, Antony and

Cleopatra (c. 1606), reprinted in The Unabridged

William Shakespeare 1135 (William George Clark &

William Aldis Wright eds. 1989). English law

historically punished as traitors those who would take

out their frustration on the town criers who reported

the King’s news. See Top town crier to be crowned as

Hebden Bridge hits 500, BBC,

http:/news.bbc.co.uk/locaYbradford/hi/people_and_p!

aces/arts_and_culture/newsid_8931000/8931369.stm

(last updated Aug. 20, 2010).

Critically, this Court has found irrelevant that a

person may uncover federal government involvement

with a little research. In Printz, for instance, this

Court found that Congress had impermissibly shifted

political accountability to state chief law enforcement

officers (“CLEOs”) when it forced them to conduct

background checks during handgun sales, reasoning

that the person wishing to buy a handgun will sec “the

CLEO and not some federal official” as the one

“stand[ing] between [him] and immediate possession

of his gun.” 521 U.S. at 930. The Court recognized that

“it will likely be the CLEO, not some federal official,

who will be blamed for any error,” even if the error

was plainly caused by the “designated federal

database.” Jbid.

16

In short, if a federal law requires States to retain

and enforce an unpopular state law to advance federal

policy, the federal government has run afoul of this

Court’s anti-commandeering jurisprudence. This is

true anytime the federal government clouds its own

accountability; it simply does not matter if the federal

government allows the States leeway beyond a binary,

unpalatable choice. The Third Circuit’s contrary

conclusion is erroneous and, accordingly, it cannot

stand.

2. Barring States From Repealing Their

Own Laws Raises Particular Tenth

Amendment Concerns.

The most pernicious aspect of the en banc Third

Circuit's decision is that it interprets PASPA as

forbidding the States from repealing their own laws.

In 2013, the Third Circuit panel that first construed

PASPA found that, at minimum, PASPA allowed

States to “repeal!] [their] ban on sports wagering.” JA

158a. Although this opinion was flawed for other

reasons, See /nfra Part __, it at least recognized the

commonsense notion that States have the prerogative

to revisit their own legislation. On en banc review,

however, the Third Circuit held that PASPA barred

even the “selective repeal of certain [state-law]

prohibitions.” JA 23a. From a federalism perspective,

this forced federal ossification of state law ruises two

additional (and fata!) concerns.

a. Any attempt by Congress to freeze in place

existing state laws would violate the people's residual

rights under the Tenth Amendment to recover their

17

powers and liberties by repealing prohibitions that no

longer enjoy popularity.

This residual right of the people to change their

own laws predates the Constitution and permeates

the philosophy of natural rights that animated the

American founding. In the 1600s, John Locke

distinguished between the People’s “Supream [sic]

Power” and the legislature's derivative “Fiduciary

Power.” John Locke, Two Treatises of Government §

149 (P. Laslett ed. 1965). James Wilson, in turn,

explained that Americans possessed the right to

amend or alter the form of their constitution because

“the supreme or sovercign power of the society resides

in the citizens at large.” James Wilson, Lectures on

Law Delivered in the College of Philadelphia, in 1 The

Works Of James Wilson 1, 14 (James DeWitt Andrews

ed., 1896).

The principle that the people have the right to

determine and alter the character of their government

finds it most famous expression in the second

paragraph of the Declaration of Independence, which

proclaims that governments “derivi[e] their just

Powers from the Consent of the Governed.” The

Declaration of Independence para. 2 (U.S. 1776). And

this principle even transcended the Federalist/Anti-

Federalist divide. James Madison repeatedly cited the

people’s “supreme” or “ultimate” authority in his

contributions to the Federalist Papers and explained

that all governmental power derived from and was

responsible to its citizens. The Federalist No. 37, 39,

46 (James Madison), in The Federalist Papers 223,

239, 291 (Clinton Rossiler ed., 2003). The Anti-

Federalist Federal Farmer agreed, writing that the

18

people, as the wielders of “the supreme

power... reserve all powers not expressly delegated

by them to those who govern.” Lettcr from the Federal

Farmer No. 16, in 2 The Complete Anti-Federalist 323

(Herbert J. Storing, ed., 1981).

To be sure, the framers of the Constitution

recognized that the people could delegate their

sovereignty to a properly-constituted government.

But part of what made such delegation legitimate was

the principle that bodies like state legislatures were

ultimately responsible to and agents of the people,

and that the people would have lawful mechanisms to

change the terms of the delegation or reclaim power

altogether. See James Wilson, Lectures on Law

Delivered in the College of Philadelphia, in 1 THE

WORKS OF JAMES WILSON 1, 14-15 (James

DeWitt Andrews ed., 1896). For example, instructions

provided to the drafters of North Carolina's

constitution in 1776 make clear that “[t]he principal

supreme power is possessed by the people at large,

[and] the derived and inferior power by thelir]

servants,” and “{wlhatever is constituted and

ordained by the principal supreme power can not be

... abrogated by any other power, but the same power

that ordained may... abrogate its own ordinances.”

Instructions to the Delegates From Mecklenburg,

North Carolina, to the Provincial Congress at Halifax

(1776), in 1 THE FOUNDERS’ CONSTITUTION 56

(Philip B. Kurland & Ralph Lerner eds., 1987)

(emphasis added). In other words, the people retained

the power to abrogate or repeal ordinances enacted by

their lawful representatives.

19

In the U.S. Constitution, the people expressly

delegated to the federal government, subject to the

constitutional amendment process, the right to enact

laws in certain enumerated areas that would bind the

entire nation and displace contrary state law. See U.S.

Const. arts. I, § 8; V; VI, cl. 2. But the people did not

delegate all of their sovereign power to the federal

government. Rather, the Tenth Amendment provides

that “[t]he 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

reservation of rights, and the division of authority

between the state and federal governments, was

ultimately intended to preserve the ultimaicly

sovereignty of the people. See, e.g, New York, 505

U.S. at 181 (“the Constitution divides authority

between federal and state governments for the

protection of individuals’) (emphasis added); see also

Coleman v. Thompson, 501 U.S. 722, 759 (1991)

(Blackmun, J., dissenting).

While the Constitution is clearer on the allocation

of regulatory authority between the federal

government and the Statcs, the Tenth Amendment is

silent as to who should exercise all reserved power—

the States or the people. See Thornion, 514 U.S. at

847 (Thomas, J., dissenting). Instead, the

Constitution leaves “to the people of each State to

determine which ‘reserved’ powers their state

government may exercise.” /d. at 848.

In other words, the Tenth Amendment protects—

and the remainder of the Constitution does not

disturb—the sovereign right of the people to

20

determine what reserved powers and liberties to

retain for themselves and which to delegate or

constrict. Put differently, the people of each State and

their elected representatives—not Congress—get to

decide whether to enact or repeal legislation in an

area within the State’s reserved powers (so long as the

State’s decision is not contrary to a valid, affirmative

federal regulatory regime).

For this reason, this Court recognizcs that federal

laws should be narrowly construed “when Congress

legislates in an area ‘raditionally governed by the

States’ police powers.” CTS Corp. v. Waldburger, 134

S. Ct. 2175, 2188-89 (2014). This canon of

construction protects the primacy of state power in

areas the Constitution leaves to the States. See Ah Sin

v. Wittman, 198 U.S. 500, 505—06 (1905).

Understanding the principles animating the

Tenth Amendment lays bare the errors in the Third

Circuit’s decision. Properly understood, the Tenth

Amendment enshrines the right of the People,

through their elected state representatives, to recover

their powers or liberties by repealing state laws.

Allowing Congress to cement in place prohibitions

within the State’s reserved powers that citizens have

voted to remove is simply anathema to the reasons

why the Framers thought it necessary to include the

Tenth Amendment in the Constitution.

This case provides a study as to how (absent

PASPA) a State’s citizenry cun cxercise its residual

sovereignty under the Tenth Amendment to recover

their liberties. There can be little doubt that

regulation of sports wagering falls comfortably within

21

the 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 court{s] unless such

legislation [effects] a clear, unmistakable

infringement of rights secured by the fundamental

law.” AA Sin, 198 U.S. at 505-06 (internal quotation

marks omitted).

Acting within this framework, the New Jersey

Legislature, which had historically prohibited sports

wagering, sought out ways in 2010 to financially

bolster its struggling casinos and racetracks. JA 4a

Public hearings ensued, which convinced state

lawmakers that sports wagering might provide a

necessary boost to New Jersey's gaming

establishments. For that reason, the New Jersey

Legislature provided its citizenry, via a 2011

constitutional referendum, the chance to decide

whether the economic benefits of sports gaming

outweighed the perceived drawbacks. /bid. Sixty-four

percent of those who voted decided that the benefits of

sports gaming carried the day. bid.

Because there exists no contrary affirmative

federal regime, New Jersey 00k action comfortably

within the rights and powers reserved to it under the

Tenth Amendment. The Third Circuit’s construction

of PASPA, which (as discussed stove) is unmoored

from the principles underlying federal preemption,

denied New Jersey its right to do so And in so doing,

the Third Circuit handcuffed New versey’s citizenry

by freezing in time prohibitions that no longer make

sense to it.

22

While not all of amici States have actively

considered or attempted to pass sports wagering laws,

nothing in the Third Circuit’s reasoning suggests that

its approach would be limited in future cases. Instead,

the Third Circuit’s reasoning renders uncertain the

extent to which any state electorate may control a

State’s broad police powers free from federal

interference. If allowed to stand, the Third Circuit’s

reading of PASPA could place at the mercy of the

federal government state attempts to experiment with

their respective—and often uniquely local—

approaches to, /nter a/ia, hunting and fishing licenses,

lotteries, concealed-carry permits, speed limits, food

and drug regulations, and even the days on which

alcohol might be sold. ‘Ihe slope is indeed slippery

and, given the threat to liberty that drove the Framers

to enact the Tenth Amendment, the Third Circuit's

interpretation of PASPA cannot stand.

b. In addition, allowing the federal government to

freeze unpopular state laws in place results in

commandeering of state executive brunch officials as

well as state legislatures. The New Jersey

Constitution, for example, affords the State’s law

enforcement officers with no discretion to nullify the

gambling prohibitions that the State finds outdated.

See, e.g., NJ. Const. art. V, § 1, { 11 (‘The Governor

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

Federal commandeering of state executive-branch

officials violates the Constitution just as much as

legislative commandeering. Indeed, “(t]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

23

the... States.” Printz, 521 U.S. at 922. Above and

beyond anti-commandcering concerns, this Court has

recognized that state exccutive-branch

commandeering also offends separation of powers

principles. By allowing Congress to force state

executive branch officials to enforce state prohibitions

in furtherance of a federal legislative anti-sports-

gaming objective, PASPA gives Congress license to

“act as effectively without the President as with him,”

id. at 923, which “shatter[s]” federal “unity” and

“reduc[es]” the power of the Presidency, sbid.

“The 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.” Jd. at 919 (citing The Federalist No. 15).

Thus, “the Federal Government may not compe! the

States to implement, by legislation or executive

action, federal regulatory programs.” /d. 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 is fundamentally

flawed.

3. The Earlier Third Circuit Panel’s

“Affirmative/Negative” Distinction

Likewise Has No Basis In Tenth

Amendment Principles.

It may be tempting for this Court to avoid the

problems inherent in prohibiting States from

selectively repealing their own laws by construing

PASPA consistent with the initial 2013 Third Circuit

24

pancl’s distinction between “affirmative” acts like

compelling a state to issue licenses (which the court

deemed impermissible commandeering) and

“negative” acts like prohibiting States from amending

existing laws (which the court deemed permissible

preemption). JA 157a—160a. But this would be a

mistake. While the affirmative/negative command

distinction may provide some more flexibility to

States than the en banc Third Circuit’s “coercive

binary choice” test, it stil] has no basis in this Court’s

jurisprudence.

The affirmative/negative command distinction

fails to recognize that fedcral laws prohibiting state

action—particularly ones restricting or conditioning a

State’s ability to issue licenmses—can result in

precisely the sort of misplaced blame that the anti-

commandeering doctrine aims to prevent. As noted

above, 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. Rather, the average Amcrican will blame

the state officials who stand between the citizen and

the desired license.

To be sure, New York and Printz did include some

statements spccifically barring Congress from

compelling affirmative state action. See New York,

505 U.S. at 188 (finding it “clear” that Congress “may

not compe] the States to enact or administer a federal

regulatory program”); Printz, 521 U.S. at 933 (same).

But the reason for those seemingly narrow statements

is that the offending federal !aw in both cases required

affirmative state action. Those statements concerned

25

the particular statutes in the two cases and nothing

more.

More important is the fact that the laws at issue

in New York and Printz—as well as any number of

other affirmative commands—could just as easily be

written as prohibitions on state action. Instead of

requiring States to enact certain § regulations

governing the disposal of radioactive waste, as was

rejected in New York, Congress could put limitations

on the ability of States to license the disposal of such

waste. And instead of requiring state law enforcement

officers to conduct background checks during

handgun sales, as in /rintz, Congress could prohibit

those same state officers from issuing handgun

permits if they have not performed a background

check.

This Court thus could not have intended in those

cases to limit the anti-commandeering doctrine to

“affirmative” requirements, as that would have

robbed those decisions of any real meaning. Congress

could continue to govern in exactly the same

objectionable way-—-making States implement a

federal restriction on the activity in question rather

than doing so itseclf—by slightly rewriting the

offending laws. The Third Circuit has no answer to the

general principle that many affirmative commands

can be easily recast as prohibitions.

Ul. Laws Like PASPA Harm States, Their Citizens,

And Our System Of Dual Sovereignty.

If this Court deems PASPA constitutional, it

would greatly expand the federal government’s powcr.

26

Armed with the ability to shift political accountability

to the States, Congress could act without fear of voting

booth repercussions, especially in controversial issues

likely to spark the most vociferous political response.

The threat to state sovereignty cannot be

countenanced.

Under the Third Circuit's analysis, Congress

could, for instance, bar American children from

playing football, in response to burgeoning concerns

regarding the sport's long-term effect on the brain.

Rather than risk the political fallout likely to result

from restrictions on a sport that embodies Americana,

Congress could simply prohibit States from licensing

youth football leagues. Similarly, 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 so doing, the

resulting backlash due to new invasions of privacy

would fall not on Congress but on the States. This is

true even if a particular State would have decided to

act otherwise.

The U.S. Constitution prohibits Congress from

skirting its accountability in this fashion. In these

examples (us 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

as in Printz, there would be lcgitimate concerns about

misplaced blame despite the high-profile nature of

these issues and the ease with which a person may

discover the main driver of the relevant laws.

27

The genius inherent in our dual sovereign lies in

the States’ ability to act as a catalyst for change or a

voice of dissent. Indeed, our system “promotes

innovation by allowing for the possibility that ‘a single

courageous State may, if its citizens choose, serve as

a laboratory; and try novel social and economic

experiments without risk to the rest of the country.”

Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, 2J.,

dissenting) (quoting New State Ice Co. v. Liebmann,

285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)). If

Congress disagrees (and assuming it has the requisite

Article I authority), it may establish a federal 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.

Unless and until Congress does so, this Court’s

jurisprudence makes plain that the States have power

Lo govern as they see fit. The Third Circuit’s contrary

view, which invites Congress to avoid taking

ownership and allows it to force the States to advance

preferred federal policy positions, cannot be reconciled

with this Court’s case law or the principles animating

it. Because our federal system does not permit what

the Third Circuil’s analysis would allow, this Court

cannot let that decision stand.

CONCLUSION

For the foregoing reasons, the Court should

reverse the judgment below.

28

Respectfully submitied,

PATRICK MORRISEY

Attorney General

‘THOMAS M. JOHNSON, JR.

Deputy Solicitor Genera!

Counsel of Record

EDWARD M. WENGER

Genera! Counsel

OFFICE OF THE

ATTORNEY GENERA!.

State Capitol

Building 1, Room E-26

Charleston, WV 25305

TJohnson@wvago. gov

(304) 558-2021

Counsel for Amucus Curtae

State of West Virginia

SEPTEMBER 5, 2017

MARK BRNOVICH

Attorney General

State of Arizona

PAMELA JO BONDI

Attorney Genera!

State of Florida

CuRTIs T. HILL, JR.

Attorney Genera]

State of Indiana

DEREK SCHMIDT

Attorney Gencral

State of Kansas

JEFF LANDRY

Attorney Genera]

State of Louisiana

JIM Hoop

Attorney General

State of Mississippi

JOSHUA D. HAWLEY

Attorney Genera!

State of Missouri

DOUGLAS J, PETERSON

Attorney General

State of Nebraska

GORDON J. MACDONALD

Attorney General

State of New

Hampshire

WAYNE STENEHJEM

Attorney General

State Of North Dakota

MICHAEL DEWINE

Attorney Genera!

State of Ohio

MIKE HUNTER

Attorney General

State of Oklahoma

PETER F, KiLMARTIN

Attorney General

State of Rhode Island

HERBERT H. SLATERY

IT]

Attorney General and

Reporter

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney Genera)

State of Utah

PETER K. MICHAEL

Attorney General

State of Wyoming

MATTHEW G._ BEVIN

Governor

Commonwealth of

Kentucky

Through counsel

Mark Stephen Pitt

General Counsel

Office of the Governor

of Kentucky

State Capitol, Suite 101

700 Capitol Avenue

Frankfort, KY 40601

(502) 564-2611

steve.pitt@ky.gov

LAWRENCE J. HOGAN,

JR.

Governor

State of Maryland,

Individually through,

Robert F. Scholz, Fisq.

Chief Legal Counsel

Office of the Governor,

State of Maryland,

State House

100 State Circuit

Annapolis, Maryland

21401

Phone: (410) 974-3005

Fax: (410) 974-2077

Robert.Scholz@Maryla

nd.gov

DoUG BURCUM

lovernor

State of North Dakota

Through counsel

Leslie Bakken Oliver

General Counsel

Office of the Governor

of North Dakota

State Capitol, 600

Boulevard Avenue

Bismarck, ND 58505-

0001

(701) 328-2204

lboliver@nd.gov