By KrisAnne Hall, JD

In a baby step back toward protecting reserved state powers, the U.S. Supreme Court on Monday overturned a 25-year-old federal law called The Professional and Amateur Sports Protection Act (PASPA). The Act was originally signed into law in 1992 to target organized markets for sports gambling. This federal law was not a flat ban on sports-gambling schemes, but only a law that prohibited States from permitting sports gambling by State law.

In an opinion written by Justice Alito, the majority of the court decided this law was a violation of the Tenth Amendment to the Constitution. Alito says, “The legislative powers granted to Congress are sizeable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms.” The Tenth Amendment limitation is referred to by the court as the “anti-commandeering doctrine.”

The people of New Jersey want to legalize sports gambling but PASPA makes it illegal for States to legalize any “sports gambling schemes.” The people of New Jersey argued that this federal law infringed upon the State’s sovereign authority. The State relied upon two cases; New York v. US (1992) and Printz v. US (1997) that struck down federal laws that imposed improper regulatory powers upon the States. In Printz v. US, the Supreme Court used Federalist Papers 39 as support for their opinion in which James Madison explained:

“[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

In these cases, the Supreme Court recognized that there are separate and independent jurisdictions that exist within the two sovereign spheres of government; the State and the Federal. When the power has not been delegated to the Federal government, that power remains with the State and outside of the Federal government’s power to impose laws upon the State. Following this same standard, established by the Tenth Amendment in the Constitution, Justice Alito and the majority recognized the State’s authority to regulate gambling lies within the sovereign realm of the state’s authority and that Congress directing state legislatures to prohibit sports gambling is not an enumerated power delegated by the Constitution to the federal government. Alito wrote:

“The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”

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It is refreshing to see the Supreme Court return to this fundamental and essential truth; that the States are independent sovereigns and the federal government can only lawfully exercise powers that have been properly delegated. This Court also recognized the constitutional principle of the sovereignty of the States in NFIB v. Sebelius when Chief Justice Roberts, writing the majority opinion said:

“In the typical case we look to the States to defend their prerogative by adopting ‘the simple expedient of not yielding’ to federal blandishments when they do not want to embrace federal policy as their own. The States are separate and independent sovereigns. Sometimes they have to act like it.”

Although this is just a small step, Alito and the majority court may be steering the federal government back in the proper direction; one not only required by the Constitution but also by those who wrote it. Alexander Hamilton makes this very clear in Federalist #78:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”

Hamilton is explaining in this text that for a federal law to be valid, it must not only comply with the text of the Constitution, it must also be consistent with the “tenor of the commission under which it is exercised.” The Constitution requires adherence to the intent of the drafters as well as the words of the document. In a display of adherence to this intent, Justice Alito quotes the Declaration of Independence and Madison’s Federalist #39 in his majority opinion to once again remind the people and their Congress that the States are sovereign.

“When the original States declared their independence, they claimed the powers inherent in sovereignty — in the words of the Declaration of Independence, the authority ‘to do all…Acts and Things which Independent States may of right do’…the States…retained ‘a residuary and inviolable sovereignty.’”

However, one point Alito seems to miss in his opinion is that the power to regulate gambling is not a power that is delegated at all to the federal government. He claims that “[c]ongress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” In this broad assertion of power, Alito actually sides with Justice Ginsberg and the dissent; that the federal government is realistically unlimited in its exercise of power. Justice Thomas, in his concurring opinion, is the only Justice who denies this assertion of unlimited authority:

“Unlike the dissent I do “doubt” that Congress can prohibit sports gambling that does not cross state lines.”

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Indeed, you may search the entire text, you may scour the writings of the drafters of the Constitution, but you will never find an authority delegated to the federal government to regulate such activity. The assumed authority to do so comes from an interpretation of the Commerce Clause, in which the federal government stretches the meaning and application way beyond the “tenor of the commission” of the Constitution. As Madison explained in 1792, during the Cod Fishery debate, the clauses within the Constitution are not powers delegated at all; they are merely explanations of “the purpose of the powers which are delegated.” These clauses were never intended to be boilerplate blank checks written to Congress to create whatever law they could somehow justify. Madison issues a very stern warning against using these clauses for that purpose.

“…for if the clause in question really authorizes Congress to do whatever they think fit…it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America.”

What Alito suggests is that the powers of the federal government are not limited by the Constitution, but by mere will enforced by interpretation of clauses. Alito seems to only differ from the dissent in policy but not in principle. However, as Alito does assert in his opinion, the Tenth Amendment is very clear: “The 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.” However, his final statements seem to assert that there are no reserved powers that rest within the States.

What Alito is really saying is that all power exists within the federal government and anything the feds choose not to use, is then “available” to be exercised by the States. Alito’s claim then becomes the very manifestation of Madison’s warning, transmuting the limited nature of the federal government to one that is limited only by its own interpretation and desire for power. Alito is not supporting a Constitutional Republic, but an unlimited federal kingdom that grants permissions to its vassal colonies — the states.

There should be no doubt as to the limited authority of the federal government. There should be no doubt as to the reserved powers and sovereignty of the States. Both are well documented within the Constitution and in the drafters’ explanations of the Constitution. However, this fundamental and essential principle necessary for the existence of our Constitutional Republic still eludes too many of our justices who claim the federal government can regulate the lives of the citizens in whatever manner they choose, as long as they can create an articulate justification and manipulate the Constitution, irrespective of the tenor in which it was written.

It is a step in the right direction to see the Court once again asserting the Sovereignty of the States. However, what is the real difference between the majority and minority opinions when they both support an unlimited congressional authority over the people and left over power for the States?

KrisAnne Hall is a former biochemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com.

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