President Andrew Jackson has been famously rumored to have responded to a Supreme Court decision denying his use of executive power, "John Marshal has made his judgment, now let him enforce it." Governor Chris Christie of New Jersey seems to have adopted this approach, acting to circumvent a 1992 federal law by deregulating sports betting in casinos and racetracks effective immediately in the State of New Jersey. Although it is unclear how long his executive proclamation will remain in effect, this is the latest in New Jersey's effort to legalize sports gambling.
New Jersey Sports Gambling Law Invalidated
As we first reported in New Jersey Sports Gambling Law Suffers a Setback, in 2013, the United States District Court for the District of New Jersey struck down New Jersey's sports gambling law on the grounds that it was inconsistent with federal law. Specifically, the proposed 2012 New Jersey State sports gambling law was held to be in direct conflict with the 1992 federal Professional and Amateur Sports Protection Act (PASPA). In New Jersey Governor Christie Loses Appeal to Legalize Sports Gambling, we reported that the Third Circuit Court of Appeals affirmed the decision of the lower district court and stated that:
"We are cognizant that certain questions related to this case — whether gambling on sporting events is harmful to the games' integrity and whether states should be permitted to license and profit from the activity — . . . . But we are not asked to judge the wisdom of PASPA or of New Jersey's law, or of the desirability of the activities they seek to regulate. We speak only to the legality of these measures as a matter of constitutional law. . . . New Jersey's sports wagering law conflicts with PASPA and, under our Constitution, must yield."
The Supreme Court of the United States subsequently declined to hear the State of New Jersey's appeal from the Third Circuit Court of Appeals.
New Jersey Legalizes Sports Gambling Anyway
Relying on language in the Third Circuit opinion, New Jersey has decided to allow casinos in the state to offer sports gambling. Specifically, New Jersey's attorney general wrote, "[t]he Third Circuit made clear that it did 'not read [the federal Professional and Amateur Sports Protection Act] to prohibit New Jersey from repealing its ban on sports wagering.'" Based on that and similar language, the New Jersey attorney general stated:
For the foregoing reasons, it is the view of the Attorney General that, at least, the provisions of the [New Jersey] Sports Wagering Act exempting casinos and racetracks from criminal liability for opening a sports pool . . . remain in force and effect, and all law enforcement and prosecuting agencies in carrying out their duties under the laws of the State of New Jersey shall abide by that exemption.
Christie's new approach was initially suggested by New Jersey State Senator Ray Lesniak in early July of this year. As Lesniak suggested then, while anyone can sue to challenge a law, "they can't challenge our lack of a law." Accordingly, it will now be up to the federal government to decide if it wants to enforce its sports betting prohibition in the State of New Jersey.
Impact of New Jersey's Decision
Major professional sports leagues have already confirmed that they are likely to go back to court to prevent New Jersey from taking this unprecedented step. We will continue to keep you posted on further developments.
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