Judge Shipp declared;
Quote:
“Congress has chosen through PASPA to limit the geographic localities in which sports wagering is lawful. It does no more or less. The Court, therefore, cannot conclude that PASPA usurps State sovereignty".
Olson argued that PASPA did do more by ordering States not to pass a specific type of law, which may be debatable, but PASPA certainly does do less - which is the real reason that it's unconstitutional - rather than the 'commandeering' argument put forth by Olson.
PASPA doesn't limit the localities in which sports wagering is lawful, it only limits the localities where State regulated and/or taxed sports wagering is unlawful.
If Congress had also made it unlawful for private citizens and businesses to wager on sports, then PASPA would be the general application statute Judge Shipp is incorrectly declaring that it is, but the only thing making it unlawful for private citizens to conduct sports wagering is current NJ state bookmaking laws.
I don't actually blame Judge Shipp, NJ argued the wrong discrimination, the problem with PASPA isn't the unequal treatment of States, the problem with PASPA is that it treats States as a lower class of citizen than private individuals, businesses, and even organized crime within it's own borders.
NJ could act tomorrow to repeal its own bookmaking laws, casinos could then begin taking sports wagers and there wouldn't be anything the DOJ could do to stop them, as they wouldn't violate a required predicate State law for an Illegal Gambling Business Act violation.
Therefore PASPA is not a general application statute, and unlike the Voting Rights Act, Congress has no Fourteenth Amendment justification available for the strict (rather than rational basis) standard of scrutiny required to place some States on a lesser footing than other States or private individuals.
Perhaps Olson was saving some ammunition for appeal, having forced the DOJ and the leagues to empty their barrels defending his commandeering argument, he forced the DOJ to cite Reno v. Condon as precedent for a statute not 'commandeering' so long as it didn't force the State to take any action, but SCOTUS proffered in dicta that the DPPA would have itself been ruled unconstitutional if it only applied to State commerce of drivers license information.
The DPPA however also restricted private individuals as resellers from the commerce of drivers license information, making it a general application statute, Reno didn't prevail because the court held a 'rational basis' sufficient to place States on a lower footing than private individuals, the DPPA was upheld precisely because it treated States and private businesses equally - a test Judge Shipp failed to administer, but which PASPA blatantly fails.