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Old 02-03-2013, 11:43 AM   #126
tangled
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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Originally Posted by tamiller866 View Post
The Christian Science Monitor published an article today praising the DOJ's brief; http://www.csmonitor.com/Commentary/...uper-Bowl-odds

They echo the DOJ saying “Congress is not limited to addressing purely economic matters – it also may seek to remedy social or moral concerns that substantially effect
interstate commerce,” which is true, Congress has done exactly that in areas such as child pornography.

But PASPA doesn't make sports betting illegal the way possessing child pornography was made illegal, PASPA doesn't regulate economic nor moral concerns, it regulates State governments.

As the DOJ noted in the DPPA case, Congress can regulate the States in rare circumstances, but only when the rational basis for doing so is to protect a constitutional right such as privacy, and while the leagues may be considered 'America's pastime', the Constitution would need to be amended to give them any protection from State regulation not afforded to every citizen.

PASPA does not extend the same rights to all citizens even within it's own language, Congress extends rights to professional leagues while individual professional athletes such as boxers are given no protection from the supposed evils of match fixing and corruption.

Even if Congress could invent a new constitutional right for sports leagues to be protected from States, they would need to extend that protection over all States, the grandfather exception under PASPA is the constitutional equivalent of equating State authorized sports betting to State authorized slavery - then declaring it acceptable for the States already dependent on slave labor.
I think I done gone down the rabbit hole. I thought that was the argument I made in an earlier post, and was promptly thumped by you.
----
In effect, the DOJ has to make the argument that sports betting is bad - but not really, really bad: bad enough that Congress has the right to usurp a traditional states' right, but not bad enough that it can't give a few exceptions to some special states.

And even if they clear that hurdle: Who died and made Nevada et.al. special? For all time?
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Old 02-03-2013, 11:56 AM   #127
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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I had many of the same thoughts when reading the gov't's brief last night. The simple fact is that the law allows certain states to benefit from sports betting while denying that right to other states. Hopefully the Court will get hung up on this.

Shipp has a good resume, but he has not struck me as a great thinker. He seems to try to take the easy way out and likes to avoid making tough decisions. My feeling is that he's not the kind of judge who will declare a somewhat hot button federal law unconstitutional. I hope I am wrong about him and that he and his clerk give these motions the scrutiny they deserve.
Agree on both counts, on one hand, it's obvious to a middle school civics student that the forest of State's rights had to be torched by Congress in order to make the unequal path which PASPA creates, but on the other, if the government can keep the court focused on the individual trees, Shipp won't be able to cite a past precedent to rule the statute unconstitutional.

Olsen needs to take the focus off of what this statute does (prevent States from raising revenue from sports betting) and bring it on the precedent this Statute creates, Congress could literally prevent States from authorizing any new technology if PASPA is upheld.

Upholding a statute that blocks sports betting is politically easy, upholding a statute whose precedent would prevent States from authorizing things like driverless cars - while allowing States like NV who have already passed their authorization to have them - might seem more absurd.

If there is a rational basis for banning driver-less cars which is so vital as to justify commanding States not to authorize them, health and safety e.g., then the thought of allowing NV citizens to continue riding around in them would be preposterous - but that's the precedent the court would be setting by upholding PASPA.
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Old 02-03-2013, 12:09 PM   #128
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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I think I done gone down the rabbit hole. I thought that was the argument I made in an earlier post, and was promptly thumped by you.
----
In effect, the DOJ has to make the argument that sports betting is bad - but not really, really bad: bad enough that Congress has the right to usurp a traditional states' right, but not bad enough that it can't give a few exceptions to some special states.

And even if they clear that hurdle: Who died and made Nevada et.al. special? For all time?
I'm sorry if it came off like I was 'thumping' you, I never disagreed with your point - PASPA really is absurd, I just wanted to emphasize that PASPA is so absurd that there is no precedent for it's absurdity, it might actually survive NJ's challenge because of it's absurdity.

As long as no one in the court room notices the giant elephant of State sovereignty, so long as everyone forgets that before the supreme court ever created protected classes that the Constitution created one and called it States, PASPA could stand regardless of our opinions of it.
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Old 02-03-2013, 02:29 PM   #129
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I'm sorry if it came off like I was 'thumping' you, I never disagreed with your point - PASPA really is absurd, I just wanted to emphasize that PASPA is so absurd that there is no precedent for it's absurdity, it might actually survive NJ's challenge because of it's absurdity.

As long as no one in the court room notices the giant elephant of State sovereignty, so long as everyone forgets that before the supreme court ever created protected classes that the Constitution created one and called it States, PASPA could stand regardless of our opinions of it.
I will take my chances with Ted Olson in the box for NJ.
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Old 02-03-2013, 02:50 PM   #130
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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I will take my chances with Ted Olson in the box for NJ.
Really? You'd take Ted Olson over tamiller866? Astonishing.
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Old 02-03-2013, 02:52 PM   #131
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

haha here we go!
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Old 02-03-2013, 03:15 PM   #132
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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Originally Posted by DonkeyQuixote View Post
I will take my chances with Ted Olson in the box for NJ.
I said the same thing yesterday -

Quote:
Brad Polizzano ‏@taxdood

@SportsLawProf @GamingCounsel @tamiller866 @G_Finan @DarrenHeitner Va. Mining, cited for: w/o req affirmative State action, OK under 10th

TA Miller ‏@tamiller866
@taxdood @SportsLawProf @GamingCounsel the statute regulated private individuals and businesses, did not regulate the "States as States."

Brad Polizzano ‏@taxdood
@tamiller866 @SportsLawProf @GamingCounsel Doing NJ's "work" for them

TA Miller ‏@tamiller866
@taxdood @SportsLawProf @GamingCounsel I'm quite confident Ted Olsen will articulate the argument better than I ever could
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Old 02-07-2013, 12:22 PM   #133
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

California lawmakers again consider legalizing sports betting [latimesblogs.latimes.com]
A lawsuit is challenging the federal law, and Congress is considering a bill to allow sports betting in some states, but the Republican analysis says the challenges are "great" to remove all the obstacles, including opposition from professional sports leagues that fear it will lead athletes and others to cheat.
(emphasis added).

"...Congress is considering a bill to allow sports betting in some states..."

Has anyone heard about this???
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Old 02-07-2013, 01:00 PM   #134
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

There was a bill introduced last year but it never made it out of committee, I think the idea was just to pressure State legislatures by saying 'Congress might open up a new window, so we need to pass our State bill so we don't miss the opportunity the way NJ did in 1993'.

H.R. 3797 (112th): Sports Gaming Opportunity Act of 2012
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Old 02-07-2013, 02:03 PM   #135
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

Thanks TA, I'd forgotten about that bill.
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Old 02-09-2013, 02:45 AM   #136
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

NJ issued it's response today, I haven't read the full brief but some excerpts are posted here:
NJ Attorney General’s office comes out swinging against US Dept of Justice backing of sports betting law
Quote:
“PASPA is a very unusual statute. It purports to implement a federal policy aimed at stopping the spread of sports wagering by commanding States to implement that policy at their expense and with their authority, but it exempts certain favored States, and has allowed a vast and uncontrolled illegal sports gambling industry massively greater than when PASPA was enacted, which the States are helpless to restrict or oversee. PASPA is an unconstitutional monument to the laws of unintended consequences.”
The problem I have with this attack is that the monument has stood for more than twenty years, so while everyone recognizes that what was supposed to represent a giant peach actually bears more resemblance to a giant ass (House of Cards), unless it causes some tragic impact, correcting mistakes already woven into the culture becomes a political/legislative dilemma.

Hopefully they are saving ammunition for oral arguments, the 'tragedy' of NJ not being able to capitalize on sports betting may not be enough to convince Judge Shipp to take a bold stance against PASPA, but the precedent he would be setting by allowing PASPA to stand - Congress could essential pick the 'winning' State(s) of every developing industry going forward - could be sufficient to persuade him.

Last edited by tamiller866; 02-09-2013 at 02:54 AM.
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Old 02-10-2013, 03:38 PM   #137
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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Originally Posted by tamiller866 View Post
There was a bill introduced last year but it never made it out of committee, I think the idea was just to pressure State legislatures by saying 'Congress might open up a new window, so we need to pass our State bill so we don't miss the opportunity the way NJ did in 1993'.

H.R. 3797 (112th): Sports Gaming Opportunity Act of 2012
Lobiondo represents my area. I do believe he and another congressman were working together on this bill. Also, Lobiondo introduced a similar bill in which it would specifically carved NJ out of PASPA since they did pass their own sports betting law. I'm not sure if he will reintroduce this bill again or not.
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Old 02-12-2013, 11:21 AM   #138
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

Having read New Jersey's brief I'm even less impressed than I was by the excerpts, for example their response to the DOJ's citation of Reno v Condon failed to point out the primary difference between the DPPA and PAPSA, the DPPA regulated States with preemptive rules they must abide regarding privacy, whereas PAPSA makes it unlawful for States to "authorize by law" sports betting.

Congress isn't preempting State regulations under PASPA, they are specifically commanding States not to legislate a certain way, flagrantly commandeering, but the court could do an Obama-Care style bailout and reconstruct PAPSA in the form of preemptive regulations to find it constitutional.

The real question isn't whether PASPA violates the Tenth Amendment, as it clearly does, rather as SCOTUS has held in Eleventh Amendment cases, the problem with PAPSA is that the Commerce Clause alone isn't justification for violating States rights.

Ironically, the same year Congress passed PASPA they also enacted the Patent Remedy Act to eliminate the 11th Amendment immunity for States regarding claims of patent infringement, which was struck ruled unconstitutional by SCOTUS several years later.

"Congress may not abrogate state sovereign immunity pursuant to its Article I powers; hence the Patent Remedy Act cannot be sustained under either the Commerce Clause or the Patent Clause."

SCOTUS held that while Congress has the authority to abrogate State sovereignty, upholding intellectual property rights didn't justify that abrogation, the court held that Congress must be acting to deter or remedy a constitutional violation to justify abrogation;

"`[a]s broad as the congressional enforcement power is, it is not unlimited,'" ibid., and held that "Congress does not enforce a constitutional right by changing what the right is. It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation,"

The problem with PASPA isn't what it impedes the States from doing - authorizing sports betting - the problem is the 'constitutional violation' it invented (the right of sports leagues not to have their image tainted by sports betting) to justify the remedy.

Just as SCOTUS found patent rights not to be sufficient to justify abrogation of State sovereignty, so too should the court find 'sports leagues anti-defamation' rights insufficient to justify both the commandeering of the State legislative process and the abrogation of State sovereignty.
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Old 02-12-2013, 11:26 PM   #139
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

One more comment regarding the PRA precedent, from the ruling:

Quote:
The statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime. These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe.
The words 'patent infringement' could be directly substituted with the words 'the spread of corruption in professional and amateur sports';

"The statute's apparent and more basic aims were to provide a uniform remedy for the spread of corruption in professional and amateur sports and to place States on the same footing as private parties under that regime. These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe."

Without voting, privacy or some other constitutionally protected right being deprived by States authorizing sports betting, Congress does not have the authority to treat the State of New Jersey as if it were a private casino.

New Jersey's brief repeatedly refers back to it's right to raise revenue, but that right is not absolute as cited by the DOJ in Reno v Condon, it isn't the remedy (depriving States of revenue) that is unconstitutional, it is the lack of constitutional justification for the extreme remedy that makes PASPA unconstitutional.

The fact that PASPA rewards those States which had previously been violating the 'right' of sports leagues to be protected from corruption with a perpetual monopoly to continue doing so is merely a symptom of PASPA's constitutional illness, the attempt to create such a 'right' is the actual disease.
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Old 02-13-2013, 04:33 PM   #140
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

http://lobiondo.house.gov/press-rele...ing-new-jersey

Looks like I was right about this. Not sure how far this will go but the first time around those bills died and never made it out of commitee.
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Old 02-13-2013, 07:07 PM   #141
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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Originally Posted by MrAce777 View Post
http://lobiondo.house.gov/press-rele...ing-new-jersey

Looks like I was right about this. Not sure how far this will go but the first time around those bills died and never made it out of commitee.
Last session's bill never even had a hearing... hopefully things change this time around. It is interesting that this bill is being introduced a day before the hearings in NCAA v. Christie
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Old 02-14-2013, 03:02 PM   #142
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

The hearing is going on now. Updates provided by:

Griffin Finan ‏@G_Finan
Joe Brennan Jr ‏@joebrennanjr
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Old 02-14-2013, 04:55 PM   #143
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

It sounds like the State has had the better of the argument, but I have little confidence in this judge to declare a statute unconstitutional.
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Old 02-14-2013, 06:25 PM   #144
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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It sounds like the State has had the better of the argument, but I have little confidence in this judge to declare a statute unconstitutional.
It's hard to predict what a court/judge is going to do, after the ACA oral arguments I would have bet the individual mandate was toast given the questioning, but we know what happened there.

I'm not willing to bet on this one, but given the one question the judge asked after recess was exactly on the point Olsen was making - PASPA isn't gambling regulation it is State abrogation - I predict that Shipp has decided to rule PASPA unconstitutional.

His question was whether PASPA would preempt State regulation of sports betting, the DOJ bit hook line and sinker responding 'no one is arguing preemption'.

The problem with that answer is that the question implies that Shipp wanted to understand the DOJ's involvement in the case, are they defending a Federal ban on sports betting which is being ignored by New Jersey, or are they acting as no more than co-counsel for the private leagues?

If the DOJ isn't in the court room to enforce a preemptive Federal law, then this is merely private parties suing a State in Federal court, in violation of the 11th amendment.

The brilliance of Olsen is that he didn't even argue sovereign immunity, giving the leagues just enough line to take the bait in their 10th amendment justification, the leagues plainly said they didn't oppose sports betting, they only opposed State regulated sports betting.

So after a recess Shipp asked one question, essentially, 'What are you doing in my court room?' though the DOJ apparently didn't make that inference, Olsen led the judge to water and he drank, so I'll be ACA-like shocked (again) if he doesn't rule against the leagues.
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Old 02-14-2013, 06:57 PM   #145
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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It sounds like the State has had the better of the argument, but I have little confidence in this judge to declare a statute unconstitutional.
Those tweets might be a bit biased
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Old 02-14-2013, 09:31 PM   #146
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

Looking at the tweets, a lot is being made about the NJ 1-year exception: the idea that NJ has the least to complain about. But if you think that argument through, that exception is even more discriminatory for NJ, not less:

If that exception is the cause of NJ losing this lawsuit, then, presumably, the other 45 states could regulate sb, the 4 grandfathered states can also, so NJ -singularly - would be left out in the cold - because - of the 1 year exception.

Dang, I should have been a lawyer.
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Old 02-15-2013, 01:04 AM   #147
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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Looking at the tweets, a lot is being made about the NJ 1-year exception: the idea that NJ has the least to complain about. But if you think that argument through, that exception is even more discriminatory for NJ, not less:

If that exception is the cause of NJ losing this lawsuit, then, presumably, the other 45 states could regulate sb, the 4 grandfathered states can also, so NJ -singularly - would be left out in the cold - because - of the 1 year exception.

Dang, I should have been a lawyer.
Odd as it might seem, the discrimination by PASPA is one thing clearly constitutional under the Commerce Clause, so long as it has a rational basis for the discrimination.

Congress could have barred casinos outside of Nevada from offering sports betting by simply amending the IGBA, making gambling businesses taking sports bets illegal without the requirement that they be in violation of State law, then made a specific exception for Nevada as they made for Indiana under the Johnson Act.

Politically it would have looked more discriminatory, but it would have been Constitutional, the problem with doing it constitutionally is that it wouldn't have accomplished it's true purpose - to keep States themselves (lotteries) from offering drawings related to sporting events.

The only way to ban lotteries (States) from offering sports betting constitutionally would be to make sports betting itself a crime, and Congress would never have the political will to pass a bill that would have made everyone in both chambers who fills out as much as an office pool guilty of a Federal crime.

So instead Congress developed this elaborate scheme under which sovereign States are actually placed on a lower footing than a private casino as related to litigation from the leagues, and private underground (unlicensed) bookies are irrationally granted immunity from the same litigation.

Some scholars argue that because PASPA made it optional for the DOJ itself to bring the suit, that the suit by the leagues is constitutional, but offering up the Attorney General to provide counsel for an unconstitutional lawsuit actually makes PASPA even more flagrant of a constitutional violation.

Not only does PASPA grant the private leagues a special right to sue States available to no one else (including the Tribes living in the States), it grants them the special privilege of having that right optionally enforced for them by the US Attorney General to create the illusion of Supremacy Clause invocation.
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Old 02-15-2013, 01:07 AM   #148
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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It's hard to predict what a court/judge is going to do
My opinion is not based on the argument; it is based upon my experiences with Judge Shipp. I hope he proves me wrong!
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Old 02-15-2013, 06:10 AM   #149
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

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My opinion is not based on the argument; it is based upon my experiences with Judge Shipp. I hope he proves me wrong!
I was thinking the same way before the hearing, but the way Olsen led Shipp into figuring out for himself what the Constitutional problem is with PASPA - rather than trying to force feed him as most lawyers would - left me hopeful that Shipp may just want to have his name on the right side of history in this case.

Ruling PASPA constitutional would set the precedent that Congress could authorize anyone to enjoin States from passing legislation based on a mere 'rational basis', they could authorize the automotive industry to sue States to prevent competition from new technology e.g.

Worse, the grandfathering precedent would pressure States into rushing to authorize every new technology that develops in order to avoid being shut out, States could be putting driverless automobiles on the road or someday perhaps teleporters online without proper testing just to ensure they don't get PASPA'd by Congress.

Attorneys become judges for just these types of cases, to be able to say that Congress was steering the nation down a slippery slope, but they made the right ruling to prevent it.
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Old 02-15-2013, 08:15 AM   #150
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Re: It's on! NCAA, MLB, NBA, NFL & NHL file suit against New Jersey

Article in today's Star Ledger:

http://www.nj.com/politics/index.ssf..._river_default
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