Posted with permission from Above The Law

Have you heard the one about the 12-year-old that walked into a casino and legally placed a sports bet?

No, that’s not the start of a Roy Moore joke.

It’s actually a real scenario that Deputy Solicitor General Jeffrey B. Wall advocated for to the United States Supreme Court. He did so while attempting to defend the constitutionality of the Professional and Amateur Sports Protection Act (“PASPA”) during oral arguments last week in the consolidated cases, Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Association v. NCAA in which New Jersey seeks to overturn the federal prohibition against state-regulated sports betting.

In one of the more dramatic moments of the hearing, Wall — the same guy tasked with defending Trump’s “travel ban” — argued that the federal government was not commandeering the state’s power because New Jersey could repeal all prohibitions on sports gambling. This is known as the nuclear option.

In other words, PASPA is constitutional because although states cannot “sponsor, operate, advertise, promote, license, or authorize” sports betting it can just wipe all laws off the book and have a completely unregulated, Wild West-style sports betting market where children could spend their allowances on parlays.

The Court was not buying it.

CHIEF JUSTICE ROBERTS: What if the repeal — what if the repeal is across the board, no exceptions?

MR. WALL: If New Jersey just repeals its prohibitions, we have said we don’t have a problem with that.

CHIEF JUSTICE ROBERTS: Well, is that serious? You have no problem if there’s no prohibition at all and anybody can engage in any kind of gambling they want, a 12-year-old can come into the casino and — you’re not serious about that.

MR. WALL: I — I’m very serious about it, Mr. Chief Justice. The problem that Congress was confronting was state sponsored and sanctioned sports gambling schemes. It didn’t care if I bet with my buddy on the Redskins game or we had an office pool. It wasn’t going after all sports gambling.

CHIEF JUSTICE ROBERTS: Well, but when you put the state in a position that that’s the only thing they can do, that’s not a real choice.

The argument transcript (on the next page) does not do this exchange justice.  Fortunately, there is audio of it for future generations to marvel over how the Trump administration’s support for the nuclear option might have actually killed the sports leagues’ quest to prevent sports betting outside of Nevada. 4-D chess, am I right?

What makes Wall’s support for the nuclear option even stranger is that the federal government was not a party to this litigation. PASPA grants professional and amateur sports organizations the same powers as the U.S. Attorney General to file for a civil injunction to stop any perceived violations of PASPA.

It was the NCAA, NFL, NHL, NBA, and MLB that commenced this litigation six years ago under the guise of protecting the integrity of their games.  This was, of course, before the NFL, NHL, and NBA-backed WNBA decided to put teams in Las Vegas. This was also before the explosion of daily fantasy sports.

Unfortunately, New Jersey’s attorney, SCOTUS heavyweight Theodore Olson, missed several opportunities to highlight these hypocrisies.

At one point, Justice Sotomayor, teed up a softball for Olson. Olson, who has also represented DraftKings and has a stake in never lumping DFS into the same category as sports betting, took a giant swing and a miss.

JUSTICE SOTOMAYOR: Let me ask you, what’s so crazy about Congress perceiving that states would never want 12-year-olds to go into gambling houses and that the states would find some way of prohibiting that or living with rules of some sort of creating laws, regulations, conduct that would prohibit that sort of thing?

MR. OLSON: What Congress can do is enact a statute that places restrictions on sports betting and — and have a finely reticulated statute. It can adopt the — the provision that it permitted Nevada to have, which is careful regulation of something that’s taking place. What we have now is activity that is billions of dollars that is taking place throughout the United States. It is all unlawful. What New Jersey decided to do is —

JUSTICE SOTOMAYOR: That’s your selective — your selective prosecution theory, that they’re permitting fantasy teams?

MR. OLSON: No, no, no, I’m not talking about fantasy at all. I’m talking about betting on sports games and…

Aside from punting on the selective prosecution argument and the chance to expose the hypocrisy of the leagues profiting from DFS while trying to block other forms of sports betting, Olson spent much of his time fending off questions from Justices Sotomayor, Ginsburg, and Kagan regarding preemption and commandeering. If oral argument is any indicator, these three justices are going to side with the leagues.

However, as I previously predicted, the conservative wing of the court was much more sympathetic to New Jersey’s case. Justice Breyer exemplified this when he actually made Olson’s argument better than Olson did.

JUSTICE BREYER: Forget the Airline Dereg Act. It was a bad example for this reason. Now, I think what you actually say is the federal government makes a determination of what interstate commerce will be like in respect to this particular item. It can do that, we — including a determination, it shouldn’t be — that’s a determination, okay? Once it makes that determination, it can forbid state laws inconsistent with that determination. That’s called preemption. But what it can’t do is say that our determination is that the states roughly can do it as they want, but they can’t do it that way; for to do that is to tell the state how to legislate, in which case, it is the state and not the person who becomes the subject of a federal law.

MR. OLSON: I wish I had said that myself, Justice Breyer.

The leagues were not represented by any slouch, though. They had another SCOTUS top gun, Paul Clement, on their side.

Clement, however, faced tough questions from the conservative block (minus the silent Justice Thomas) from the get go.

Justice Kennedy, who is more of a swing vote, seemed fairly skeptical that PASPA was not commandeering states’ rights. He told Clement that “[PASPA] leaves in place a state law that the state does not want, so the citizens of the State of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have. That seems commandeering.”

Justice Gorsuch also expressed concern that PASPA forced states to expend resources to uphold the federal government’s desire to outlaw sports betting even if a given state did not want to do so.

JUSTICE GORSUCH: Where does it serve the interest of making it cheap by allowing Congress not to have to expend any funds to enforce its laws?

MR. CLEMENT: With all due respect, I don’t think trying to do this on the cheap was their principal concern.

What would a hearing on sports betting in Jersey be without some “with all due respects”?

Overall, there is no doubt that there is a lot at stake here beyond even just sports betting. This is a golden opportunity for the conservative justices to strengthen states rights via a socially popular vehicle such as sports betting.

Then again, the Court might try to avoid the ultimate constitutional question presented here and go with a partial repeal scenario where New Jersey could repeal its laws prohibiting sports betting as to existing casinos and racetracks only.  This is more palatable than the complete repeal advocated for by the Deputy Solicitor General but would still effectively be a total loss for the leagues.

Last week’s oral arguments did not change my prediction that the Court votes 6-3 in New Jersey’s favor. The leagues’ position is fairy untenable given the proliferation of teams in Las Vegas and the Court has shown an open hostility toward the office of the Solicitor General.

More importantly, this does not seem like a group of justices looking to avoid major rulings on weighty constitutional issues. There is certainly a chance of a partial victory for New Jersey, but more than likely, PASPA is coming to an end. You can take that prediction to the bank.

(Read the full transcript on the next page…)

Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Portland, Maine. You can reach him at steve@thelegalblitz.com or on Twitter @thelegalblitz.