Federalism Wins Supreme Court Jackpot

ILYA SHAPIRO, CATO INSTITUTE

The smart money was always on the Supreme Court to make the kind of ruling it did today, strike down a federal law that purported to tell states whether they could legalize sports betting. That doesn’t make it any less exciting or refreshing—and it’s deliciously apt as both the Washington Capitals and Vegas Golden Knights remain in the hunt for the Stanley Cup.

In the first “anti-commandeering” case in more than 20 years, the Court resoundingly (7-2) reaffirmed a principle that should be obvious: the federal government can’t force states to pursue federal policy. That there were seven votes for that proposition underlines the renewed interest in federalism that’s spreading across the country.

Indeed, as important as Murphy v. NCAA is for the gaming industry, the reason this case was so closely watched is because of its implications on so many areas of policy that have revealed federal-state tensions of late. From environmental regulation to sanctuary cities, marijuana to guns, states are flexing their sovereign muscles in a way that strengthens our body politic. It’s insane to think that in a large, pluralistic country like the United States, so many decisions should be made one-size-fits-all in Washington. Federalism is good for red states and blue states alike.

Finally, a note on what the Court didn’t decide today: despite the protestations of the two dissenting justices (Ruth Bader Ginsburg and Sonia Sotomayor), it’s not at all clear that the federal government has constitutional authority to ban or regulate in-state gambling (if it decided to do so directly now that it can’t force the states to do its dirty work). If New Jersey and Nevada want to allow the March Madness money to flow, while Utah and Georgia don’t, what business is it of Congress? Justice Clarence Thomas was right to call this out—so remember this day if and when the justices ever reconsider their overexpansive Commerce Clause jurisprudence.

For more background on this case, see my previous post discussing Cato’s brief, my op-ed on the subject, and my short law review article.


Used with permission. Cato Institute / CC BY-NC-SA 3.0


Ilya Shapiro, is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), has testified before Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 200 “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society, is a member of the Legal Studies Institute’s board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute and a Lincoln Fellow at the Claremont Institute, and has been an adjunct professor at the George Washington University Law School. In 2015 National Law Journal named him to its list of 40 “rising stars” in the legal community.