In Thomas Mann’s haunting short story, “Mario and the Magician,” a young Italian man challenges a traveling hypnotist to a contest. Can the sinister Cavaliere Cipolla make him dance against his will? The young man loses. After a few passes by Cipolla, “he lifted his arms, then his knees, his joints quite suddenly relaxed, he flung his legs and danced, and amid bursts of applause the Cavaliere led him to join the row of puppets on the stage.”
Mann’s narrator muses that “it was the negative character of the young man’s fighting position which was his undoing. It is likely that not willing is not a practicable state of mind; not to want to do something may be in the long run a mental content impossible to subsist on. Between not willing a certain thing and not willing at all—in other words, yielding to another person's will—there may lie too small a space for the idea of freedom to squeeze into.”
The question underlying Murphy v. National Collegiate Athletic Association, the Supreme Court’s Monday decision approving New Jersey’s effort to legalize sports betting, is reminiscent of that fictional fight. And remarkably, it may also shed important light on the federal government’s legal attempts to void state and municipal “sanctuary city” laws.
Consider the 1992 federal statute in question, called the Professional and Amateur Sports Protection Act, or PASPA. The Court’s majority held the act unconstitutional and invalidated the entire thing. The offending portion was a section forbidding a state or local government “to sponsor, operate, advertise, promote, license, or authorize by law or compact” any system of betting on sports games.
More by this writer
PASPA did not make sports gambling a federal crime; instead, it authorized the federal government—and any “professional … or amateur sports organization”—to bring suit against a state with such a system and obtain a civil injunction. In addition, it authorized Nevada to continue to allow its casino “sports books,” exempted the three states that already had sports lotteries and pools, and granted permission for Atlantic City, New Jersey, if the state chose, to continue to allow sports betting. All other governments were bound by the prohibition.
The state of New Jersey challenged the law as a violation of the Tenth Amendment. This enigmatic provision of the Constitution states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
For a long time, the only important Court decision on this provision said that the federal government couldn’t force a state to move its state capital; but in the past quarter century, the Court has enunciated what it calls “the anti-commandeering principle.” When I introduce this principle to students, I detect signs of panic and incipient coma; I urge them to consider it the “anti-puppet” principle. (Some years I actually bring in a hand puppet of a policeman to give them an image, if that helps; or imagine the young man in the Mann short story, dancing to the Cavliere’s sinister tune.) The federal government, the Court has said, may not force a state legislature or executive to enforce federal law or policy. It could not, thus, require states to take ownership of privately owned nuclear waste, and it could not require county sheriffs to conduct background checks on prospective gun purchasers.
The government could, however, bar states from doing certain things—as long as it also barred the general public from doing the same thing. In a South Carolina case, the Court approved a federal ban on the sale of driver’s license information, which was marketed both by states and by private agencies.
In 2011, New Jersey’s voters and legislature approved a system of sports gambling. The NCAA promptly sued, invoking PASPA. The state now argued that, by barring it from authorizing gambling, the act made a “commandeered” puppet out of its government. Lower courts held that the act did no such thing; “PASPA,” the Third Circuit said, “does not require or coerce the states to lift a finger.” Thus, PASPA validly blocked New Jersey’s law. The Supreme Court refused to hear the case.
Thwarted, in 2014, New Jersey passed a different law designed to bypass PASPA. This one did not set up a licensed system of sports betting—it just repealed all state laws against sports betting by some people (adults) in some places (Atlantic City tracks and casinos) on certain contests (those not involving New Jersey teams). Those places might or might not allow betting, but the state wasn’t doing anything one way or the other, legislators said.
The NCAA came roaring back into court, and again the lower courts enjoined the law, saying that its repeal “selectively remove[d]” a prohibition and “permissively channel[ed]” betting to favored operators. This, it said, was “authorization,” and that violated PASPA.
This time the Court did grant review, and Monday it held that, by prohibiting authorization, PASPA did “commandeer” the state government: “It is as if,” Justice Samuel Alito wrote for a six-justice majority, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any pending proposals. A more direct affront to state sovereignty is not easy to imagine.”
The NCAA (joined by the federal government as amicus) had argued that PASPA did not order the state to do anything (outlaw betting), and instead told it not to do something (repeal laws against betting). Responded the majority,
This distinction is empty. It was a matter of happenstance that the laws challenged in [the previous “commandeering” cases] commanded “affirmative” action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.
“Direct orders” in this context means orders to do or not do things only states can do—i.e., pass and enforce laws.
The actual vote in the case was 7 to 2; Justice Stephen Breyer joined the majority except for one small section of the opinion. Justice Clarence Thomas joined in full, but also wrote separately. Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor. But both separate opinions, and even the dissent, focused not on the “commandeering” analysis, but on the majority’s decision that the entire statute, rather than simply the ban on “authorizing” gambling, was unconstitutional.
Overall, the case reaffirmed the “anti-commandeering” rule, and clearly extended it to prohibitions as well.
The decision is extremely consequential to sports bettors, who will now be able to lose their savings close to home, and would-be legal bookies, who need not share their local suckers with distant casino owners; but if I may digress briefly, it also may shed light on the bitter fight over “sanctuary cities.”
If the puppet principle bars a prohibition on “authorizing” gambling, then what are we to make of the following statute, 8 U.S.C. § 1373:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
This is the statute that is at the heart of the current federal effort to enjoin and penalize so-called “sanctuary cities.” Most “sanctuary” policies are directions by state and local governments to their own officials, ordering them not to do certain things—turn over information about immigration and release status, for example, or hold prisoners not charged with crimes solely for the convenience of federal immigration authorities. The Justice Department claims that these policies violate that statute, and thus should be enjoined; it also seeks to withhold, or even demand repayment of, federal grant monies paid to “sanctuary” jurisdictions.
After Monday, these efforts should be dismissed forthwith by the lower courts. Remember, the federal government can’t order the states to dance to its tune; according to Murphy, it can’t tell the states they may not decide not to dance to the federal tune either. No double-negative tricks now!
As Mann might say, into the difference between “Do this!” and “Don’t decide not to do this!” there may fit “too small a space for the idea of freedom to squeeze into.”
The anti-commandeering principle is a recent invention, and, in the right hands, it could be sufficiently malleable to enable a clever justice (like, say, Alito) to invent a distinction. But Murphy beyond doubt will make that legerdemain more difficult. Hereafter, if the government wishes to make immigration puppets out of states, it will have to dance around Murphy.