NEW YORK – Former United States Solicitor General Theodore Olson made a point of emphasizing the long odds facing New Jersey during its attempt to repeal the Professional and Amateur Sports Protection Act, which blocked the state from legalizing sports betting.
“Who would have thought, when we got started, that this would happen?” Olson said during his keynote address at the ICE Sports Betting USA conference Tuesday morning. He referenced the size of the crowd, and the fact that the conference was a sell-out, in his opening remarks.
“And so quickly?”
The conference, taking place six months after the U.S. Supreme Court ruled in favor of New Jersey and threw out PASPA, comes just as two more states – Pennsylvania and Rhode Island – have joined New Jersey, Delaware, Mississippi, West Virginia and New Mexico in allowing sports books to operate in casinos and racetracks. Prior to the justices’ ruling, Nevada was the only state with legal sports wagering.
Olson, now a partner at Gibson, Dunn and Crutcher’s in Washington, D.C., spent much of his talk outlining not only the odds against a PASPA repeal but also the legal complexities involved.
New Jersey’s legal strategy in the case was multifaceted, Olson said, largely through necessity. PASPA, he said, didn’t make betting on sports illegal. Instead, it made it unlawful for states to offer sports betting, and authorized the federal government and the major sports leagues to bring civil action to prevent the states from doing so.
Olson said his firm was initially retained to defend New Jersey against a 2012 federal action challenging New Jersey’s 2011 nonbinding referendum that would have created a state constitutional amendment permitting sports gambling. Calling the proposed amendment “very sensible,” Olson said that the firm developed the opinion that PASPA was unconstitutional under the 10th amendment.
“Congress could have regulated it under the commerce clause (in 1992). It could have made it illegal,” he said. “It didn’t. It put the burden on the states.”
This interpretation of what PASPA did, and didn’t do, was what led to the decision to challenge the act via the tenth amendment.
Olson also said that the move was a “longshot,” saying that there were only two decisions – “and they were 5-4 decisions” – that had struck down state laws under the anti-commandeering provision of the Constitution. That provision, Olson said, is basically a way for Congress to “conscript the legislature of a state… to do the job that Congress wants done.”
Underscoring the complexity of the legal maneuverings that eventually led to the May 14 Supreme Court decision overturning PASPA, Olson described a sequence that played out in both district court and the U.S. Court of Appeals in which the appeal under the 10th amendment was rejected “in part because our opponents perceived that there was a weakness” in the 10th amendment.
In short, the federal government argued that New Jersey wasn’t required to keep its statutes prohibiting sports betting on the books, and, since the state could repeal the statutes, it therefore wasn’t an issue of commandeering.
New Jersey countered with the argument that removing a prohibition equaled authorization. Once permission was granted to remove the prohibitions, the state did so.
“Many legislatures wouldn’t have had the guts to do that,” Olson said, “to call the bluff of the leagues, the court decisions and the United States government. But they did it.”
The federal government and the leagues then argued that they hadn’t intended for those prohibitions to be repealed “in that way.”
Olson then outlined the path the case took before finally landing at the Supreme Court, saying “we lost in the district court… we lost in the court of appeals… we lost en banc…”
“I think we lost six or seven times,” he said. “And – I honestly believed that we were right, but when you lose seven times, you think maybe…” But he said he was encouraged by the nature and the tone of the justice’s questions once the case was finally heard in the Supreme Court last December 4.
He went on to quote a fragment of the decision, which was written by Justice Samuel Alito. Noting that Alito had previously been the U.S. Attorney for New Jersey, Olson speculated that, although such things don’t really influence judges, Alito’s background might have “subliminally” allowed him to understand what New Jersey was trying to do.
Of the 7,000-to-9,000 petitions brought before the Supreme Court every year, the justices usually elect to hear around 65.
“Think about those odds,” Olson said. “Those are part of what was overcome in this case.”
“We’re here because of a wager on sports betting made by the people of New Jersey, Governor Chris Christie, and the people involved in gaming in New Jersey,” Olson said.
“That was a remarkable gamble.”
