The 10th Amendment Lives

by attorneyscottcampbell

The 10th Amendment Lives – On May 14, the Supreme Court of the United States (SCOTUS) handed down a decision that most believe authorized sports betting. The decision did not authorize sports betting but allows the States to change their laws prohibiting sports betting.

The 10th Amendment Lives

The 10th Amendment Lives

From a layman’s point of view, it really is that simple. From a Constitutional point of view, the decision is the first affirmation of the 10th Amendment in over a generation.
The 10th Amendment, ratified with the remainder of the Bill of Rights in 1789, states: “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.”
The 10th Amendment was insisted upon during the ratification process of adopting the Constitution by the Anti-Federalists to emphasize the limited nature of the powers delegated to the federal government. Like the 3rd Amendment (prohibiting the non- consensual quartering of troops except during war), the 7th Amendment (right to jury trial in any civil dispute over twenty dollars), and the 9th Amendment (not denying rights not enumerated), the 10th Amendment has seldom been referenced in SCOTUS opinions.

The 10th Amendment Lives

A quick search of a case law database shows SCOTUS last referenced the 10th Amendment in 1949, almost 70 years ago. For Constitutional wonks, that case affirmed that the District of Columbia was not a “State” for Federal diversity jurisdiction, and Congress could not designate it one because that power was not enumerated in the Constitution.
In the recent sports gambling decision, the 10th Amendment was applied differently. To understand the Constitutional issue, we have to look at the history of the statute in question, The Professional and Amateur Sports Protection Act (PAPSA or “the Act”). The Act, passed in 1992 and effective January 1, 1993, prohibited a State from changing its law prohibiting sports gambling unless it did so within one year. The law did not outlaw sports gambling, it simply purported to prohibit a State legislature from changing a State law prohibiting sports betting.
This is where PAPSA came up against the 10th Amendment. The Congress did not prohibit or regulate sports gambling, it regulated State legislatures power to change laws vis-à-vis sports gambling. As Justice Alito stated in the recent decision, the “anti-commandeering doctrine” prohibits the Congress from issuing orders to the governments of the States simply because that is not an enumerated power in the Constitution.

The 10th Amendment Lives

SCOTUS, in its opinion, affirmed the 10th Amendment’s power to prohibit Congress from either requiring or prohibiting a State from passing or repealing a State law. New Jersey (the plaintiff through its Governor) can now modify its State law prohibiting sports gambling and regulate it as it sees fit. Thanks to SCOTUS re-discovering the 10th Amendment.