State Power over Sports Gambling is Not the Same State Power Over Aliens and This is Why

By KrisAnne Hall, JD

“To assert that the two are the same, undermines the authority of the Constitution itself and has the potential to create the very crisis the creators of the Constitution were attempting to avoid.”

The supreme Court recently rendered an opinion in the case Murphy v NCAA regarding the State’s ability to legalize sports gambling.  The majority Court opined that the Tenth Amendment made The Professional and Amateur Sports Protection Act (PASPA) unconstitutional thereby taking the stance that the States were not only not bound by this federal law, but that the States could indeed, pass legislation to legalize sports gambling within their State.  (To better understand this particular opinion, please read this explanation.)  There are many, from Judges to media pundits, who now profess that this opinion regarding State’s power and sports gambling will also set a precedent to justify several States’ actions to ignore federal laws regarding naturalization.  I would not even be surprised if some federal judges attempted to use this argument to render certain federal laws regarding naturalization void.  However, this is not the conclusion that can be drawn if we are to follow the Constitution and the terms of this contract that binds the States into the American Union.

1. Controlling Law is the Constitution Not Precedent

The controlling law in this matter, first and foremost, is not precedent, but the Constitution itself.  We know through Article 6 clause 2 of the Constitution (the Supremacy Clause) that the Constitution is the Supreme Law of the Land.  We also know from this clause that only the laws made by Congress that are within compliance with the Constitution are the Supreme Law of the Land.  Several drafters of this Constitution spoke on this matter making the conditional nature of federal laws even more clear.

“…the power of the Constitution predominates.  Anything, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.” James Wilson 1787 Ratification Debates

“No legislative act, therefore, contrary to the Constitution, can be valid.”  Alexander Hamilton, Fed #78

The Supremacy Clause itself declares that laws made by Congress that are inconsistent with the powers specifically enumerated to the federal government are not binding upon the States.  Within the Bill of Rights is the Tenth Amendment which serves as further clarification of this separation of powers between the States and the federal government.

“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.” Tenth Amendment (emphasis mine)

2. Delegation of Powers Makes the Legal Distinction

It is within the distinct separation of powers between the States and federal government that the Constitutional difference exists between States legislating sports gambling and States denying the Uniformed Rules of Naturalization.  Simply put, the power to establish Uniform Rule of Naturalization is a power delegated to the federal government through the States’ Constitutional compact, the power to make laws regarding gambling is not. (NOTE: The assertion that the federal government is empowered to regulate gambling through the “commerce clause” is an errant expansion of federal power through “interpretation” not intended by the drafters. LINK)

The authority to make the Uniform Rule of Naturalization was delegated to Congress through Article 1 section 8 clause 4 of the Constitution:

“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;”

The purpose of this power being delegated was to correct serious problems that had arisen through the Articles of Confederation due to “the dissimilarity in the rules of naturalization” that James Madison identifies in Federalist #42 as “a fault in our system.”  Madison appropriately defines “naturalization” as the classification that bestows upon an alien “all privileges and immunities of free citizens.”  In the previous Constitution, the definitions of citizenship were left to the independent States creating not only confusion amongst the States, but as Madison asserts, a potential for “embarrassment” and “chaos.”  When the States established their own standard of naturalization, creating different standards across the Union, an alien could enjoy the benefits of citizenship in one State but not others.  So an alien who enjoys the benefits of citizenship in one State could bring the legal claim to demand the benefits of citizenship in other States who have different standards.  Madison said this claim would establish that “the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of another.”  Those who ratified the Constitution considered this to be a problem too serious to not be provided against.  Therefore, the power to establish a Uniform Rule of Naturalization was established; to ensure a single standard from State to State for aliens to become citizens and enjoy the benefits of citizenship.

3. States who are a part of the Union must recognize the authority established by the Constitution

Every State that enters the Union under this Constitution, must agree that this power is delegated to the federal government and must admit they do not have the authority to alter those standards.  If they do so, they are violating the terms of the Constitution they agreed to when entering the Union and are breaking their fiduciary duty to the other States.

The federal exercise of the power over the standards for naturalization is consistent with the Constitution, by the terms of the Constitution it is the Supreme Law of the Land, and the States are bound by it.  Any alteration of this standard is not only contrary to the intent of the Constitution, but also contrary to the very language itself.  Cities and States who are allowing aliens to vote, to hold government office or to participate in tax payer benefits and welfare are violating the terms of the Constitution and their duty to the other States.

4. Gambling and Naturalization are not Constitutionally the same

The supreme Court was correct in its opinion to say that PASPA does not control the States.  However, to claim Murphy v NCAA creates a precedent that will allow States to create their own standards for applying the benefits of citizenship to aliens is errant and dangerous.  If the courts suggest that a State can create its own standard for citizenship, then what will prevent a State from refusing citizenship status to person based upon their religion, skin color, or political ideology, and then subsequently demanding that standard upon other States?

Finally, as Madison explains in Fed #42, “If we are to be one nation in any respect, it clearly ought to be in respect to other nations.”  The entire purpose behind the States creating the federal government is to be a representative on behalf of the States in foreign affairs.  The manner in which an alien becomes a citizen is just as much a foreign affair as a domestic one.  To have uniformity in that manner not only makes for better foreign relations, but will also, as Madison again explains, foster “the harmony and proper intercourse among the States.”

For the State to create laws contrary to the Constitution is quite different from a State creating laws when the power has been reserved to the States.  That distinction is what the Tenth Amendment is all about.  Gambling is a power reserved to the States; Naturalization is a power delegated to the federal government.  To assert that the two are the same, undermines the authority of the Constitution itself and has the potential to create the very crisis the creators of the Constitution were attempting to avoid.

www.LibertyFirstUniversity.com

Supreme Court Betting on College Sports

By KrisAnne Hall, JD

In a baby step back toward protecting reserved State Powers, the Supreme Court on Monday overturned a twenty-five year old federal law called The Professional and Amateur Sports Protection Act (PASPA).  The Act was originally signed into law in 1992 to target organized markets for sports gambling.  This federal law was not a flat ban on sports-gambling schemes, but only a law that prohibited States from permitting sports gambling by State law.

In an opinion written by Justice Alito, the majority of the court decided this law was a violation of the Tenth Amendment to the Constitution.  Alito says, “The legislative powers granted to Congress are sizeable, but they are not unlimited.  The Constitution confers on Congress not plenary legislative power but only certain enumerated powers.  Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms.”  The Tenth Amendment limitation is referred to by the court as the “anti-commandeering doctrine.”

The people of New Jersey want to legalize sports gambling but PASPA makes it illegal for States to legalize any “sports gambling schemes.”  The people of New Jersey argued that this federal law infringed upon the State’s sovereign authority.  The State relied upon two cases; New York v. US (1992) and Printz v. US (1997) that struck down federal laws that imposed improper regulatory powers upon the States.  In Printz v. US the supreme Court used Federalist Papers 39 as support for their opinion in which James Madison explained:

“[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

In these cases, the supreme Court recognized that there are separate and independent jurisdictions that exist within the two sovereign spheres of government; the State and the Federal.  When the power has not been delegated to the Federal that power remains in the State and outside of the Federal’s power to impose laws upon the State.  Following this same standard established by the Tenth Amendment in the Constitution, Justice Alito and the majority court recognized the State’s authority to regulate gambling lies within the sovereign realm of the state’s authority and that Congress directing state legislatures to prohibit sports gambling is not an enumerated power delegated by the Constitution to the federal government.

“The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”

It is refreshing to see the supreme Court return to this fundamental and essential truth; that the States are independent sovereigns and the federal government can only lawfully exercise powers that have been properly delegated.  This Court also recognized the constitutional principle of the sovereignty of the States in NFIB v. Sebelius when Chief Justice Roberts, writing the majority opinion said;

“In the typical case we look to the States to defend their prerogative by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace federal policy as their own.  The States are separate and independent sovereigns.  Sometimes they have to act like it.”

Although this is just a small step, Alito and the majority court may be steering the federal government back in the proper direction; one not only required by the Constitution but also by those who wrote it.  Alexander Hamilton makes this very clear in Federalist #78:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution, can be valid.”

Hamilton is explaining in this text that in order to for a federal law to be valid, it must not only comply with the text of the Constitution, it must also be consistent with the “tenor of the commission under which it is exercised.”  The Constitution requires adherence to the intent of the drafters as well as the words of the document.  In a display of adherence to this intent, Justice Alito quotes the Declaration of Independence and Madison’s Federalist #39 in his majority opinion to once again remind the people and their Congress that the States are sovereign.

“When the original States declared their independence, they claimed the powers inherent in sovereignty- in the words of the Declaration of Independence, the authority ‘to do all…Acts and Things which Independent States may of right do’…the States…retained ‘a residuary and inviolable sovereignty.’”

However, one point Alito seems to miss in his opinion is that the power to regulate gambling is not a power that is delegated AT ALL to the federal government.  He claims that “[c]ongress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.”  In this broad assertion of power, Alito actually sides with Justice Ginsberg and the dissent; that the federal government is realistically unlimited in its exercise of power.  Justice Thomas, in his concurring opinion, is the only Justice who denies this assertion of unlimited authority:

“Unlike the dissent I do “doubt” that Congress can prohibit sports gambling that does not cross state lines.”

Indeed, you may search the entire text, you may scour the writings of the drafters of this Constitution, but you will never find an authority delegated to the federal government to regulate such activity.  The assumed authority to do so comes from an interpretation of the Commerce Clause, in which the federal government stretches the meaning and application way beyond the “tenor of the commission” of the Constitution.  As Madison explained in 1792, during the Cod Fishery debate, the clauses within the Constitution are not powers delegated at all; they are merely explanations of “the purpose of the powers which are delegated.”  These clauses were never intended to be boilerplate blank checks written to Congress to create whatever law they could somehow justify.  Madison issues a very stern warning against using these clauses for that purpose.

“…for if the clause in question really authorizes Congress to do whatever they think fit… it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America.”

What Alito suggests is that the powers of the federal government are not limited by the Constitution, but by mere will enforced by interpretation of clauses.  Alito seems to only differ from the dissent in policy but not in principle.  However, as Alito does assert in his opinion, the Tenth Amendment is very clear; “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.”  However, Alito’s final statements seem to assert that there are no reserved powers that rest within the States.  What he is really saying is that ALL POWER exists within the federal government and anything the feds choose not to use, is then “available” to be exercised by the States.  Alito’s claim then becomes the very manifestation of Madison’s warning, transmuting the limited nature of the federal government to one that is limited only by its own interpretation and desire for power.  Alito is not supporting a Constitutional Republic, but an unlimited federal kingdom that grants permissions to its vassal colonies – the states.

There should be no doubt as to the limited authority of the federal government.  There should be no doubt as to the reserved powers and sovereignty of the States.  Both are well documented within the Constitution and in the drafters’ explanations of the Constitution.  However, this fundamental and essential principle necessary for the existence of our Constitutional Republic still eludes our justices who claim the federal government can regulate the lives of the citizens in whatever manner they choose, as long as they can create an articulate justification and manipulate the Constitution, irrespective of the tenor in which it was written.  It is a step in the right direction to see the Court once again asserting the Sovereignty of the States.  However, what is the real difference between the majority and minority opinions when they both support an unlimited congressional authority over the people and left over power for the States?