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

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.