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tv   Supreme Court Case Christie v. NCAA  CSPAN  January 2, 2018 5:01pm-6:09pm EST

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budget, the top line, how do we increase it? it also is intellectual resources. how do we think about fighting these potential conflicts in the future differently? >> you can watch the discussion about defense in its entirety from the reagan national defense forum in simi valley, california, tonight at 8:00 eastern on c-span. the second session of the 115th congress gets under way this week with the senate returning on wednesday. that day will see the swearing in of two new democratic lawmakers. doug jones of alabama and tina smith of minnesota. the house returns the following week on monday. in the new year, congress faces a government funding deadline with temporary spending set to expire on january 19th. also on the calendar, this year's state of the union address from president trump before a joint session of congress. as always, you can watch the house live on c-span and see the senate on our companion network, c-span2.
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>> last month, the supreme court heard oral argument in christie v.ncaa dealing with sports betting. outgoing new jersey governor chris christie brought the case. the four major professional sports leagues oppose the move and joined the ncaa to uphold the ban on sports gambling. >> we'll hear argument first this morning case 16476, christie versus ncaa, and consolidated case 16477, the new jersey thoroughbred horsemen's association versus ncaa. mr. olson. >> thank you chief justice, and may it please the court. one of the most important decisions made at the constitutional convention in 1787 was replacing the failed confederacy that governed states with a national government that could regulate individuals but not states. in the words of this court in
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the new york case, congress may regulate interstate commerce directly, but it may not regulate state's regulation of interstate commerce. >> mr. olson, isn't that what the government does whenever it preempts state law? it says you can't regulate? >> when the government preempts state laws, the government, the federal government has initially taking the position or taken an action to regulate interstate commerce in some respect, and when it does that, this court has repeatedly held it may preempt contradictory or inconsistent state laws. >> so what do you make of -- >> pardon? >> what do you make of ferk? the government gave the state a choice. regulate this way or don't regulate at all. >> that's right. >> and we won't either. >> it gave the states a choice in conjunction with the regulation of the area --
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>> no. there were federal standards. the states were told accept them or don't, but if you don't, you won't regulate, neither will we. so -- >> as a matter of fact, the consequence of that is that the states could regulate according to the standards established by the federal government with respect to the regulation of interstate commerce and if the states chose not to do that, the field was left to the federal government. this is a direct paspaw, a direct command to the states without any effort to regulate sports wagering. >> that's the obvious example. >> yes, and the airline deregulation act is a very, very good example because in that case, the congress of the united states took a wide responsibility with respect to airline deregulation. airline regulation, as a matter of fact, that statute has a plan aplea of provisions regulated
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airlines in -- >> we don't want the price of airlines deregulated. we want to regulate it. that's the federal statute. it says states, you can't regulate them and we don't regulate their prices. free market does. okay, here, they say imagine -- they say we're not going to regulate sports gambling at all. we're not going to forbid it, and we don't want you -- you know, we want you to forbid it, you see the analogy. >> i do see the analogy. the case to which you're referring, it discusses in great detail the federal regulatory scheme, which included as a portion of the federal regulatory scheme a preemption of the states from regulating fares, conditions of service, and that sort of thing. but justice breyer, that is an area, a quintessential example of the federal government taking responsibility for how airlines
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flew in this country, and deciding in certain areas, yes, it could be preempted. >> what does that mean? what would you be looking for when you say that the federal government took responsibility? i mean, suppose that the federal government had just said, we don't want states to regulate. we don't want to regulate ourselves. we just want, i think this is what justice breyer's question was, a free market. is that enough responsibility that the federal government has taken? >> i believe it is not. because that is a situation where the congress would be saying we're choosing to regulate states. we're telling states that you may not participate in regulating commerce that is taking place in your state. we don't want to take any responsibility. we want to put the burden and expense and accountability all on the states to do so. this is quintessentially what the -- >> i guess what i'm asking is you're suggesting that the
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federal government in order to preempt state activity has to itself enact some kind of comprehensive regulatory scheme. and the question is, you know, what would we be looking for if that were our test? when do we know that they have enacted a sufficiently comprehensive regulatory scheme in order to allow preemption of state rules? >> the only thing that i would say in response is a predicate to answering your question is when you say sufficiently comprehensive, to the extent that the state, the federal government, congress, has taken responsibility to regulate in that field, once it has done so, it can then preempt under the supremacy clause inconsistent or contradictory state laws. but the supremacy claus is where this preemption comes from. t it requires, says that the constitution statutes or treaties should be the supreme law of the land.
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the court has construed that repeatedly as saying -- >> and it doesn't even have to be inconsistent if the federal government occupies the whole field. >> yes. >> like southern pacific versus arizona. a state cannot regulate the length of a freight train simply because this is reserved for the congress. that's fairly standard. could you in this case to avoid commandeering concerns, interpret the law as saying that if states do legislate, then they will be preempted? >> well, first -- i think if i understand your question correctly, justice kennedy, is if congress had taken responsibility to decide to do something about sports wagering by regulating it in some respect or taking responsibility in some respects and then it could say that where a state is doing something that's inconsistent,
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then that can be preempted. but the title of this statute says it all. an act to prohibit sports gambling under state law. so what congress was saying there, and when congress passed the statute, it had a report from a congressional budget office that specifically said this will have no budgetary impact on the federal government. >> can we interpret that as saying if you do regulate, then it will be preempted? >> it may be preempted. congress, as you know, congress may adopt a statue that explicitly expressly preempts or in some cases impliedly preempts state laws that are inconsistent or in a way that obstructs the accomplishment of the federal objective. >> i'm seeing this, i think. is this your argument, and just don't say yes if it isn't. forget the airline dereg act. it was a bad example for this reason. i think what you actually say is
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the federal government makes a determination of what interstate commerce will be like in respect to this particular item. it can do that. including termination. it shouldn't be -- a determination. once it makes that determination, it can forbid state laws inconsistent with that determination. that's called preemption. but what it can't do is say that our determination is that the states roughly can do it as they want, but they can't do it that way. for it to do that is to tell the state how to legislate in which case it is the state and not the person who becomes the subject of a federal law. >> i wish i had said that myself, justice. but you did say it. >> i'm trying to get your argument in. >> my argument -- >> is that your argument? >> that is my argument, and the court said it almost the same
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way in new york versus the united states. congress could preempt state radioactive waste regulation, but the tenth amendment limits the power of congress to r regulate in the case it has chosen. instead of directly regulating, congress has implemented the states to regulate. it's new york versus the united states, and that same language appears in earlier cases. it goes back to 1911 in the coyle case. >> mr. olson, is this a commercial activity by the state? if it's licensing casinos and horse racing isn't it involved in a commercial activity? >> certainly, it's a commercial activity when individuals are engaged in betting on sports. having a sports -- >> why isn't it when the state is licensing them? they're making money. >> it doesn't change the character of the underlying
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activity. the constitution ordains who may regulate that commercial activity, presuming it's interstate commerce. once that's satisfied -- >> i never understood not to be. you just have to watch the lines on the highways coming from all different directions and states going to gambling casinos. >> yes. >> if it is a commercial activity by the state, haven't we already said that the federal government can regulate that activity by the state? >> yes. in fact -- >> so why is it that telling the state that it can't license, participate, authorize, or otherwise involve itself in gambling a strict prohibition of a commercial actor? >> it's -- the question is interstate commerce, and yes, just as the language in the new york case, which i just quoted, congress may regulate that field. if it does regulate that field,
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which congress has not chosen to do in this case, it then can preempt inconsistent state laws. i would quote -- >> you have not challenged 3702 subsection 2, have you? >> subsection 2 is simply a counterpart to subsection 1. >> but you didn't challenge it. >> we challenged the entire statute, but we were not sued under that section. we were sued for violating section -- subsection 1. subsection 2 is another side of the same coin because subsection 2 says pursuant to law. the law that's referred to in subsection 1, we say is something that the states can do and the congress, if congress chose to prevent it, it would be unconstitutional. >> by its terms, though, subsection 2 operates on individuals and not the state. >> only if individuals operate pursuant to law, which means
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pursuant to the state law, which is referred to in subsection 1. this is a little confusing because the way congress chose to do it. but the government refers to that as a belt and suspenders thing. what it is, and i sort of accept that because subsection 2 simply seeks to do indirectly what we contend subsection 1 can't do directly under the constitution. >> what part of subsection 1, it seems is not challenged either? and that's the ban on the state itself operating gambling casinos? >> this would be something similar, justice ginsburg, to the reno versus condon case, or the south dakota versus baker case, where the federal government chooses to enact a law of general application that applied to private parties engaged in interstate commerce
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and applied the same law to the states when the states were engaged as a market participant to the same degree as interstate commerce, in interstate commerce. so to the extent that congress had initially decided to regulate this area and put itself into the field of regulating private persons engaged in activity, it could then address the states if the states choose to engage in the same activity. >> so you took this statute and you take the private parties and have a comparable prohibition on the state. what do you accomplish by not being authorized by, if you have two parts that are not constitutionally infirm, and they achieve almost the same thing. >> it would be constitutionally infirm, your honor, because the state -- because the congress
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didn't attempt to regulate interstate commerce directly, and it could then, if it did so, which it did not do so, quite obviously, it could then regulate the state as a market participant to the same degree it was regulating private citizens as a market participant. >> it's pretty comprehensive. the comprehensive aspect is a total prohibition. >> yes. >> i don't know -- you seem to be saying that they can't regulate it if the regulation is going to be a total ban. but that's very comprehensive. >> no. i agree with the way you stated it, but that is not paspa. if they said we prohibit sports betting, gambling on sports, then it could address the state as a participant in that same activity. it did not do so. this statute does -- attempted to have the states, and that's
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why i quoted the name of the statute, to prohibit sports gambling. it didn't stop there. it said sports gambling under state law. and what it intended to do, this is what you talked about in the new york case. new york versus the united states, is it put the accountability, the expense, the responsibility, the burdens on the state, and basically said as the congressional budget office says, it won't have any effect on the federal budget because the federal government is doing nothing. it also said in the senate report, it won't have any regulatory impact. >> suppose i read these cases and setting up a principle that the federal government can't conscript state officials for its own purposes. you know, the federal government can do whatever it wants consistent with the commerce clause, but it can't conscript state officials in order to help them -- help the federal government do it. if that's the way i see these cases, who's being conscripted in order to do what here?
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>> what is -- it's both conscription and the court uses the word commandeering in directing the states. all of those terms, all of those verbs are applied in this. what is being conscripted here is the legislature of new jersey has been told that it may not regulate an activity that's taking place in new jersey, all over new jersey. there's illegal gambling going on. it can't regulate that activity. the legislature -- >> just the way you say that, mr. olson, the federal government is saying to the state, you can't do something. so that sounds to me, the language of preemption all the time, the federal government takes some kind of action, passes a law, and then says to the states, you know what. we've got this. you can't do anything. >> it is so fundamental at the constitutional convention and discussed in most detail in the new york case, that the difference is that in those circumstances where congress has
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taken the step of regulating commerce, it can preclude state efforts that interfere with that or conflict with that. but when it sets out at the initiative, at the first stage of regulating the legislature, here we have a situation where a court has ordered pursuant to my opponent's briefs, ordered, told new jersey you can't repeal a statute that you have tried to repeal. you must keep it -- >> do you see no difference between the federal government saying to a state, look, you can't take some preferred policy option that you would like to take, and on the other hand, the federal government saying to a state, you must help us do something. because i thought that our cases were all about the second thing. you must help us. you must be our little assistants when we promote or try to advance a policy
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objective. and i guess what i'm asking you for is how is new jersey being put in that position with respect to this statute? >> new jersey is told it may not regulate in the way its legislature chooses to exercise its discretion with respect to an activity taking place in the state. it must enforce a law and keep a law on the books that is attempting to repeal the executive branch and the legislative branch of the state of new jersey have been conscripted -- >> may i just ask you to qualify that must enforce. the third circuit the first time around said each state is free to decide how much of a law enforcing priority it wants to make so there's not going to be a federal prosecution if the state says we have other things
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to do that are more important than casino gambling or sports gambling. >> yes, justice ginsburg, the court said that, and the court said you may repeal any portion of your statutes. you may take any policy that you want to take. the federal government said you may repeal all or any part of your sports betting prohibitions. that's exactly what new jersey did. but you can imagine, justice ginsburg, having a law that a federal court has ordered new jersey to keep on the books, it prevents it from repealing that law, which means it's the same as requiring it to enact that law and requiring it to maintain that law on the books, and then the officials of new jersey, the law enforcement people of new jersey, the governor of new jersey saying we're not going to enforce that law on the books after we took an oath to uphold the laws of new jersey. that is a strange, very, very
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strange construction of what the preemption clause is and commandeering is all about. but to go back to the new york -- >> i'm sorry, does the injunction tell the governor that he has to enforce this law? >> no, it says that the repeal -- >> well -- >> -- must be reversed -- >> if an act is unconstitutional, those laws basically go by the way side no matter what. but my question to you is, i read the injunction. i don't see it anywhere telling the governor he has to enforce these prohibitions. >> no, it doesn't. what the governor's responsibility to enforce the law -- >> mr. olson, if every governor enforced every law on the book, the state would be more than bankrupt. it would have no way of surviving. >> i understand that. >> there are countless laws, and even laws that are enforced that are not enforced totally. >> i understand. >> they make choices all the time. >> yes, and what the states make those choices, then.
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here we have -- >> there's nothing here telling this state that it has to enforce this law. >> it is an order from a federal court saying that the legislature, having repealed a statute, must unrepeal it, put it back on the books, and what you're saying is that the governor doesn't have to enforce that law. it's a law on the books of new jersey. the governor and executive branch of new jersey officials have taken an oath to uphold the laws of the state of new jersey, and here's a federal court that comes along and basically says we're going to order this statute to be back on the books but just forget about it. this is a very, very strange situation. >> what's the difference between that and this law is unconstitutional? this law is preempted or just a simple ruling by the court. this law is preempted, period, end of story. >> this was a repeal. >> if -- if, if, as i said, the court had simply said this is
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preemptative. >> and what the this is, in your question, is a repeal of a prohibition of sports betting, which means the repeal that the legislature carefully did in response to the third circuit's decision and the government and saying you may repeal any law you wish -- >> i have three ways of looking at this case or of the issues here. the first way is to say that this is the repeal, which it seems you're arguing. and you're saying to us, does or does not this statute permit a repeal. and if i say it permits repeals of all kinds, partial or not partial, we avoid the constitutional question, because then you could do whatever kind of repeal you want. the second way to look at this is that this statute does not
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prevent repeals at all. that's what you're arguing right now. that would make this statute unconstitutional. and the third approach is basically what the government is arguing here, which is it permits complete repeals but not partial repeals. because partial repeals of the nature taken here are actually authorizations that are prohi t prohibited by the law. so those are the three approaches. am i missing something in those -- >> yes, because the effect of the statute is to prohibit new jersey, the statute was intended to ban sports betting. >> that's the second -- or is this a fourth way of looking at it? >> this is one way, and i submit the only way of looking at the statute from its title to its legislative history to its exact language, it was intended to prohibit sports betting under state law. >> that's my second way.
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that's my second way. >> sports betting is taking place under state law all over the united states in every state except nevada, with these other limited exceptions, is illegal. what new jersey has decided not just that we want to repeal, because if you repeal -- >> you did make the argument below that there was no authorization because the statute didn't regulate how sports betting would take place. you have abandoned that argument, i'm curious why. >> we only were responding to an argument by our opponents and a third circuit decision -- >> but we normally interpret statutes in ways to avoid constitutional difficulties, not in ways to create -- >> yes, and the only way to avoid that's been suggested here is that there may be some appeals, and the third circuit used the language too much authorization, which is very much the language in the prince case, too much policymaking, and
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the court said in that case, that's not a line that's permissive with respect to regulating what the states are doing. what we're saying to the extent that our opponents are making an argument -- >> you take a win on statutory grounds. >> we would take the win, except, your honor, the consequence of that is we would have a statute intending to prohibit the spread of sports betting. and our opponents say in order to make that statute constitutional because they recognize the commandeering problem right from the beginning, in order to make that constitutional, we can allow you to eliminate all prohibitions of sports betting, so an effort by congress to stop the spread of sports betting would lead to an interpretation in order to hold it constitutional, where all limits on sports betting were removed. if the court permits, i would like to reserve the remainder of my time. >> thank you, mr. olson.
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>> mr. klemmant. >> mr. chief justice and may it please the court. it does three basic things. first, it tells the states that they may not themselves operate or advertise sports gambling schemes such as a sports-based lottery or a sports book. second, it tells private parties in 37022 that they may not operate or advertise a sports gambling scheme pursuant to state law. and thirdly, it tells states that they may not authorize or license third parties to conduct those sports gambling schemes that would violate federal law. >> but it does so by this mechanism, it leaves in place the state law that the state does not want so the citizens of the state of new jersey are bound to obey a law that the state doesn't want but the federal government compels the state to have. that seems commandeering. >> justice kennedy, we don't think past the operates in that way.
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we think if new jersey wants to say we're going to lift all our prohibitions, we think at least as to that law, it would not be preempted as written. i think it's a separate question, especially in new jury, whether the private conduct that would take place pursuant to that repeal, especially at casinos and race tracks, would be prohibited by 37022. >> but the partial repeal is forbidden, correct? >> this partial repeal is forbidden. this partial repeal. >> what partial repeals are not forbidden? what could the state do? >> well, first of all, i think it's important to recognize that what paspa regulates and it does regulate it quite comprehensively, is the operation of sports betting schemes. it doesn't regulate sports gambling and says nothing about individuals engaging in sports gambling. if new jersey wants to say all our prohibitions which right now are on the supply side and demand side, all of its prohibitions on the demand side it can partially repeal. >> could not a state enact --
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the federal government enact a law saying no state shall pass an income tax greater than 6%? >> i think it might be able to do that because -- put it this way, i don't know why in principle that would be so different from the statute at issue in baker, which says no state shall issue a -- >> shall issue a what? >> a bear bond. i think it's the same. to the extent there would be anything odd tubt, and it's what mr. olson suggests is ought about pasba is the idea there's a preemption provision. if congress regulated the field, there would be no problem with the preemption. >> something a little more odd about it, which is it goes to the fundamental powers and prerogatives of a state to sort of function their own government. if you say you can go so far as to regulate what level of income tax they can charge. >> you're right, mr. chief justice. maybe i should amend my remarks. i don't think it would be a
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commandeering problem with that statute. there might be some other federalism problem. i think if the court -- if congress tells a state to move its state capitol, i'm not sure it's a commandeering problem. i just think it's -- not to use a word maybe i'm not supposed to, but maybe a national league of cities problem, but i don't think it's a commandeering problem. >> you could imagine a situation where it's the same kind of commandeering. the federal government wants to reduce expenditures on public employee pensions. so it tells the states there's a state law, you cannot spend more than 20% of your budget on state employee pensions. they're commandeering the state to achieve that result. can they do that? >> again, i don't think that's a commandeering problem. i do think it's probably a national states league of cities problem. if the court wants to say that there are certain things that get too far into the state's kitchen, you know, that's one thing. but i do -- >> hypothetical indicates that this blurs political
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accountability. the citizen doesn't know, is this coming from the federal government, from the state government? that's precisely what federalism was designed to prevent. >> and precisely in new york, this court said there's not an accountability problem with preemptten legislation. i do think it's worth -- just to finish the point, i do think it's worth recognizing that you have three pieces, three legs of the stool, if you will. one says the states, you can't do this. that, the other side doesn't have an objection to. the other says private parties, you cannot do this pursuant to state law -- >> are there other statutes that rely on prohibition of state action without an accompanying federal policy? >> justice kennedy, i don't know that there are. i think maybe there are, but it's just the public policy they enforce is implicit. there's a provision that says you can't have discriminatory taxes against railroads. that's all the provision says. i assume in interpreting that, you would think congress has
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said they don't want to have that kind of discrimination interstate commerce. but here, you don't have to look where the federal policy is. they say we don't want sports gambling schemes. we don't want the states to do it. we don't want the private parties to do it. >> isn't it enough just to say it's illegal for entities, people or otherwise, to engage in gambling on sports events? that would be the federal government regulating this area. then it has what is the normal preemption clause where it says not withstanding any state law to the contrary? >> and mr. chief justice, i think at the end of the day, that's what paspa does. i think it was worded in a particular way for a particular reason, which is one set of federal statutes you should look at in interpreting paspa are the provisions that told private parties if they engage in a sports gambling scheme or a gmbleing business in violation of state law, that was already a
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federal felony. title 18, as to lotteries and probably most -- >> that's a very odd way -- and this is, of course, subsection 2, a very odd way to phrase something. it's illegal if it's pursuant to state law. in other words, if the state law says you can do it, that's the only situation in which it's illegal. if the state law doesn't say anything about it, feel free, you can do it. >> mr. chief justice, that's why i think the oddity goes away entirely that if you understand before congress passed paspa, it was already unlawful as a matter of federal criminal law for a private party to operate a sports gambling scheme in violation of state law. >> violation of state law. >> in violation of state law. >> we go back for a second. one of the purposes which is not the one justice kagan mentioned, but the best one in this case that i could find is the notion that federal statutes should address themselves to
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individuals and not to states. all right, now that can't be 100% true because we have all preemption, but you can still look at it as basically true with preemption being a commerce claus based, for example, exception. then ask what have we here. well, is there nhtsa, transportation act, osha, nothing like that. there is no federal regulation of that kind. is there deregulation act which says it is the federal policy that there will be pre-enterprise and fares? no, because all the things you mentioned have the word state law in it. so all we have here are a group, if you like, of provisions, all of which are addressing themselves to what kind of law a state may have without a clear federal policy that distinguishes between what they
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want states to do and what the federal government is doing. given those circumstances, it falls on the subject matter of this law is the state. that's what this is about. telling states what to do, and therefore, it falls within commandeering. a little long, but that's how i was reading new york, the notion of not addressing itself to the states, and it's long so you can answer the whole thing. >> well, i'll try to answer the whole thing, but i'll start with the proposition that we know there's absolutely nothing wrong with congressional legislation that operates on states as market actors. and that's what the first four prohibitions in 37021 plainly do. they tell the states you can't operate, advertise, sponsor, or promote sports gambling schemes. so that's okay. it also tells private parties that you can't do those four things pursuant to state law. and keep in mind, those private
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parties can't do it as a matter of federal law in violation of state law. all we leave is the provisions they challenge or authorize. and all those are in the context of this statute is an expressed preemption provision, which of course it's addressed to the states and local governments because they're the ones who can pass laws that might be preempted, but i don't think it creates a problem. it's very analogous to baker. it told the states they couldn't have bear bonds. they also told private parties you can't have bearer bonds. >> but you begin by saying that this is market participant as the first three, but not as to the fourth. >> i don't mean to be pedantic. it's not to the fifth and sixth, which are licensed and authorized. but my point is, you're already telling the states that they can't do something just like congress did in baker. you can't issue bearer bonds.
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37022, especially read against the backdrop of statutes 1955 tells private parties you can't issue bearer bonds. you can't operate sports gambling schemes. so the only thing in the middle is a provision that says states, you can't authorize or license private parties to engage in conduct that violates federal law. if that provision weren't in the statute, i think the same laws would be impliedly preempted under those that apply in applied preemption, and if congress said states, don't do that, don't authorize and don't license private parties to engage in conduct that would violate federal law, that's preemption. >> you said subsection 2 is the other side of the coin of subsection 1. and it seems to me that if that's the case, that subsection 2 cannot be severable from subsection 1. >> i don't know if i used the phrase the other side of the coin, your honor, but i do think it is not just severable, i
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think it operates independently, and it operates without even a constitutional issue. >> to do the same thing, right? because it says it is illegal for individuals to follow state law when engaged in activity protected, authorized under state law. which seems to me the be the same thing as saying states shall not authorize individuals to do that. >> well, your honor, a couple points. one is i do think there's some difference in text between 37022 and 37021. and i think there's an argument that the parties haven't had to brief here because this really hasn't been a 3702 case, but there's a good argument that 37022 is broader and pursuant to law, it's broader than licensed or authorized by law. just put that to one side, though. what i would say is particularly when you read 37022, against the backdrop of the pre-existing federal statutes in title 18 that made operating a sports gambling scheme in violation of
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state law, a federal criminal prohibition, then it's a comprehensive scheme. it basically says private parties. there's something that is essentially a cancer on interstate commerce that we don't want to take place. and that is -- >> how do we know that congress would have passed two without one? one makes the regulation free because it says states, you have to do this. and it doesn't cause any budget impact on the federal government. two, under your interpretation, is a direct regulation by the government and therefore might cost money. and you could see a legislature saying, well, you know, one makes sense. and i'm only going to vote for two because of one. because it's free. it comes for free. >> so justice gorsuch, i would like to make two points in response to that. one is on this idea that the cbo scored it as being swleero so it's free, we actually looked at other preemption provisions and other federal criminal provisions, and cbo tends to score them the same way.
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they basically say -- >> that's neither here nor there. my question is, if we're asking the severability question that the chief justice posed to you, one of the questions we have is what congress would have done in a different world. now, that's a very hard question to answer, but that's the question we're posed. and how do we know congress would have passed two without one? given that two in this world, if one's fine, two comes for free. >> so justice gorsuch, if i could, i would like to refine the question in this way. you tell me if it's unquer. i think the critqual question is would congress have wanted to have the first pro hibitions in one and the prohibitions in two if it couldn't have the licensed or authorized by law provision? i think that's the relevant question because their constitutional argument only goes to licensed or authorized by law. i think although all of these counterfactual questions are difficult, i think this might be
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the easiest one you'll ever have because i think the statute operates almost the same way. the net effect of a statute that said that states can't sponsor op, uperate, promote sports gambling schemes and neither can private parties pursuant to state law and they can't do it in violation of state law because of other provisions, what that would mean is we should have gone for the injunction against the private parties, which by the way, we did in the district court, and that issue i think is still there in front of the district court. we first filed our tro, we went against the state and against the private parties. we got a tro against both and then there was an unclean hands argument that arose only with the private parties so the district adjoined only the states. the net effect of these two statutes without authorize or license, is the same as a statue that left that to implied preemption. would congress want a statute that still told the states that you can't operate or advertise sports gambling schemes and told
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private parties that you can't operate sports gambling schemes pursuant to state law, and by the way, you can't do it in violation of state law anyway because that violates a bunch of criminal provisions. obviously, they would want that. this espres preempt provision, it's not vital. >> one sentence answer. in near line deregulation act, congress wanted a world, ie the united states, where market forces set prices. in all the acts you're talking about put together, congress wanted the united states fill in the blank. >> the congress wanted there to be, putting aside the grandfather clause, no state sponsored or operated gambling taking place by either individuals or by the state. >> now, you had to use state sponsored, and as soon as you had to describe it, you had to use state sponsored there. state sponsored means legislation, and therefore, there is no interstate policy
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other than the interstate policy of telling the states what to do. >> can i amend my answer? >> yes. >> congress in all of these statutes did not want there to be sports gambling schemes operating in interstate commerce. they were indifferent. >> congress could have prohibited sports gambling itself, so what federal policy is served by this statute that would not have been served by the former? >> two things, justice alito. first is congress could have prohibited all sports gambling, but that would have required it to regulate individuals as sports gamblers as opposed to entities, businesses that were providing sports gambling. >> that's how i amend the question. congress could have prohibited gambling enterprises itself, no question they could have done that, assuming it's within the commerce clause. what policy does this statute serve that that would not?
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>> ironically enough, justice elialit alito, it firthses federalism values by saying instead of having a one size fits all policy, which says as a matter of law, everybody who operates a sports gambling scheme is going to face ten years in prison and a fine, this says 46 states right now are more or less doing what we want, but they're doing in it 46 different ways. >> where does it serve the interest of making it cheap by allowing congress not to have to expend any funds to enforce its laws? >> with all due respect, i don't think trying to do this on the cheap was their principle concern, as i said. as a general matter, when congress passes a new federal statute, criminal statute, it doesn'ty have like a big budgetary impact because you don't have to make a new ausa to enforce that statute. you let everybody enforce it and the enforcement priorities that justice sotomayor alluded to work on that level as well.
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but what's distinct about this is that it basically says, look, 46 states, if you want to regulate this in 46 different ways, have at it. if you want to repeal those laws, you can do it. that repeal itself won't violate 37021. it might violate 37022. i think rather than have a one size fits all federal felony where everybody is going to get the same exact sentence, having a system where one state makes it a misdemeanor, another state makes it a felony, another state goes at it with all their enforcement policies -- >> what's the line you would draw as between preemption and commandeering? >> i would draw the line they drew in new york and prince because it was writing against the preemption statutes that various parties were saying relevant and parties were distinguishing. i would say unless congress
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tells states they must pass federally prescribed legislation or enforce a federal policy -- >> what's the difference between saying you must pass a certain piece of legislation and saying you must maintain a piece of legislation on the books? >> i don't think that there is a distinction necessarily between those two, but i don't think that's what paspa does. it doesn't say thou must maintain your existing prohibitions on the books. >> how is it different than that? >> it's different about that because it basically tells the states, look, you want to repeal that prohibition, you can do that. your act of repealing the law will not violate paspa. okay. and think about it analogy to baker. if a state had a pre-existing prohibition on issuing bearer bonds in baker, and it repealed that pre-existing prohibition, nothing would happen. if, on the other hand, the state itself started issue bearer bonds because there's no longer
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a prohibition or private parties started issuing them because there's no longer a prohibition, that action by the state or the private party would violate the federal statute. >> could congress just go through the statutes of the states and pick out a long list of statutes that can't be repealed except in -- >> may i answer the question? i don't think it could do that, but i think what congress did here is it said, look, we already say as a matter of federal law in a variety of provisions that people who engage in gambling businesses in violation of state law violate federal law. and we now have this prospect that maybe some states are going to authorize this, and we're going to complete our federal policy by saying look, if you're a private party and you're operating a sports gambling scheme, we don't care if you do it in violation of federal law. that's criminal, or pursuant to state law that's prohibited. i don't think that's a constitutional problem. >> thank you, counsel.
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mr. long. >> mr. chief justice and may it please the court. i think mr. olson has boiled down the state's case to what i take to be his two arguments. this a commandeering problem because new jersey is forced to keep a law on its books. both of those arguments are incorrect. as to the first, i would encourage the court to look at page 383 of the jaa. the injunction in this case did not remotely require the state to keep a law on its books. it says the state cannot give operation or effect to its preempted law. that's almost exactly word for word what justice scalia said in prince. if the state passes a law that is preempted by federal law, the state can be required not to give effect to that law. that is not conscription in any meaning of the word. as to the second, i think the
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comprehensive federal regime is a made up principle for the reasons mr. clement gives. states may not regulate commerce in a way because the states are to take their hands off of that particular part of interstate commerce. even if the court thinks it's a principle doesn't need to reach it here because there is actually a federal regime beyand paspa itself. federal law is in violation of a state law, so when states started looking at authorizing these things, congress handled the other half of the circle and said all right, look, we're not going to make it criminal, but we will give an injunkative action.
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certain section for whom the law will stay in existence, that's not authorizing, that's repealing. >> i think that would be right for the a lot of the things the states do. but if they say we can't do the
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sports book except for the 12 that already do gaming operations. >> that's the issue court avoided. i haven't look at the licensing laws in new jersey because they weren't provided to us, and it was further afield then the question presented. but the court below said it was not passing on that question because it found a different answer. but you might be right if the licenses that those two facilities hold really are general and say you are authorized to do any grahamblin permitted by law. then you might have an argument. but if all they do is repeal, what does it matter? >> i think it's something simpler to that. they want to barring all repeals so two words of the statute or law and leverage that to try to take down the entire thing. and our point is pretty simple
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if the court stick toss what it says in gunther, then that's this repeal because it channels to particular state licensed providers but not going to be most things new jersey does. and read that way? >> where is the line? third circuit said private gambling isn't covered on page 30 of your break you indicate maybe the state could have a certain dollar threshold that wouldn't be authorizing. i'm really not clear why that wouldn't be authorizing if you do a threshold in state law. what if they said you can do it at the elk club, is that authorizing? where does government draw the line? >> i think the only thing the court needs to say here is in the context of past pass ba, however the states gets there, if what it's doing is channelling sports gambling to particular preferred state preferred providers that's an
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authorization. >> and we have no record of that. any repeal of any kind, why shouldn't the respondent have to invite with that invited error in this case? >> i don't think it's a record question. i think it's, look, in the 2012 law they affirmatively said we will only let the casinos and racetracks do that, that was a problem. then they came back we'll repeal our prohibition but just for the same casinos and racetracks. >> earlier version actually explicitly licensed instead of a complete operation requirements and other things. that i don't think they would have had a snow ball's chance to say that that wasn't licensing or effectively operating. but here what they are saying is there were no laws, there is it a law prohibiting all gambling, we are going to repeal part of it and say some gambling is okay. so. >> so unless the court wants to
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say is no repeal could be an authorization, even if new jersey took away prohibition own at the bore gat a that would provide a clause to enact the prohibition, unless the court is prepared to say a repeal can never be an authorization, which would be form over substance, this particular repeal is, and i think all the court needs to say is for pass ba purpose fs you are channel go to particular entities, here 12 state licensed casinoses and racetracks, that's an authorization. and in read that way no constitutional problem. because the state to enable no longer con ship shun and they stro maintain anything. the state can do there and do nothing and perfectly compliant. >> what if the repeal is across the board? >> we said we would have no problem with that. >> you have no problem anybody can engage in any kind of gambling, 12-year-old can come in the casino, you are not
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serious about that? >> i'm very serious. the problem congress was state sponsored and sanctioned sports gambling schemes. didn't care if i bet with my buddy on the redskins game or had an office pool. wasn't going after all of it. >> but when you put the state in the position that's the only thing they can do, that's not a real choice. >> not only thing they can do. they can straighten or repeal in various ways. one thing they can't do is affirmatively engage in the one kind of conducted that congress took off the table as a policy matter. that's the definition of preemption. >> well, the last time around the government did say in recommending that we deny it, that pass ba does not require new jersey to retain prohibitions it adopted. prepass ba it is free to repeal those prohibitions in full or part. that's what the government did to the court.
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was that statement inaccurate? >> no. i think we did not take into account the games man ship they were going to engage. we said the same thing we are saying here today. this he have a lot of options on the table. one thing they can't do is the one thing that congress preempted. so we said they can engage in lots of partial repeals but we didn't have in mind that new jersey would come back and do the 2012 law but style it as partial repeal. and yes i wish we had dropped the footnote and said if new jersey tries to accomplish the same thing but styles it as something different, that will equally be a thing for pass ba purposes. and i'll completely grant that congress assumed states would not start authorizing this if they couldn't profit from that. that assumption was true for a long time. and if states start lifting it, i think congress may well want to revisit that. but pass ba doesn't have anything to say about it. and what new jersey is doing to create a small problem with two words and then try to leverage that small sickness to take down the entire patient.
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that's just not the way statutory interpretation and severe ability normally work but they have to do that because only way to get them where they want to go, which is to take down the private party in 73022, which they never argued is even potentially accommodated. >> authorization, not a repeal, because it's limited to the casinos which probably have all kinds of other rules and regulations, 9:00 a.m. hoping and da-da-da. and to those circumstances it amounts to an authorization. not simple repeal. is that the argument? >> exactly. if you are trying to figure out what constitutes an authorization to operate a sports gambling scheme, any law that says everybody can't do it except for you two or three, that's an authorization. and doesn't matter whether the state gets there by legislating up or down. >> so once you say that, i think the argument is that you see there is no federal policy, which says states can't -- there
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is no federal policy against tho authorizing sports gambling but for a state can't authorize sports gambling and that is to come dear. have i got that right? >> i think that's the argument. but it doesn't make sense. baker would not have been different in addition to having prohibition on states and individuals it had said states are preempted if barred by the act. if the court finds that, the government would respectfully submit it's going to pend a lot time unblur the line between it. >> thank you, counsel. five minutes, mr. olson. >> thank you, urn. may it please the court. >> if i've got your argument right just now, just say yes. otherwise forget it. >> you had it right before. >> no, but i had it right just now? okay. forget it. forget it. >> mr. olson, i do have a
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question following up on what the chief asked earlier. the respondent says that new jersey legislature is doing exactly what he thinks they shouldn't do or wouldn't do. which is that they are considering legislation that would fully repeal the sports betting prohibitions. and i understand it's being concerted by both houses. where does the consideration stand right now? >> well, i don't know where it stands. and i think it's utterly irrelevant. >> no, but you argued to us that no state legislature would do that. but here we have two bills introduced that would do just that. >> well, they have not -- they are not laws yet. and what i said was congress could not possibly have intended in a bill to prohibit the expansion of sports betting to have it construed in a way. >> why? let me ask you what's so crazy about congress perceiving that states would never want 12-year-olds to go into gambling
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houses and that the states would try and some way prohibiting that or living with rules of some sort of creating laws, regulations, conduct that would prohibit that sort of thing? >> what congress can do is enact a statute that places restrictions on sports betting and have a finally reticulated statute. it can adopt the provision that it permitted nevada to have, which is careful regulation of something that's taking place. what we have now is activity that is billions of dollars that is taking place throughout the united states. it is all unlawful. what new jersey decided to do. >> that's your selective -- your selective prosecution theory that they are permitting fantasy teams? >> no, i'm not talking about fantasy at all. i'm talking about betting on
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sports games. >> there are four states. >> nevada has sports betting and it has it regulated. it prohibits criminals from going into the business. it has open books and so forth. there is other three states where small slivers of lotteries. betting on sports is taking place all over the united states. 5% is legal in nerve d.a. the rest of it is illegal. new jersey decided we are going to -- >> so why don't we legal i.c.e., this is hypothetical, marijuana because and all drugs because there is rampant market out there for those drugs? but we've made a policy choice that we don't want the state involved in that. why is this any different? >> the congress of the united states enacted laws with respect to marijuana and with respect to other substances and that's in play right now because various states have done various different things.
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but we have no question here that what congress intended to do was pass a law, would look at the statute, as i said before, the statute says it's an act to prohibit sports gambling under state law, no the under federal law. the preemption process starts with the idea that there must be a federal constitutional provision in ha statute or in the treaty or in the constitution, and then the federal government may take steps to prevent states from interfering with the accomplishment of that. myo poen end, mr. clement talked about the south carolina versus baker case. south carolina versus baker said the exact same thing that new york versus united states says and prince says section 310 regulated states activities does not seek to control or influence the manner in which states regulate private parties. and the same thing is true in
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the reno case. my opponent talked about statutes of general application. in the last sentence of that case, this court specifically reserved the question, whether congress could single out states with respect to activities, and didn't decide whether it could do so in the outside of the context of the statute or general application. when this suit was first filed by the leagues, their complaints specifically said pass ba imposes a broad band on sports betting subject only to the narrow exceptions that apply here. >> you have a couple of extra minutes here. >> thank you, mr. chief justice. this is as the federal government said on page 15 of the federal government's brief, we are saying that state laws that attempt to change what new jersey has done are nullified by pass ba. anyone familiar as this court is with the history of the constitutional convention knows
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that there is specifically on the agenda an opportunity for congress to nullify state laws. that was defeated. the whole debate with respect to federalism had to do with whether congress was going to be permitted to regulate states or commerce first and as an adjunct to that constrain what states could do. and that's exactly what this statute did. the federal government the congress wanted a prohibition under state law because it would have responsibility, no accountability, and our opponent's brief says if you are complaining about accountability, call your senator, that's exactly what the united states talked about, what this court talked about in new york versus united states. the accountability is very important. the structure is important to the liberty of citizens. and this statute violates that structure. >> thank you, counsel. the case is submitted.
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>> next a discussion about terrorism and isis in north africa followed by u.s. cooperation with south korea. later prime time a look at the role at the u.s. navy in global security. . tonight on c-span a look at u.s. military officials. they discuss the equipment and people required to handle current and future global conflict. here's a preview. we are going to defend ourselves against them. we are going to keep fighting terrorists unfortunately. and we have your and asia, traditionally as congressman
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gallagher was saying this morning, areas we did not want to see dominated by another hostile power, and we'll continue to do that, i think. so everyone's candidate for this we'll scale back our ambitions, going to be the middle east. and god knows i'd love to for the region to return to tn tohe obscurity it so richly deserves, but that's just not going to happen. it's going to continue impose itself on us. so i think we are talking about risk or resources. but when we talk about resources, i think everyone automatically goes to the issue, okay, it's the budget, top line, how do we decrease it. also intellectual resources. how do we think about fighting these potential conflicts in the future differently. >> you can watch the discussion about defense in entirety tonight 8 eastern on c-span.
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>> second session of congress gets under way this week with senate on wednesday. that day swearing in of two democrat lawmakers joan doug's of alabama and tina smith of minnesota. house returns the following week on monday. in the new year faces a deadline with funding set to expire on jan 19. also on the calendar state of the union address january 30. you can watch the house live on c-span and see the senate on c-span 2. >> next terrorism threats in north africa. toe state officials testified about isis activities and influence in the region as well as efforts to combat cyberterrorism. a subcommittee held the meeting last


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