Marijuana Federalism by Jonathan H. Adler

Author:Jonathan H. Adler
Language: eng
Format: epub
Publisher: Brookings Institution Press

THE MURPHY DECISION IN THREE STEPS

Following Christie II, New Jersey petitioned the Supreme Court to hear its claim (first broached in Christie I) that PASPA effectively forced the state to prohibit sports gambling and, thus, violated the Court’s anti-commandeering rule. The Supreme Court granted certiorari in Murphy, so renamed because New Jersey had elected a new governor.

This time, New Jersey prevailed. The Murphy Court reversed the Third Circuit’s decision in Christie II. It found that PASPA, indeed, violated the anti-commandeering rule because it effectively forced New Jersey to ban sports gambling under state law. It also found that PASPA could not be salvaged as a valid preemption provision. Justice Alito wrote the opinion for the Court, which, while divided six to three on the issue of severability, was arguably unanimous on the commandeering and preemption issues.

Justice Alito’s opinion for the Court proceeded in three steps. I will walk through each of these steps in turn and then explain the implications of each for state marijuana reforms.

Step One: To Repeal a Ban Is to Authorize Activity

In the first step, Justice Alito had to interpret the meaning of “authorize,” as that term is used in PASPA. The parties had offered competing definitions of the term. As described by Justice Alito:

Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration. One of the accepted meanings of the term “authorize,” they point out, is “permit.” … They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization.…

Respondents interpret the provision more narrowly. They claim that the primary definition of “authorize” requires affirmative action. To authorize, they maintain, means “to empower; to give a right or authority to act; to endow with authority.” And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations.9

Ultimately, the Court adopted the definition favored by New Jersey, although it suggested the 2014 law had “authorized” sports gambling under either party’s definition of the term:

When a State completely or partially repeals old laws banning sports gambling, it “authorize[s]” that activity. This is clear when the state-law landscape at the time of PASPA’s enactment is taken into account. At that time, all forms of sports gambling were illegal in the great majority of States, and in that context, the competing definitions offered by the parties lead to the same conclusion. The repeal of a state law banning sports gambling not only “permits” sports gambling (petitioners’ favored definition); it also gives those now free to conduct a sports betting operation the “right or authority to act”; it “empowers” them (respondents’ and the United States’s definition).

The concept of state “authorization” makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way.

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