On Monday, May 14, the Supreme Court ruled in favor of the State of New Jersey in the case of Murphy v. NCAA and overturned key components of The Professional and Amateur Sports Protection Act (PASPA), which made it unlawful for a state to “sponsor, operate, [or] advertise...betting, gambling, or wagering schemes based...on competitive sports events.” While states like New Jersey now stand to gain millions of dollars from football season earings alone, non-interested states such as California may want to read the finer points of Murphy v. NCAA. The case reveals an intricate and illustrative look into the current Court’s feelings about anti-commandeering, which will prove useful in California’s fight against the Trump Administration over federal immigration policies and protection for so called “sanctuary cities.”
On March 6, 2018, the Justice Department sued the State of California and its Governor, Jerry Brown. The Justice Department seeks to permanently enjoin three California laws; Assembly Bill 450, Assembly Bill 103 and Senate Bill 54. Combined, these three laws impede the ability of both state and local officials, as well private employers in California, from cooperating with federal immigration officials seeking basic information relevant to immigration enforcement. Essentially, California wants to protect the rights of its citizens to refuse the federal government when asked for immigration information. Considering a majority of the nation’s undocumented immigrants currently reside in California, these laws can seriously undermine the federal government’s efforts to enforce its immigration policies. Thus, in typical Trump fashion, the Justice Department sued California! Under 8 U.S.C. § 1357, which outlines the powers of immigration officers and employees, Congress authorized states and localities to, “cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” So, on a plain reading, it would appear that California’s actions violate federal law, and since federal law supersedes state law, California is breaking the law...right?
Enter Murphy v. NCAA.
As part of a 2012 ballot initiative, New Jersey voters overwhelmingly voted to legalize sports gambling in their state. Subsequently, the NCAA and three major sports brought suit in federal court, alleging that New Jersey’s scheme violated PASPA, a 1992 law outlawing states from authorizing or promoting gambling on professional sporting events. Side note; PASPA grandfathered in Las Vegas and four states which already had legal sports betting operations in place. New Jersey opted to challenge the law on constitutional grounds, arguing that PASPA violated the Constitution's anti-commandeering principle and prevented it from modifying its laws prohibiting sports gambling bans.
For legal novices, anti-commandeering is a Constitutional principle which holds that since the Constitution divides power between the federal and state governments, one government cannot use officers of the other to carry out its laws or directives. The pre-eminent Supreme Court case outlining and deciding what constitutes commandeering is Printz v. United States. In Printz, the Brady Handgun Violence Prevention Act contained provisions which required the Attorney General to establish a national system for instantly checking prospective handgun purchasers' backgrounds. However, until the national system became operative, the law required the chief law enforcement officer of each local jurisdiction to conduct such checks and perform related tasks on an interim basis.
The Court found this violated the Constitution because it forced state actors to assume accountability for federal policies and deflected the blame if said policies failed. Essentially, the Court felt that if someone had a problem with Brady, they should blame the federal government, not the state officials forced to act on their behalf. Please remember, anti-commandeering does not involve deciding whether state or federal law is superior. The Supremacy Clause of the Constitution mandates deference to federal law if a conflict exists with state law. The principle of anti-commandeering holds that regardless of the goals or aims of a federal law, the burden of enforcement should not fall on state officials. It is the Constitution’s way of screaming, “let the federal government enforce its own laws!”
In Murphy, finding in favor of New Jersey, Justice Samuel Alito wrote that the “provision [of PASPA] unequivocally dictates what a state legislature may and may not do...as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” Thus, for Alito and a majority of the justices, just because the federal government’s views differ from a state government, it does not have the right to remove states from the legislative equation and decide an issue on their behalf. If a state wants to go its own way and refuse to enforce a federal policy (i.e. PASPA), it has a right to do so.
I’m not in the prediction business and cannot say for certain how the Supreme Court will decide future cases. However, if the Justice Department’s suit against California does reach our nation’s highest court (which it likely will), Murphy provides a good indicator of how the current court feels about commandeering. Although the Court decided Printz over 20 years ago, the sentiments among the justices remain the same. Critics will argue that California’s laws impede the federal government’s ability to carry out its immigration policies. However, that argument misinterprets the law because California cannot impede on federal immigration policies by disallowing help from its own officials that the federal government was never entitled to rely on.
The true fault lies with federal officials who drafted a policy they were unable to enforce on their own. After Murphy, it is clear that the current Court’s feelings about commandeering essentially mirror the Court from Printz; state officials are not obligated to enforce federal laws because such actions offend the notions of Federalism. If anything, California’s actions to protect undocumented immigrants also protect its officials and employers while promoting the concept of dual sovereignty.
Joseph Gulino, an attorney and educator, is an MDC DSA member in Montgomery County.