Sports events have always attracted betting. The more prestigious the level of play and the event involved (say, the Super Bowl and World Series) the greater the wagering.
But the Supreme Court disastrously crossed a red line in the 2018 case Murphy v. National Collegiate Athletic Association. In it, the Court ruled that the Professional and Amateur Sports Protection Act of 1992, which prohibited states from sponsoring, advertising, or “authoriz[ing]” sports gambling, was unconstitutional on the grounds that it violated the “anticommandeering” doctrine that the Court had previously read into the Tenth Amendment. That is, since the Tenth Amendment states that “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,” the 1992 Act unconstitutionally dictated to state governments the limits of their powers. (Coincidentally, the Court first enunciated its anticommandeering rule in an unrelated case during the same year that the Professional and Amateur Sports Protection Act was enacted.)
On purely textual grounds, there is reason to doubt the correctness of the anticommandeering doctrine, since as the great constitutional scholar Walter Berns pointed out in a 1962 essay titled “The Meaning of the Tenth Amendment,” the Tenth Amendment, read literally, is just a tautology: it says that the powers that the Constitution doesn’t delegate to the federal government are thereby reserved to the states and/or the people, without specifying just what those powers are.
In fact, as is well known, since at least the late 1930s, federal courts have consistently adopted an extremely broad view of Congress’s powers under the Constitution, especially when it comes to domestic spending and regulation: consider the extensive volume of New Deal legislation that the Supreme Court upheld starting in 1936, along with Lyndon Johnson’s “Great Society,” which authorized the establishment of entire cabinet departments that are nowhere mentioned in the Constitution; Obamacare; and Joe Biden’s egregiously mislabeled “Inflation Reduction Act.” But while the Murphy decision hinged on a somewhat arcane distinction between the federal government’s authorizing or prohibiting a particular mode of conduct and its imposing the burden of such a prohibition on the state governments, subsequent events have demonstrated the imprudence of that decision. Among those harms are an explosion of publicly advertised sports betting: many of the ads during televised sports events are sponsored by gambling companies like Draft Kings and FanDuel, duping people who can ill afford to lose substantial amounts to do just that. Each ad is accompanied by a 1-800 number that problem (that is, addicted) bettors can call for “free help.” (What if cigarette ads were once again posted on television, accompanied by the counsel, “Got lung cancer? Call for free help!”)
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