KELLY MCEVERS, HOST:
At the U.S. Supreme Court today, the justices signaled they might be prepared to strike down the federal ban on sports betting. It was enacted in 1992, and it prohibits states from legalizing sports betting except in states where it was already legal at the time. That exemption applied to only four states. But now with estimates of illegal betting running at $150 billion each year, cash-starved states are getting antsy. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The federal law was sponsored by one-time basketball great Bill Bradley, who served three terms in the U.S. Senate from New Jersey. As he put it in an interview with NPR, he opposes sports betting because...
BILL BRADLEY: It turns players into roulette chips.
TOTENBERG: But on the steps of the Supreme Court today, it was New Jersey's governor, Chris Christie, who carried the banner for getting rid of the Bradley Act.
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CHRIS CHRISTIE: If the federal government wants to pass a law to regulate and preempt, they have the right to do that. They didn't do that here. They foisted that upon us, on the people of the state of New Jersey who voted 65 percent in 2011 that they no longer wanted this law.
TOTENBERG: Inside the courtroom, former Solicitor General Ted Olson argued that because the Bradley Act doesn't clearly state a federal policy against sports betting, it unconstitutionally tramples on a state's right to authorize sports betting at casinos and racetracks.
Chief Justice Roberts - this law is pretty comprehensive. It's a total prohibition. No, it's not, argued Olson; it puts the burden of enforcement on the states, and that violates the Constitution's ban on commandeering or conscripting the state into enforcing a federal mandate. But Justices Kagan, Ginsburg and Sotomayor all noted that the court has long recognized that the federal government may preempt states from acting under circumstances such as these. Justice Kagan - it says to the states, we've got this; you can't do anything.
Arguing the other side of the case on behalf of the sports leagues was former Solicitor General Paul Clement and, on behalf of the Trump administration, Deputy Solicitor General Jeffrey Wall.
Clement got his first volley of hostile fire from Justice Kennedy. This blurs the line of accountability. The citizen doesn't know - is this coming from the federal government? Is this coming from the state government? That's precisely what our constitutional system of federalism is designed to prevent. Justice Breyer - all we have here are a group of provisions telling states what they cannot do. At the same time, the federal government does not have a clear federal policy.
The federal law is comprehensive, replied Clement. It says there's something that's essentially a cancer that we don't want to take place. Justice Gorsuch - Congress is trying to do it on the cheap so it didn't have to expend any funds. Deputy Solicitor General Wall, in his turn at the lectern, told the justices that New Jersey's claim that there's no comprehensive regime is just made up. New Jersey's only interest here, he said, is in the hundreds of millions, perhaps even billions of dollars it could reap from licensing fees and taxes on sports betting at casinos and racetracks.
Chief Justice Roberts - what if the state repealed the ban on sports betting across the board? Answer - it could do that. You're not serious, shot back the chief justice. A 12-year-old could come into a casino and place a bet. Wall replied that the problem that Congress was confronting here was state-sponsored and sanctioned gambling schemes, not a bet with your buddies or an office pool or a stray 12-year-old.
Still, when all was said and done, it looked very much as though five or more justices had serious doubts about the current law. And outside on the Supreme Court steps, an ebullient Governor Christie knew it.
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CHRISTIE: If we are successful here, we could have bets being taken in New Jersey within two weeks of a decision by the court.
TOTENBERG: Have you been planning it?
CHRISTIE: Because we're like - Nina, because we're like Boy Scouts. We're prepared.
TOTENBERG: Christie conceded, though, that if New Jersey wins this battle, the next such challenge may come from states that have legalized the sale of marijuana. Nina Totenberg, NPR News, Washington.
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