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The Right Result For the Wrong Reasons

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Today, the Supreme Court struck down the Professional and Amateur Sports Protection Act. The decision is like Neil Gorsuch driving off a cliff…in my new Maserati. I think that this was a bad law and that sports betting should be legal, so I have no objection on policy grounds. I would not have joined this opinion or voted to strike down the law, however, because it rests on the anti-commandeering doctrine, another line of Rehnquist-era federalism decisions inferred from structure of the Constitution that I think is wrong. As Justice Stevens concluded:

When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. This conclusion is firmly supported by the text of the Constitution, the early history of the Nation, decisions of this Court, and a correct understanding of the basic structure of the Federal Government.

Stevens was right then and he’s still right. But the liberals don’t have the votes to overrule this line of cases and Ginsburg — while not conceding — did not press the point in her dissent, which is fine as far as it goes. The key point of difference was about severability: Breyer (who otherwise joined the majority) and Ginsburg and Sotomayor (who didn’t) argued that the relevant provision should be served from the rest of the statute, while the majority held the PASPA unconstitutional in its entirety.

Severability is a difficult issue, and in this particular case I don’t have a strong view although I probably would have joined RBG’s dissent rather than Breyer’s concurrence. My one concern is that making counterfactual assumptions to hold provisions non-severable has the real potential for mischief, allowing future conservative courts to nullify statutes over minor issues (as, indeed, almost happened with the ACA.) One lesson going forward is that Democratic Congresses will need to add language allowing for provisions to be severed to all major statutes unless there are very good reasons for not doing so.

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