bill your argument first this morning in case sixteen four seventy six christie versus n c a a in the consolidated case sixteen for seventy seven the new jersey thoroughbred horsemen's association versus  thank you mr chief justice and may please the court one of the most important decisions made at the constitutional convention from seventeen eighty seven was replacing the failed confederacy that govern states with a national government that could regulate individuals but not states in the words of this court in the new york case congress may regulate interstate commerce directly when when the government cram state laws the government of the federal government has initially taken the position or taken an action to regulate interstate commerce in some respect and when it does that this court has repeatedly held it don't but if you don't you won't regulate neither we the as a matter of fact what the consequence of that is that the states could regulate according to the standards established by the federal government with respect to the regulation of interstate commerce and of the states chose not to do that the field was left to the federal government this is a direct past but it is a direct command to the states without any effort to regulate sports wagering it was a line deregulation act is the obvious example yes and the airline deregulation act is a very very good example because in that case the congress of the united states took a wide responsibility with respect to airline deregulation airline regulation as a matter of fact that statute has a pan a plea of provisions regulating airlines and various different respects including that it's not as they have done is that we don't want the price in groups of airlines deregulated period we want to regulate it well that's the federal statute and it says no states you can't regulate them and we don't regulate their prices free market does ok here they say  of that they say we're not going to regulate sports gambling at all we're not going to forbid it and we don't want you or we you know we want you to forbid it i mean you can you see the end now i do see the analogy referring to the discussion is in great detail the federal regulatory scheme which included as a portion of the federal regulatory scheme a preemption of the states from regulating fares conditions of service and that sort of thing but what justice brier that is an area it's a class a quintessential example of the federal government taking responsibility for how airport lines flew in this country and deciding in certain areas yes it could be preempted this statute is completely what does that mean what would you be looking for when you say that the federal government took response and realty i mean suppose that the federal government had just said we don't want states to regulate we don't want to regulate ourselves we just want i think this is what justice briar's question was a free market so is that enough responsibility that the federal government has taken i believe it is not because that is a situation where the where the congress would be saying we're choosing to regulate states we're telling states that you may not participate in regulating commerce that is taking place in your state we don't want to take any responsibility we want to put the burden an expense and accountability all on the states to do so this is that quintessentially what that the the think you're going to miss can mr olson is you're suggesting that the federal government in order to preempt state activity has to itself and that some kind of comprehensive regulatory scheme and the question is you know how what would we be looking for if that if that were our test when do we know that they the nap did a sufficiently comprehensive regulatory scheme in order to allow preemption of state rules the only thing that i would say in response is a predicate to answering your question is it that when you say sufficiently comprehensive to the extent that the state the federal government congress has taken responsibility to regulate in that field once it is done so it can then preempt under the supremacy clause inconsistent or contradictory state laws but the supremacy clause is where this preemption all comes from it requires that says that there be above the constitution statutes or treaties shall be the supreme law of the land the court is construed that repeatedly and it doesn't even have to be inconsistent if the federal government occupies the whole field yes and that's like southern pacific versus arizona that the state cannot regulate the length of the  legislate then they will be preempted full first to no not i think if i understand your question correctly justice kennedy is if congress had taken responsibility to decide to do something about sports wagering by regulating it in some respects or taking responsibility in some respects and then it could say that where a state is doing something that's inconsistent then that can be preempted but the title of this statute says it all so that's an act to prohibit sports gambling under state law so what congress was saying there and when congress passed the statute it had a report from the congressional budget office that specifically said this will have no budgetary impact on the federal government and we interpret that as saying that if you do regulate then it will be printed if you may be preempted of the federal jack and i'm seeing this i think is this your argument don't just say yes it doesn't forget the airline it was a bad example for this reason and i think what you actually say is the federal government makes a determination of what interstate commerce will be like in respect to this particular item it can do that will including a determination it shouldn't be begun to determination ok once it makes that determination it can forbid state laws inconsistent with that determination that's called preemption but what it can't do is say that our determination is that the states roughly can do it as they want but they can't do it that way for to do that is to tell the state how to legislate in which case it is the state and not the person who becomes the subject of  federal law i wish i'd said that myself just what you did say it in new york i'm trying to get your argument is and my argument is that you argue that is my argument and the court said it almost the same way in new york versus united states congress could preempt state radioactive waste regulation but the tenth amendment limits the power of congress to regulate in the way it is chosen in that case to route instead of directly regulating congress commercial activity by the state if it's licensing senos and horse racing isn't it involved in a commercial activity certainly is a commercial activity when government when state individuals are engaged in betting on sports having a sports why isn't it when the status licensing that it's it does making money from the like doesn't change the character of the underlying activity the constitution or danes who may regulate that commercial activity presuming that it's interstate commerce once that sat i never understood the camping not to be you have to just watch the lines i think on the highways coming from all different directions and states going to gambling casinos yes but it is if it is a commercial activity by the state haven't we've already said that the federal government can  regulate that activity by the state yes and in fact you know why is it that selling the states that it can't license participate in authorize or otherwise involved itself in gambling a strict probation of a commercial actor it's a it's the question is interstate commerce and yes just as the language in the new york case which i just quoted congress may regulate that field if it does regulate that field which congress has not chosen to do in this case it then can preempt inconsistent state laws i would float you you would not challenge thirty seven and two subsection to have you thirty seven old  section two is simply a counterpart to subsection one but you didn't challenge it will we challenge the entire statute but we were not sued under that section we were sued for violating section subsection one subsection two is another side of the same coin because subsection two says pursuant to law the law that's refer to an subsection one we say is something that the states can do and  congress chose to prevent it it would be unconstitutional but that subsection by its terms those subsection two operates on individuals and not the state only only if individuals operate pursuant to law which means pursuant to the state law which is referred to in subsection one this is a little confusing because the way congress chose to do it what the government refers to that is a belt and suspenders thing and what it is and i sort of  condon case or the south dakota i mean south carolina versus baker case where the federal government choose to act a law of general application to have that applied to private parties engaged in interstate commerce and applied the same law to the states when the states were engaged as a market participant in the set to the same degree as interstate commerce and interstate commerce so to the extent that congress had initially decided to regulate this area and put itself into the field over regulating private persons and gauged in the activity it could then address the states if the states choose to engage in the same activity so he took  because the congress didn't attempt to regulate interstate commerce directly and it could then if it did so which it did not do so quite obviously it could then regulate the state as a market participant to that they can't regulate it if the regulation is going to be a total ban but not that's the it's that's a very comprehensive no i understood i agree with what the way you stated it but that is not passable if past post said we prohibit sports betting sports gambling on sports then it could address the state as a participant in that same activity it did not do so this statute does have tempted to have the states and that's why i quoted the name of the statute to prevent sports gambling it didn't stop there it said sports gambling under state law and what it intended to do this is what you talked about in the new york case new york versus united states is it put the accountability the expense the responsibility the burdens on the states and basically said as that as the congressional budget office says it won't have any effect on the federal budget because the federal government is doing nothing also said in the senate report it won't have any regulatory impact so suppose i read these cases and setting up a principle that the federal government can't conscript state officials for its own purposes you know the federal government can does whatever it wants consistent with the commerce clause but it can't conscript state officials in order to do help them to help the federal government do it if that's the way i see these cases what's being who's being  conscripted in order to do what you're what is what it is it's both conscription and the court uses the word commandeering yeah i'm directing the states all of those terms all those verbs are applied in this what is being conscripted here is the legislature of new jersey has been told that it may not regulate an activity that's taking place in new jersey all over new jersey it's there is illegal gambling going on it can't regulate that activity the legislature  just the way you say that mr olson the federal government is saying to the states you can't do something so that sounds to me the language of preemption all the time the federal government takes some kind of action passes a law and then says to the states you know what we've got this you can't do anything it is so fundamental in the at the constitutional convention and i've been discussed in most detail in the new york case that the difference is that in those circumstances where congress has taken the step of regulating commerce it can preclude state efforts that interfere with that or can conflict with that but when it sets out at the initiative at the at the first stage of of regulating the legislature here we have a situation where a court has ordered pursuant to my opponent's briefs ordered told no jersey you can't repeal a statute that you've tried to repeal you have must keep on the do you see no difference between the federal government saying to a state look you can't take some preferred policy option that you would like to take  and on the other hand the federal government saying to a state you must help us do something because i thought that our cases were all about the second thing you must help us you must be our little assistance when we  promote or try to advance a policy objective and i guess what i'm asking you for is how is the new jersey being put in that position with respect to the statute in new jersey in many ways new jersey is being told it may not regulate in the way it should its legislature chooses to exercise its discretion with respect to an activity taking place in that state it must enforce a law and keep a law on the court said that and the court said you may repeal any portion of your statutes you may take any policy that you want to take the federal government said you may repeal all or any part of your sports betting probations that's exactly what new jersey did but you can imagine just as ginsburg having a law that a federal court has ordered new jersey to keep on the books it provided prevents it from repealing that law which means it's the same as requiring it to an act that law and requiring to maintain that law on the books and then the officials of new jersey the law enforcement people in new jersey the governor of new jersey saying well we're not going to enforce that law on the books after we took  injunction the governor that he has to force the slow it to know what it says that the repeal must be reversed if if a act is unconstitutional those laws basically go by the wayside don't matter what but my question to you is i don't i read the injunction i don't see it anywhere except being the governor who has to enforce these pro no it doesn't what the what the governor's responsibility to enforce the law mr olson if every governor enforced every law on the book the state would be more than thank or it would have no way of surviving i understand there are countless laws and even laws that are in force that are not enforced totally mates make choices all the time yes and what the states make those choices them here we have is nothing here telling this that it has to enforce this law it is an order from a federal court saying that the legislature having repealed a statute must on repeal it put it back on the books and what you're saying is that the governor doesn't have to enforce that law it's a law on the books of new jersey the governor and executive branch in new jersey officials have taken an oath to uphold the laws of the state of new jersey and here's a federal court that comes along and basically says we're going to order this statute to be back on the books but just forget about it this is a very very strong difference between that and this law is unconstitutional this law is preempted or just a simple ruling by the court this law is preempted period end of story this was a repeat if if if as i said the court had simply said this is preemptive and what this what the this is in your question is a repeal a prohibition of sports betting which means the repeal that the legislature carefully did in response to the third circuit's decision and the government and the league's both saying you're may repeal any law you will i have three ways of looking at this case or if the issues here the first way is to say that this is a repeal which is it seems you're arguing and you're saying us does or does not th statute permit the repeal and if i say if we pick permits repeals of all kinds partial or complete partial or not partial we have for the constitutional question because then you could do whatever kind of repeal you want the second way to look at this is that the statute does not prevent repeals at all that's what you're arguing right now that would make this statute unconstitution and the third approach is basically what the government is arguing here which is it prevent it permits complete repeals but not partial repeals because partial repeals of the nature taken here are actually authorizations that are prohibited by the law so those are the three approaches and i'm missing something in one of the those approaches yes because the effect of the statute is to prohibit new jersey the statute with these other limited expect exceptions is illegal what what new jersey is decided not just that we want to repeal because if you repeal all the old you did make the argument below that there was no authorization because the statute decision as we normally we normally interpret statutes and ways to avoid constitutional difficulties not in ways to create yes and the only way to avoid that's been suggested here is that there may be some of peel's and the third circuit used the language too much too much authorization which is very much like the language in the prince case too much policy making and the court said in that case that's not a line that's permissive with respect to regulating what the states are doing prohibit the spread of sports betting and our opponents say well in order to make the statute constitutional because they recognized the commandeering problem right from the beginning in order to make that constitutional you will we cannot allow you to eliminate all prohibitions in sports betting so and as an effort by congress to stop the spread of sports betting would lead to an interpretation in order to hold a constitutional we're all limits on sports betting were removed if of corporal mitch i would like to clement mr chief justice in may please the court passed but does three basic things first it tells the states that they may not themselves operate or advertise sports gambling schemes such as a sports based lottery or a sports book second it tells private parties in thirty seven zero two two that they may not operate or advertise a sports gambling scheme pursuant to state law and thirdly it tells states that they may not authorize or license third parties to conduct those sports gambling schemes that would violate federal law but history does this mechanism it leaves in place the state will that the state does not want so the citizens of the state of new jersey are bound to the burial of the state doesn't want but that the federal government compels the state to have that seems commandeering just as kennedy we don't think past operates in that way we think that if new jersey wants to say we're going to lift all our prohibitions we think it least as to that law it would not be preempted by passed but as written i think it's a separate question especially in new jersey where the private conduct that would take place pursuant to that repeal what could the state do well first of all i think it's important to recognize that what passed the regulates and it does regulate it quite comprehensively is the operation of sports gambling schemes it doesn't actually regulate sports gambling in the generic sense and it says nothing about individuals in gauging in sports gambling so if new jersey wants to say look all are prohibitions which right now are both on the supply side in the demand side all of its prohibitions on the demand side it can partially  state enact a law the federal government numac to lossing notice that he shall pass an income tax greater than six percent i think it might be able to do that because put it this way i mean i don't know why in principle that would be so different from the statute at issue in baker which says no state shall issue a bare notion that you wish to but there are beyond i so i think it's the same but i think to the extent there would be anything odd about it and it's what mr olson suggests it's odd about past but is this idea that there's just a preemption provision and even he seems to concede that if congress regulated the field that there would be no problem with the preamble it seems to me that be something a little more odd about it which is it goes to the fundamental  powers in prague is of a state to sort of function their own government if you say you can go so far as to regulate what level of income tax they can charge you right mr chief justice i thought you maybe i should amend my remarks to say i don't think that would be a commandeering problem with that statute now there might be some other federalism problem you know i think if this if the court if congress tells the state to move its state capital i'm not sure it's commandeering problem i just think that it's you know i mean not to use the word maybe i'm not supposed to but maybe it's a national league of cities problem but i don't think it's commandeering pro you could imagine a situation where it's the same kind of commandeering the federal government wants to reduce expenditures on public employee pensions so it tells the there's a state law you cannot spend more than twenty percent of your budget on state employee pensions their commandeering the state to achieve that result can they do that it get i don't think that's a commandeering problem i do think it's a national states league cities problem and you know if the court wants to say that there are certain things that get too far into the court the state's kitchen you know that's one thing but i do think just hypothetical indicates that this blurs political accountability this is and doesn't as coming from the federal government this coming from the government that's precisely what federalism and designed to prevent and pursue eisley in new york this court said there's not an accountability problem with preemptive legislation and i do think it's worth and just to finish the point i mean i do think it's worth recognizing that you have three pieces three legs of the stool if you will one says the states you can't do this that the other side doesn't have an objection to the other one says private parties you cannot do this pursuant to state law that because it's regulation of private parties there are other statutes that rely on the prohibition of state action without an accompanying federal policy justice kennedy i don't know that there are i actually think maybe there are it's just that the federal policy that they enforce is implicit so there's a provision that says that you can't have discriminatory taxes against railroads that's all the provision says i soon interpret that you think well congress has said that they don't want to have that kind of discrimination interstate commerce but here you don't have to look where the federal policy is they say we don't want sports gambling schemes we don't want the states to do it we don't want the private parties to do it is it is certainly isn't enough just to say it's you legal for and do these people or otherwise to engage in gambling on sports events that would be the federal government regulating this area and then it has what is the normal preemption clause with it says where it says not with a nice notwithstanding any state law to the contrary and mr chief justice i think at the end of the day that's what passed but does i think it was worded in a particular way for a particular reason which is the one set of federal statutes you should look at inter putting past are the preexisting provisions in title eighteen that already told private parties that if they engaged in a sports gambling scheme or a gambling business in violation of state law that was already a federal felony ten eighty four of title eighteen thirteen zero one three thirteen zero four of title eighteen as to lotteries and probably most clearly a very odd way that's a very i mean this is of course subsection two it's a very odd way to phrase something it's illegal if it's pursuant to state law but missed in other words if the state law says you can do it that's the only situation in which it's illegal if the state law doesn't say anything about it will feel free you can do it but mr chief justice that's why i think the oddity goes away entirely if you understand that before congress passed passed but it was already unlawful as a matter of federal criminal law for a private party to operate a sports gambling scheme in violation of state law so  all back for a second one of the purposes which is not the one justice kagan mentioned but it's the best one as this case is concerned that i could find is the notion that federal statutes should address themselves to individuals and not to states or i know that can't be one hundred percent true because we have all preemption but you can still look at it is basically true w preemption being a commerce clause based for example exception then ask what have we here well is there nitsa you know transportation safety act osha nothing like that there is no federal regulation of that kind is there deregulation act which says it is the federal policy that there will be free enterprise in fares no because all the things you mentioned have the word state law in it so all we have here are a group if you like of provisions all of which are addressing themselves to what kind of law a state may have without a clear federal policy that distinguishes between what they want states to do and what the federal government is doing given those circumstances it falls on the subject matter of this law is the state that's what this is about telling states what to do and therefore it falls within common diri loan but that's how i was reading new york the notion of not addressing itself to the states and it's long so that you can answer the who thing well i'll try to answer the whole thing but i'll start with the proposition that we know there's absolutely nothing wrong with congressional legislation that operates on states as market actors and that's what the first four prohibitions in thirty seven zero two one plane we do they still tell the states you can't operate advertise sponsor or promote sports gambling schemes so that's ok it also tells private parties that you can't do those four things pursuant to state law and keep in mind those private parties can't do it as a matter of federal law in violation of state law because it's a federal criminal prohibition so all that leaves then is the provisions that they've challenge the license or authorize and all those are in the context of this statute is an expressed preemption provision which course it's addressed to the states and local governments because states and local governments are the ones that can pass laws that might be preempted but i don't think it creates the problem think about it i think it's very analogous to baker in baker congress told the states they couldn't have bare bones they also told private parties you can't have bare bones but you'd be but you begin by you're already telling the states that they can't do something just like congress did in baker you can't issue bare bones thirty seven zero two two especially right against the backdrop of statutes like eighteen u s c nine hundred fifty five i tells private parties you can't issue bearer bonds you can't operate sports gambling schemes so the only thing in the middle is a provision that says states you can't authorize or license private parties to engage in conduct that violates federal law if that provision were in the statute i think the same laws would be implied lee preempted under those that apply implied preemption and if congress says expressly those laws states don't do that don't authorize and don't license private parties to engage in conduct that would violate federal reaction you said subsection two is the other side of the coin of subsection one and it seems to me that if that's the case that subsection two cannot be several from subsection one well i don't know if i used the phrase other side of the coin your honor but i do think that it is not just several i think it operates independently and it operates without even a constitutional issue to do the same thing right because it says it is illegal for individuals to follow state law we're gauging activity protected authorized under state law which seems to me to be the same thing as saying states shall not authorize individuals to do that well your honor couple of points one is i do think there's some difference in text between thirty seven zero to two and thirty seven zero to one and i think there's an argument that the parties haven't had to brief here because this really hasn't been a thirty seven zero two case but i think there's a good argument that thirty seven zero two two is actually broader and pursuant to law it's broader than license or authorized by law so just put that to one side that what i would say is particularly when you read the thirty seven zero two two against the backdrop of the preexisting federal statutes in title eighteen that made operating a sports gambling scheme in violation of state law a federal criminal prohibition then it's a comprehensive scheme it basically says private parties there's something that essentially a cancer on interstate commerce that we don't want to take place and that is mr quinn how do we know that congress would have passed to without one one makes the regulation free because it says states you have to do this and it doesn't cause any budget impact on the federal government to under your interpretation is a direct regulation by the government and therefore might cost money and you could see a legislature saying well you know one makes sense and i'm only going to vote for two because of one because it's free it comes for free so so just of course which i like to make two points in response to that one is on this idea that the c b s scored as being zero and sort of it's free we actually looked at other preemption provisions and other federal criminal provisions and c b o tends to score them the same way they basically say that's neither here nor there ok but then it says mike my question my question is if we're asking the  justice posed to you one of the questions we have is what congress would have done in a different world now that's very hard question to answer but that's the question we were posed and how do we know congress would have passed two without one given that two in this world if it's if one's fine to comes for free so just discourse if i could i'd like to refine the question in this way you tell me if it's unfair but i think really the critical question is would congress have wanted to have the first four prohibitions in one and the prohibitions into if it couldn't have the license or authorized by law provision i think that's the relevant question because their constitutional argument only goes to license or authorized by law and i think that although all these counterfactual questions are difficult i think this may be the easiest one that you'll ever have because i think the statute operates almost the same way the net effect of a statute that says th states can't sponsor operate advertise promote sports gambling schemes and neither can private parties pursuant to state law and by the way they can't do it in violation state law because of other provisions that world what it would mean is we should have gone for the injunction against the private parties which by the way we did in the district court and that issue i think is still there in front of the district courts and we first filed our t r o we want to gets the state and we want to get the private parts we got to to yarrow against both and then there was an unclean hands argument that arose only with the private parties so the district joined only the states but the net effect of these two statutes without authorizer license is the same as a statute that sort of left that to imply preemption it's essentially the same statu so i think the counterfactual world would congress want a statute that still told the states that you can't operate or advertised sports gambling schemes and told private parties that you can't operate sports gambling schemes pursuant to state law and oh by the way you can't do it in violation of state law anyways because that violates a whole bunch of criminal prohibitions obviously they want that you know this expressed preemptive provision it's like need lawmaking but it's not vital and sentence answer in the airline deregulation act congress wanted a world i e the united states where market forces prices in all the actor talking about put together congress wanted the united states through in the blink the congress wanted there to be putting aside the grandfather clause no state sponsored or operated gambling taking place by either individuals or by the state now you had to use the word state sponsored t and as soon as you had to describe it you had to use the word state sponsored there are state sponsored means legislation and therefore there is no interstate policy older than the interstate policy of telling the states what to do and i met my answer congress congress in all of these statutes did not want there to be sports gambling schemes operating in interstate commerce because they were indifferent congress could have prohibited sports gambling itself so what federal policy is served by this statute that would not have been served by the former two things justice alito first is congress could have prohibited all sports gambling but that would have required  regulate individuals sports gamblers as opposed to entities business is that we're providing sports gambling so and so i amend the question congress could have prohibited gambling enterprises itself no question it could have done that assuming it's within the commerce clause what policy does this statute serve that that would not ironically enough justice alito it actually furthers federalism values by saying instead of having a one size fits all policy which says as a matter of federal law everybody who operates a sports gambling scheme is going to face two years in the federal penitentiary and a fine of ten thousand dollars this statute basically says look forty six states right now are more or less doing what we want but they're doing it in forty six different ways and in some cases it's sort of the interest of making it cheap by allowing congress not to have to expend any funds to enforce its laws with all due respect i don't think trying to do this on the cheap was their principal concern as i said as a general matter when congress passes a new federal statute criminal statute it's doesn't really have like a big budgetary impact as you don't like have to make like a new a usa to enforce that statute you just let everybody enforce it and the enfor priorities the justice sotomayor alluded to work on the federal level as well and if you preempt state law that tends to not have a budgetary impact either but what's distinct about this is it basically says look forty six states if you want to regulate this in forty six different ways have at it if you want to repeal those laws i mean you can do it i mean that repeal itself won't violate thirty seven zero two one the sports game that takes place pursuant to it might violate thirty seven zero two two i actually think that rather than have a one size fits all federal felony where everybody's going to get the same exact sentence having a system where in one state makes it a misdemeanor another state makes it a felony another state goes at it with all their enforcement regular policies because they think  s really important what's the line you would draw as between preemption and commandeering i would draw the line that this court threw in new york and prince because it was writing its opinions against the backdrop of all sorts of preemption statutes that various parties were saying were relevant and the court was distinguishing i would say that unless the congress basically tells the states that they must regulate that they mates basically pass federally prescribed legislation or enforce a federally federal policy as in play what's the difference between saying you must pass a certain piece of legislation and saying you must maintain a piece of legislation on the books i don't think that there is a distinction necessarily between those two but i don't think that's what passed but does pass but doesn't say that must maintain your existing prohibitions on the books if you know is it different from that if it's different about that because it basically tells the states look want to repeal that prohibition you can do that your act of repealing the law will not violate passbook ok i mean you know and think about it in analogy to baker if a state had a preexisting prohibition on issuing bonds and baker and repealed that preexisting prohibition nothing would happen if on the other hand the state itself started issuing barry bonds because there's no longer a prohibition or private party started issuing bearer bonds because there was no longer a prohibition that action by the state or by the private party would violate the federal statute that's the way past works just federal so the statutes of the states and pick out a long list of statutes that can't be repealed except in full question no i don't think you could do that justice alito but again i think what congress did here is that said look we already say as a matter of federal law in a variety of  people who engage in gambling businesses in violation of state law violate federal law and we now have this prospect that maybe some states are going to authorize this and we're going to complete our federal policy by saying look if you're a private party and you're operating a sports gambling scheme we don't care if you do it in violation of federal law that's criminal or pursuant to state law that civilly prohibited by passed but i don't think that's a constitutional problem thank you counsel chief justice and may please the court i think mr olson has boiled down the state's case to what i take to be his two basic arguments this is a commandeering problem he says because new jersey is forced to keep along his books and there's no accompanying comprehensive federal regime both of those arguments are incorrect as to the first i'd encourage the court to look at page three eighty three of the g eight the injunction in this case does not remotely require the state to keep along its books it says the state cannot give operational or effect to its preempt a law that is exactly almost word for word what justice scalia said in prince the supremacy clause requires if the state passes a law that is preempted by federal law the state can be required and state officials can be required not to give  law that is not conscription in any meaning of the of the word and as to the second i think this comprehensive federal regime is is a made up principle for the reasons mr clement gives a federal statute often says states may not regulate interstate commerce in a particular way because the federal policy is just that the states are to take their hands off of that particular part of interstate commerce but even if the court thinks it's a principle it doesn't need to reach it here because there is actually a federal regime beyond past which itself federal law criminalizes the operation of a gambling scheme is in violation of state law so when states in the early ninety's started looking at authorizing these things congress handled the other half of the circle and said all right look we're not going to make it criminal but we will give an injunctive action to the attorney general and the leagues so that if states start authorizing sports gambling schemes which we know states can't do and we know individuals can't do and they've never argued there's any constitutional problem with those two legs of the stool that if states start doing that will give a civil injunctive action and that's far less invasive of state sovereignty and i think look that this is i mean us mr prince has a big role over again the states can't do it in the individuals can't do it they've never argued there's any can you go back to the basic question that was raised i think by the dissent judge twenty's who said you start this discussion from the fact that the law exists if it's a partial or full repeal the law doesn't exist period end of story and lot of the things that the state would do but when the state says we're going to repeal our law in such a way that nobody in the state can run a sports lottery or sports book except for the twelve state license casinos and racetracks that already conduct authorized gaming operations shoot at the court  i haven't looked at the licensing laws new jersey because they weren't provided to us and it was further afield in the question presented but the court below said that it was not passing on that question because i found a different answer but you might be right if the licenses that those two through sylvie's hold really are our general and say you're authorized to do any gambling permitted by law then you might have an argument but if they do this repeal what does it matter so i think it's even simpler than that just suddenly or it gets to something just as course it said earlier they want to interpret the statute as boring all repeals so that they can create a constitutional problem with two words of the statute or law and leverage that to try to take down the entire thing and our points pretty simple if the court sticks to what it says in gunther and says an authorization is affirmative enabling conduct then that's this repeal because it channels to particular state license providers but it's not could be most things in new jersey does and read that where's the law the third circuit said de minimus private gambling isn't covered on page thirty of your brief you indicated maybe the state could have a certain dollar threshold and that wouldn't be authorising i am really not clear why that wouldn't be authorising if you specify a threshold dollar amount and state law you know what it would if they said you can do it at the elks club is that authorizing  where does the government draw the line i think the only thing the court needs to say here just is course which is in the context of past if you or whatever however the states get gets their legislating up legislating down amendment repeal an act it doesn't matter if what it's doing is channeling sports gambling to particular preferred state preferred providers that's an awfully no record about that it's just a sort of points out in the respondent took the position that authorizing means any repeal of any degree of any kind why shouldn't respond have to live with that invited air perhaps now in this case just course i don't think it's a record question i think it's look in the two thousand and twelve law they affirmatively said we're going to let only the casinos and racetracks do it that was a problem they didn't dispute that it violated passed but then they came back and said well will repeal or prohibition but just for the same casinos and racetracks times only point is earlier versions actually explicitly licensed explicitly license instead of a complete operation requirements and other things that i don't think they would have had a snowball's chance to say that that wasn't licensing or effectively operating but here what they're saying is there were no laws there's a law prohibiting all gambling we're now going to repeal part of it and say some gambling is ok unless what the court wants to say is no repeal could be an authorization even if new jersey took away its prohibition only at the borgata which would provide a road map i think for flouting this pharmacy clause because then you could just enact the prohibition and peel it back wherever you wanted unless the courts are prepared to say that a repeal can never be an authorization i think would elevate form over substance this particular appeal is and and i think all the court needs to say is for passport purposes if you're channeling to particular entities here twelve state license casinos and racetracks that's an authorization and read in as across the board no exceptions if new jersey just repealed its prohibitions we've said we don't have a problem with that was that serious you have no problem if there's no prohibition at all and anybody can engage in any kind of gambling they want twelve year old can come into the casino  you're not serious about i fear is serious about it mr chief justice the problem that congress was confronting was state sponsored and sanctioned sports gambling schemes it didn't care if i bet with my buddy on the redskins game or we had an office pool it wasn't going after all sports gambling but when you put the state in the position that that's the only thing they can do that's not a real choice oh it's not the only thing they can do they can strengthen or they can repeal whole or they can repeal in part in various ways the one thing they can't do is affirmatively engage in the one kind of conduct the that no i think we did not take into account the gamesmanship in which new jersey was going to engage we said the same thing we're saying here today that they've got a lot of options on the table the one thing they can't do is the one thing the congress preempted and so we said they can engage in lots of partial repeals but we didn't have in mind the new jersey would come back and do the two thousand and twelve law but style it as a partial repeal and yes i wish we had dropped a footnote and said if new jersey tries to accomplish the same thing but just styles it is something different that will equally be an authorization for past purposes and just to return to your question mr chief justice i will completely grant that congress assumed that states were not going to start authorizing this if they couldn't profit from it and that assumption was true for a long time and if states start listing their prohibitions in whole i think congress may well want to revisit that but passed but doesn't have anything to say about it and what the what new jersey is doing is giving an unnatural interpretation of federal statute to create a small problem with two words and then try to leverage that small sickness to take down the entire patient and that's just not the way statutory interpretation and severability normally work but they have to do that because it's the only way that can get them where they want to go which is to take down the private party prohibition and thirty seven zero two two which they've never argued is even even potentially it is like an authorization not repeal because it's limited to the casinos which probably have all kinds of other rules and regulations nine am opening and da da da da da and under those circumstances it amounts to an authorization not a simple repeal is that the or exactly if you're trying to figure out what constitutes an authorization to operate a sports gaming scheme any law that says everybody can't do it except for you two or three that's an authorization and it doesn't matter whether the state gets there by legislating up or down right and then there is then we're going to say that i think the argument is but you see there is no federal policy which says  states can't you know there is no federal policy against authorizing sports gambling but for a federal policy that says a state can't authorize sports gambling and that is to commandeer if i got that right i think that is their argument but i think it doesn't make sense for the simple reason mr clemente gave baker would not have been different if in addition to having the prohibition on states and individuals it said states or preempted if they try to authorize private conduct that separately barred by the act if this court finds that to be a legal commandeering violation the government would respectfully submit it's going to spend an awfully long time figuring out how to on blur the clear line between preemption and commandeering thank you counsel  to have a question following up on what the chief of the responded says that new jersey legislature is doing exactly what he thinks they shouldn't do or wouldn't do which is that they are considering legislation that would fully repeal the sports betting profile bishan i understand it's being considered by both houses where does that consideration stand right now well i don't know word stands and i think it's utterly irrelevant the well put used to argue that no state legislature would do that but here we have to have two bills introduced that would do just that well they have not that they're not laws yet and what i said was congress could not possibly have intended in a bill to prohibit this expansion of sports betting to have it construed in a way that would were all limited they let me ask you would so crazy about congress perceiving that states would never want twelve year olds to go into gambling houses and that the states with find some way of prohibiting that or living with rules of some sort of creating laws regulations that it permitted nevada to add which is careful regulation of something that's taking place what we have now is activity that is billions of dollars that is taking place throughout the united states it is all on lawful what new jersey decided to do and it's your selective your selective prosecution theory that they're permitting fantasy no no no i'm not talking about fantasy at all i'm talking about betting on pro are permitted to continue nevada nevada has sports betting and it has it regulated it prohibits criminals from going into the business and as open books and so forth those other three states were small slivers of lotteries what i'm saying is all of the evidence supports this but betting on sports is taking place all over the united states five percent of it is legal in nevada the rest of it is illegal  jersey decided we are going to so why don't we why don't we legalize this is a hypothetical marijuana because all of and all drugs because there's a rampant market out there for those drugs but we've made a policy choice that we don't want the state involved in promoting that type of and price good from why is this the congress of the united states in the act of laws with respect to marijuana and with respect to other substances and that's that's in play right now because various states of done various different things but we have no question here that what congress intended to do was pass a law would look at the statute as i said before this the statute says it's an act to prohibit sports gambling under state law not under federal law as a preemption process starts with the idea that there must be a federal constitutional provision in a statute or in the treaty or in the constitution and then the federal government may take steps to prevent states from interfering with the accomplishment of that my opponent mr clement talked about the the the south carolina versus baker case south carolina versus baker specifically said the exact same thing that new york vs the united states says and the prince case says section three ten regulated states activities as does not seek to control or influence the manner in which states regulate private parties and the same thing is true in the in the reno pace my opponent talked about statutes of general application in the last sentence of that case discourse specifically reserved the question whether congress could single out states with respect to activities and didn't decide whether it could do so in outside the context of a statute or general application when this when this suit was first filed by the leagues their complaint is a broad ban on sports betting subject only to the narrow exceptions that apply here have an extra couple minutes bank thank you mr chief justice this is as the federal government said on page fifteen of the federal government's brief we are saying that state laws that attempt to change what new jersey has done are not all of fide bypassed by anyone familiar as this court is with the history of the constitutional convention knows that there is specifically on the agenda an opportunity for congress to nullify state laws that was defeated the whole debate with respect to federalism had to do with whether congress was going to be permitted to regulate interstate commerce regulate states or would it be required to regulate commerce first and as an adjunct to that constrain what states could do and that's exactly what this statute did the federal government the congress wanted a prohibition under state law because it would have no responsibility no accountability and our opponents brief says if you're complaining about accountability call your senator that's exactly what the united states talked about what the court this court talked about in new york versus the united states the accountability is very important the structure is important to the liberty of citizens and this statute