Betting on State Equality: How the Expanded Equal Sovereignty Doctrine Applies to the Commerce Clause and Signals the Demise of the Professional and Amateur Sports Protection Act

INTRODUCTIONOn February 2, 2014, 111.5 million Americans watched the Seattle Seahawks overcome the Denver Broncos in Super Bowl XLVIII.1 Although the game took place in East Rutherford, New Jersey, an estimated 300,000 Americans instead traveled to Nevada for Super Bowl weekend to wager a record $119 million, yielding a $19.7 million recorded profit for Las Vegas sports books.2 In addition, these visitors were projected to spend an estimated $106.2 million in nongaming activities and accommodations.3 In contrast, New Jersey's casinos did not benefit from these record numbers because the 1992 Professional and Amateur Sports Protection Act ("PASPA") prohibits casino-operated sports books outside of Nevada.4Although many states already prohibited sports gambling at the time, Congress passed PASPAbecause it perceived sports gambling as a national problem that could only be remedied through federal action.5 Congress concluded that state regulation was insufficient because the moral harm produced by sports gambling could not be limited geographically.6 PASPA, however, contains a grandfather clause that carves out an exception for states that allowed or operated a sports betting scheme between 1976 and 1990.7 In effect, this grandfather clause grants Nevada a virtual monopoly over casino sports gambling.8Although PASPAhas prevented the spread of state-sanctioned sports gambling, theAct has failed to stop its overall growth.9 For example, one 1999 study estimated that gamblers illegally wager approximately $380 billion annually on sports, making sports betting the most widespread and popular form of gambling in the United States.10 In addition, newspapers and websites across the country publish point spreads.11 Furthermore, sports gambling websites allowAmericans nationwide the opportunity to gamble on sports.12 Finally, participation in fantasy football leagues and college basketball brackets is common,13 with partici- pants including the U.S. President14 and a former U.S. Supreme Court Chief Justice.15In 2012, the New Jersey legislature enacted the Sports Wagering Law- which permits sports pools at New Jersey gaming casinos-in hopes of attracting a percentage of this sports gambling income to the Garden State.16 After enactment, the National Collegiate AthleticAssociation (NCAA) and the four majorAmerican professional sports organizations challenged the law, arguing that it was in direct conflict with PASPA.17 In response, New Jersey contended that PASPAwas unconstitutional because it violated the equal sovereignty doctrine.18 Under this doctrine, federal legislation cannot discriminate among states unless Congress can show the burden is sufficiently related to the problem the legislation targets.19In 2013, in NCAA v. Governor of New Jersey, however, the United States Court of Appeals for the Third Circuit upheld PASPA's constitutionality and preempted New Jersey's Sports Wagering Law.20 The Third Circuit held that the equal sovereignty doctrine did not apply to economic regulations, even when they discriminate among states.21 In so holding, the court noted that the Commerce Clause did not require geographic uniformity.22 Accordingly, PASPA, an economic regulation passed under the Commerce Clause, did not violate the equal sovereignty doctrine.23This Note argues that the Supreme Court should apply the equal sovereignty doctrine to economic regulations that discriminate among states and were enacted under the Commerce Clause.24 Accordingly, this Note contends that the proper way to analyze discriminatory economic regulations is to determine whether the discriminate treatment of states is sufficiently related to the legislation's targeted issues.25 In order for a statute's unequal treatment of states to be upheld, Congress must establish that the issues addressed are limited geographically to the targeted states and does not appear in the exempted states.26 Despite the Third Circuit's holding to the contrary, applying the equal sovereignty doctrine to economic regulations is proper because it is faithful to the Supreme Court's recent equal sovereignty jurisprudence, reinforces the Commerce Clause's principle of uniformity, and reaffirms equality among the states. …