22 May 2018


What does the Trump administration's immigration policies have to do with sports betting?  No, I am not talking about Dominican baseball players, I am talking about the Department of Justice's war on so-called "sanctuary cities", i.e., those states, cities, and towns that refuse to cooperate with federal authorities seeking the arrest and deportation of undocumented aliens within their borders.

The President urges that a local government's refusal to turn over to federal agents the names and locations of undocumented persons, either in or out of jail, is "obstruction of justice." And so the federal government has sued the State of California to strike down its "sanctuary law," and require state officials to cooperate with immigration authorities.

There are more than 200 red and blue sanctuary cities and towns -- more than a dozen in New Jersey and New York -- (and there seven entire sanctuary states) but the Department of Justice has sued only California. Attorney General Sessions did not say whether the decision to single out California had anything to do with the fact that the state permitted more than three million illegal aliens to vote in the 2016 election, all of whom voted for Hillary Clinton.  But for that, the President would have won the popular vote as well as the electoral college vote. That must be true; the President of the United States said so.

The most important element of the California statute being challenged in the federal lawsuit is the section that bars all state law enforcement personnel from cooperating with federal immigration police, except with respect to those aliens who have committed serious crimes.

That, argues the feds, is a violation of the Supremacy Clause of the Constitution, which basically says that if there is a conflict between a state law and a federal law, the latter triumphs. The California statute, says the DOJ, interferes with the federal immigration enforcement program, which has pre-empted the field.

But while that litigation is pending in the District Court in California, a conservative majority of the Supreme Court has just published a decision in another case that will, I suggest, dramatically affect the outcome of the California case. 

In Murphy v. NCAA, the Court upheld a New Jersey challenge to a federal anti-sports-betting statute. The rationale of that opinion seriously hobbles the DOJ's lawsuit against California.

By a vote of 7-2, the Court struck down the federal statute that barred all but a few grandfathered states from authorizing sports betting. The Court rejected the government's supremacy and pre-emption arguments, and held the federal statute was unconstitutional because Congress has no power tell the states what to do!  In an opinion written by Mr. Justice Alito, and joined by all the conservative members of the Court, plus two from the liberal wing, the Court held that the Constitution "confers upon Congress the right and the power to regulate individuals, not states" and Congress "may not command the states' officers ... to enforce a federal regulatory program. ...  Congress ...  may not conscript state governments as its agents."

Basically, the majority said the Tenth Amendment sends a clear "anti-commandeering " message to the national government: "The legislative powers of Congress are not unlimited ... .  All other legislative power is reserved to the states, as the Tenth Amendment confirms. Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the states."

In effect, the Court is telling Congress and the Executive branch, "If you guys want to pass a law, then you alone own it. You must pay for it and enforce it yourselves. You have no right to pass on the costs and responsibility to the states.  You cannot command the states to wash your dirty dishes. The Constitutional notion of dual sovereignty prevents that."

Bottom line, the feds cannot command New Jersey to ban sports betting, and I suggest that means the feds cannot command California or its officers to cooperate with ICE.

New Jersey wins the Daily Double. You can bet on it.

A bientot.