in Legal Issues
New Jersey for years has attacked the federal government and five sports organizations who are suing the state to – so far successfully – prevent the state’s racetracks and Atlantic City casinos from offering Las Vegas-style sports betting.
A potentially vulnerable area of attack is whether the Professional and Amateur Sports Protection Act of 1992 (aka PASPA) passed by Congress illegally “commandeers” 46 states into making sports betting illegal. There are significant Constitutional limitations on federal powers.
So it was that on June 26, 2013, at a hearing in Philadelphia at the U.S. Third Circuit Court of Appeals, that this issue was raised. Legendary attorney Ted Olson, representing the state, hammered away at this point in oral argument.
Then this happened, as U.S. Attorney Paul Fishman was being grilled by a three-judge panel:
MR. FISHMAN: Mr. Olson said they can't change the law, they have to enforce the law on the books, they have to keep [sports betting] illegal. None of that is true. ... It is up to the State of New Jersey to determine for itself the extent to which it will or will not enforce that law. ...
THE COURT: So New Jersey could repeal its ban on wagering on sporting events?
MR. FISHMAN: As a matter of law it could. It would be incredibly irresponsible.
THE COURT: It would not violate PASPA?
MR. FISHMAN: No. But the reason it hasn't been done for 20 years or a hundred years is not because of PASPA. It hasn't been done because it's a really, really, really bad idea. It's irresponsible, it would be bad policy to just allow gambling to go unfettered. ...
This conundrum has evolved into a “nuclear option” being bandied about by some sports betting supporters who realize that taking Fishman up on his offer is exactly what the sports leagues and the federal government do NOT want to happen.
The loophole so far likely has helped in a pair of 2-1 Third Circuit decisions that has kept New Jersey from offering sports betting. But it serves as one of the odder moments in the tenure of Fishman, a Democratic appointee who has been asked to resign by President Donald Trump amid a general turnover with a new administration in place.