May 16, 2018
You have doubtless read that, on Monday, the U.S. Supreme Court invalidated a federal law that prohibited every state but Nevada from offering gambling on sporting events. This will doubtless have a widespread effect; you can be certain that many (most?) states will be jumping at the opportunity to home in on a market that is estimated to be valued in the area of $100 billion a year.
From a purely legal standpoint, it appears that the Court’s decision further expands its recent jurisprudence which has slowly been chipping away at the doctrine of federalism.
The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. In its ruling in Murphy v. NCAA, the court ruled that the law barring states from legalizing sports betting violates the anti-commandeering doctrine.
Traditionally, 10th Amendment advocates have primarily been found on the political right. But with both houses of Congress and the White House currently in Republican hands, it is now the liberals’ turn to look to state’s rights as a way to advance their agenda. And if the court says that Congress can’t “commandeer” states to enforce federal laws governing gambling in the various states, what’s to prevent the Court from a similar view with respect to federal laws that prohibit states from legalizing marijuana or creating sanctuary cities?