AT THE dawn of the republic, the Federalist Party advocated a strong national government with an energetic executive, while anti-Federalists worried that too much power at the centre would make for a monarchy, not a democracy. They wanted power to go to the peripheries. But “federalism” has since become synonymous with states’ rights. Devolving power from Washington, DC to states and localities has been a priority of the modern Republican Party. The current era is changing that. Donald Trump’s administration is clamping down on states that are loosening marijuana laws or failing to cooperate with federal authorities to deport undocumented immigrants.
A Supreme Court decision on May 13th strikes a major blow for states’ rights. By a 7-2 vote in Murphy v National Collegiate Athletic Association (NCAA), the justices ruled that a 1992 statute banning sports betting is unconstitutional. The law, the Professional and Amateur Sports Protection Act (PASPA), was a bit of an odd duck. It wasn’t a ban on betting, per se, but a law prohibiting states that already banned betting from legalising it. So states where sport betting was legal in 1992—Delaware, Montana, Nevada and Oregon—were at least partially exempted from the ban. New Jersey thumbed its nose at the law when it legalised sport gambling in 2012, a move that was promptly halted by lower courts. In its appeal to the Supreme Court, New Jersey said PASPA violated the rarely litigated 10th Amendment, the constitution’s textual hook for preserving state’s rights: “the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”.
In a sweeping decision written by Justice Samuel Alito and joined by the court’s other conservative justices and Justice Elena Kagan, the Supreme Court agreed. PASPA “unequivocally dictates what a state legislature may do and not do,” Justice Alito wrote, unconstitutionally subjecting state legislatures to “the direct control of Congress” in violation of the “anti-commandeering” principle inherent in the 10th amendment. If Congress wishes, it may “regulate sports gambling directly”, the decision read, “but if it elects not to do so, each state is free to act on its own”.
The effect may be felt soon. After the oral argument in December, Chris Christie, then governor of New Jersey promised that in the event of a win, “we can have bets being taken in New Jersey within two weeks of a decision by the court. We’re like boy scouts; we’re prepared.” In addition to the Garden State, Connecticut, Delaware, Iowa, Mississippi, New York, Pennsylvania and West Virginia have said they will act quickly to repeal their betting bans. In another 12 states, a move toward allowing wagering may be in the works as well.
The win for bettors is a loss for the NCAA, which worries that gambling on professional and college sporting events “risk[s] the reputation of one of our nation’s most popular pastimes” and “threatens to change the nature of sporting events from wholesome entertainment for all ages to devices for gambling”. Murphy is a loss for the Trump administration, too. In a brief to the justices, the Department of Justice argued that while the 10th Amendment prevents the federal government from making states “enforce specific federally prescribed regulations”, it does not stop the feds from “prohibit[ing] states from adopting laws that conflict with federal policy”. It’s fine for Congress to “plac[e] some policies out of bounds”.
The Trump administration would like to remove two such policies from the purview of state legislatures: the spreading legalisation of marijuana and “sanctuary city” laws that partially shield undocumented immigrants from the reach of Immigration and Customs Enforcement (ICE). Nine states and the District of Columbia now permit the recreational use of marijuana, and 13 more have decriminalised it. Over half the states allow the medical use of marijuana. But in January, Jeff Sessions, the attorney-general, reversed Barack Obama’s policy of quietly permitting states to ease access to the drug and issued a new guidance promising stepped-up enforcement of federal drug laws. Mr Sessions also filed a lawsuit in March complaining that California had “pre-empted” federal immigration law with its sanctuary policies and “impermissibly discriminate[d] against the United States’”. With the Supreme Court’s Murphy decision, these and other attempts to wrest sovereignty from the states will face a tougher climb.