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That Sports Betting Ruling Just Gave Cannabis Legalization a Boost

May 14, 2018
Roll of dollars on a blackboard with football strategy planning.Similar photographs from my portfolio:

‘The Haymaker’ is Leafly Deputy Editor Bruce Barcott’s column on cannabis politics and culture.

So there’s this underground industry, see. Americans spend an estimated $150 billion on it every year. All but 3% of that commerce currently flows through illegal channels.

Some people consider the activity a vice. They say it’s addictive, it destroys families and ruins lives. But many other people say, Hey, this is something most adults can enjoy and handle in moderation. We’re not children. Why would you arrest us for enjoying this small bit of pleasure?

The US Supreme Court just ruled that states can legalize and regulate an activity prohibited by the federal government.

Some states want to bring it into the open—to legalize it, but limit it through well-controlled regulation. The federal government balks at this idea. Special interests have hired high-priced lawyers to fight it out in court.

I’m writing, of course, about sports betting.

For years, the state of New Jersey has been fighting the federal government and the major professional sports leagues for the right to legalize and regulate sports betting within the state’s hourglass-shaped borders.

In a landmark ruling published this morning, the U.S. Supreme Court agreed with New Jersey. The federal Professional and Amateur Sports Protection Act, passed by Congress in 1992, banned wagering on professional and college sports. The Act also explicitly prohibited states from sponsoring or authorizing such gaming.

That language had always held New Jersey back. New Jersey officials first tried to legalize sports betting at casinos and race tracks in 2012. The NCAA, NFL, NBA, NHL and MLB promptly sued. The case has been tied up in the courts ever since. Lower courts generally held that proactively regulating sports betting clearly “authorized” the federally banned activity.

The U.S. Supreme Court saw it differently.

The 10th Amendment Is Strong

Citing the Constitution’s 10th Amendment, the court’s 7-2 majority affirmed that states are not required to enforce federal law. If the feds prohibit an activity, federal officers can enforce that ban. The states may choose to enforce that ban, too—but state officials are not required to enforce it.

Here’s perhaps the most optimistic sign in the Murphy v. NCAA decision: This was a bipartisan ruling led by the court’s most conservative justices.

The long-running case has a ponderously long name but will forever be known as Murphy v. NCAA. Phil Murphy inherited the title when he was sworn in as governor of New Jersey in January, and the NCAA just happens to be first in line among all the sports leagues battling to keep wagering illegal.

The implications for cannabis in Murphy v. NCAA are obvious and enormous. The idea that states are not required to carry out federal laws has always been a strong card in the hand of legalization proponents. But they’ve never had to actually play it, not like New Jersey just did—all the way to the Supreme Court, the final table.


Here’s Where US Attorneys Stand on Cannabis Enforcement

Learn About ‘Anti-commandeering’

My Leafly colleague Ben Adlin covered this ground a couple months ago. Ben’s piece (When State and Federal Laws Conflict, Who Wins?) quoted Karl Manheim, a constitutional law professor at Loyola Law School in Los Angeles:

“As is often the case in constitutional law, we have an equal and opposite constitutional command in the 10th Amendment, which says that states have a certain degree of autonomy and that Congress cannot commandeer state processes,” Manheim said. The anti-commandeering doctrine, as it’s known, limits the supremacy clause by prohibiting the federal government from forcing states to do its bidding.

If Congress were to pass a law expressly barring states from taxing the sale of silly hats, a state law establishing a tax on silly hats would clearly violate the supremacy clause. On the other end of the spectrum, if Congress were to ban silly hats outright, states could freely pass laws preventing local police departments from enforcing that federal law. “As a general principle,” Manheim said, “states don’t have any constitutional obligation to cooperate with any federal agency.”


When State and Federal Laws Conflict, Who Wins?

Today’s ruling actually updates Manheim’s theoretical example. The Supreme Court held that Congress may not issue “a direct order to the state legislature.” By doing so in the case of sports gambling, the Court majority held, the federal law that prohibits state licensing of sports gambling schemes “violates the anticommandeering rule.” In his majority opinion, Justice Samuel Alito wrote:

“As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the list of conferred powers is the power to issue direct orders to the governments of the States. …Adherence to the anti-commandeering principle is important for several reasons, including, as significant here, that the rule serves as ‘one of the Constitution’s structural safeguards of liberty’…”

Conservative Justices On Board

The court also held that the ban on sports gambling advertising, which is included in the 1992 federal act, is not constitutional. If the ad ban were allowed to stand, Justice Alito wrote, “federal law would forbid the advertising of an activity that is legal under both federal and state law—something that Congress has rarely done.” Alito’s majority opinion remained silent on the question of whether states may regulate or prohibit advertising of sports betting. That’s directly relevant to the cannabis industry, as most legalized states do regulate cannabis advertising to varying degrees.

Here’s perhaps the most optimistic sign in the Murphy v. NCAA decision: This was a bipartisan ruling led by the court’s most conservative justices. The majority coalition consisted of justices Alito, Roberts, Thomas, and Gorsuch (conservative); Kennedy (moderate); and Breyer and Kagan (liberal). In a court where most decisions are slim 5-4 outcomes, a 7-2 vote is a strong signal of agreement.


FAQ: What We Know About Jeff Sessions’ DOJ Action Against Legal Cannabis

What Next? Betting at the Jets Game?

This morning’s ruling sent sports radio hosts into a frenzy of speculation. “Are they gonna have a betting window at Giants and Jets games?” asked one of the guys on the Dan Patrick Show. Both “New York” teams, of course, play their home games at the Meadowlands in New Jersey. “When you go to a restaurant, will they give you a ticket you can mark up? Can I bet my food on the Raptors game?”

I remember the same kind of banter on Denver radio when cannabis stores opened in early 2014. Drive-time radio jocks joked about hotboxing the studio. People wondered when they could buy a joint and a latte at Starbucks.

Now that New Jersey has a green light to proceed with sports betting, the state would do well to take a bit of wisdom from the cannabis space: Start low, go slow. Legal cannabis rolled out under extremely strict regulations in Colorado and Washington. We learned from those states, and now regs in California, Massachusetts, and other second-wave states are more reasonable and sensible.

We give to you, you give to us. Sports betting can learn from the past experience of cannabis regulation—and the legal minds crafting the next wave of state legalization measures will surely learn from Murphy v. NCAA.

Bruce Barcott's Bio Image

Bruce Barcott

Leafly Senior Editor Bruce Barcott oversees news, investigations, and feature projects. He is a Guggenheim Fellow and author of Weed the People: The Future of Legal Marijuana in America.

View Bruce Barcott's articles

  • John Daley

    Well, file some lawsuits….

    • VenomB

      Right? First cannabis needs a very wealthy group to stand up and start long court battles to at the very least have marijuana be considered a damn flower, not a drug.

  • Legalize420

    The 10th ammendment is strong with this court. Impact on legalization of cannabis this may have. Betting in NJ there shall be.
    Stay out of individual states business the
    feds shall. Good news this is!😉😜✊👍

  • Jamfer Jones

    It looks somewhat clear to me and the Supreme Court too. This is the United “STATES” of America. 7-2 justices say hands off the states rights and it should go for all rights including whether to schedule the God Herb the same as Meth etc.

  • Mo Jo

    I’ve been saying this all along. The 10th Amendment is the end of the road for the Federal laws on Cannabis. The ONLY drug the Feds have the legal right to regulate is Alcohol, and it took a Constitutional Amendment to give them this right.

  • E.L. Bl/Du

    I dont see how this can lift the ban on cannabis. Even in states where its “legal” Drs cannot prescrbe narcotic pain meds b.c their license is controlled Federally. ITs either/ OR, but not both. Even tho the studies have shown better pain relief in chronic pain persons with sm doses of both. We can’t transfer it to other states w.o facing ‘federal” charges. Oregon produced over 900x the amt of weed they can consume last year, with another 980 permits in waiting this year. Where is it all going? The prices have plummeted drasticly and ppl are pulling out due to bankruptcy of their grow. Its NOT the gold rush anymore. (here anyway) TOO many ppl moved here to try and its WAY OVER produced. Not sure whats happening in Ca, but Wa has only one company that owns ALL the dispensaries in Seattle now. You cant even recover your cost to grow, due to fees, and now the need to report every leaf that comes off each plant from seed to harvest. (or for rec they want cc TV cameras on it at all times) They have made it such a pain its not even worth it anymore. Cant recover your cost. (Unless your a city/ County offiical that owns the dispensary) The Feds cant figure out how to get their cut, so they want it illegal. They are too CHICKEN to re=schedule it even tho they KNOW there is medicinal properties. Its ALL about the money.

    • Auryan

      Oregon weed has not plummeted in price…MUCH. Just bought some this morning for 7$ gram, which isn’t bad. And found another for $5, But most is still $10 plus/gram depending…apparently…on who is selling it. Keep hearing about the glut, but. Have not looked at all rec stores…just not seeing a major retail drop in price.

      • E.L. Bl/Du

        you must live in Portland Im guessing, the rest of the state is another world. None of my grower friends have sold ANY. (not the norm) IDK WHERE you get your weed, (Im guessing a dispensary w/ those prices) but Im a grower and have been for 20 + yrs, and its really hard to sell in the past 2 yrs. Its steadily been going down and down. All the dispensaries here have “their” growers and stock moves slow, in GRAMS not pounds. I saw $3 grams last week on a sign outside a dispensary. I politely disagree with you, as someone who has been at it for a very long time. Prices have dropped into the gutter.

        • Auryan

          Live in Bend OR…checked only a few the other day…didn’t see any major plummet. Yes in a dispensary. Well, if you are a grower…so you are still selling unlicensed then? If so, then I know growers who can’t see anything too. With everyone trying to sell…for sure, now that the market is out in the open more.

          • E.L. Bl/Du

            no, dispensaries have “their” growers now and it moves SLOW. The market is FLOODED. Period. Bend growers have to grow w. lights so they HAVE to charge more, plus they dont get as much per plant. Not the case here. Not to mention the infulx of idiots (who have never grown ANYTHING) moving here and getting grow cards. State doesnt care, they will dole out as many grower cards a they can, its another $200-$1200 depending on the grow. ITs expensive to grow and you cannot recover your money anymore. PERIOD! Its been that way for 2 yrs now.

    • Paul Sorensen

      This is a major ruling in support of Federalism (state’s rights). Very soon, our elected representatives will catch up with their constituents and actively support legalization. If you believe in it, write to them (as I have done repeatedly). It is your job to exert pressure. If you want the freedom that I enjoy in Oregon, do something positive to push this over the finish line.

      • E.L. Bl/Du

        Paul, I cant agree with you more, I also write to them all the time. could argue as many have with them, it seems to go too slow, unless they are offered money. I think its a crime that welfare gets a break on their medical cards but the disabled DO NOT. They pay the Full $200 fee for their card, SSDI is excluded, but SSI (suplemental security income, not social security only pays $60) But that is only one complaint I have with the way they are running things. Unfortunately Greg Walden (crooked as all get out) will prob get back in office, and he has NO interest in any marijuana policy with the feds. None of the state or local politicians do either, but I keep writing. The way this state is going, it makes it EASY for these big BIG companies to come in and take over. (and they pay pay pay the fees gladly) But if you want to grow your own 6 plants, its SO expensive with all the moratoriums (county) city restrictions, its cheaper to buy it. (from them at their dispensary and thats what they want. They dont want us growing our own anymore, they dont make any money off of that.

  • viper643

    Perfect mirror image of cannabis prohibition. Can’t believe it took months to read this article.