SAN DIEGO, Ca., May 15, 2018 – Contrary to popular belief, the United States Supreme Court did not legalize sports betting in Murphy v. National Collegiate Athletic Association. It merely ruled that the decision of whether to authorize sports betting resides with the states.
However, it changed the betting line on a variety of issues including the decriminalization of cannabis as well as the validity of sanctuary states and cities.
At its core, the majority in Murphy v. National Collegiate Athletic Association simply resurrected the Tenth Amendment, which the federal government too often forgets:
“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 this case, SCOTUS held that the 1992 federal Professional and Amateur Sports Protection Act (PASPA), which among other things bans states from authorizing sports gambling, is unconstitutional under the Tenth Amendment.
The court also found the anti-commandeering doctrine to be applicable. This precludes the federal government from “commandeering” states to enforce federal law.
The countervailing arguments of federal preemption and the Commerce Clause, which are often used to extend federal reach beyond the original intent of the Constitution, did not represent a winning hand on this occasion.
Justice Alito wrote the opinion in which he was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Gorsuch, and Kagan.
Justice Breyer concurred in part and dissented in part (with respect to limiting the decision to the ban on sports betting rather than rendering PASPA unconstitutional in its entirety).
Justice Ginsburg wrote a dissenting opinion in which she was joined by Justice Sotomayor.
So, what does this have to do with the decriminalization of cannabis and a potential decision with regard to sanctuary cities and states?
States have begun to legalize cannabis for recreational as well as medical uses in contravention of federal law. This has created an enormous problem for federal banks and FDIC-insured state banks that cannot risk falling afoul of federal law regardless of what an individual state’s law might permit.
As a result, these banks generally will not permit cannabis industry businesses that are legally licensed under state law to even open banking accounts much less write checks or use credit cards to transact business.
There is also a significant risk of liability at the state level if the cannabis ever crosses a state line or is sold to minors.
While a change in the federal scheduling of cannabis would help (reclassifying it as a Schedule II narcotic rather than a Schedule I), there would still be a conflict between federal law and that of a state that chooses to legalize possession and sale.
Would Murphy v. National Collegiate Athletic Association become precedent should a state choose to challenge federal law under the Tenth Amendment and the anti-commandeering doctrine?
Similarly, would cities and states that choose to enact “sanctuary” laws be better positioned to argue their point because of SCOTUS’ ruling in Murphy v. National Collegiate Athletic Association?
The latter might be more difficult since Article I, Section 8 reserves the right to Congress “to establish an (sic) uniform Rule of Naturalization.” If this is deemed to have delegated power to the federal government, the Tenth Amendment would not apply, nor would the anti-commandeering doctrine carry any weight.
However, it is interesting to note which justices made which arguments in the case immediately before the court. If a cannabis or sanctuary state or city case were to make it before the court, would the justices be compelled to follow their own logic? Or, would they apply the age-old practice of distinguishing the fact patterns to provide a modicum of flexibility?
Justice Kagan represents the most surprising member of the majority in the current case. She favored a relatively strict interpretation of the Constitution. Was she doing it in anticipation of a cannabis or sanctuary case?
It is difficult to know. Cannabis is legal in Washington, D.C. for adults 21 and older, so perhaps she was just high.
While Justices Ginsburg’s and Sotomayor’s positions were more in alignment with their political bias, will they attempt to reverse course and argue in favor of states’ rights on the more left-leaning issues?
Conversely, how will the more conservative justices apply the Tenth Amendment when it comes to a state’s right to legislate cannabis?
While they may be able to distinguish the sanctuary state and city fact patterns for legal purposes, it will be more difficult to differentiate between two recreational activities such as gambling and smoking marijuana (putting medical use aside).
In the meantime, place your bets on how you think SCOTUS will decide those issues while the odds are still high.
T.J. O’Hara is an internationally recognized author, speaker, and strategic consultant in the private and public sectors. In 2012, he emerged as the leading independent candidate for the Office of President of the United States and the first nominee of the Whig Party in over 150 years. He also has served as the Principal Political Analyst and host of Deconstructed for the Independent Voter News (IVN).
This article first appeared in T.J. O’Hara’s recurring column, Deconstructed, in the Independent Voter News (IVN).