Exclusive – Kobach: A Huge Victory for States’ Rights and the Tenth Amendment

The Associated Press
The Associated Press

There has been a great deal of media coverage of the Supreme Court’s decision on Monday striking down a 1992 federal law that prohibited sports betting in most states. The decision, Murphy v. NCAA, struck down the Professional and Amateur Sports Protection Act (PAPSA) which generally prohibited states from authorizing sports gambling.

The media coverage has focused principally on the significant effect that the decision will have on gambling on sports across the country. While the impact of the decision on sports betting is important, there is a consequence of the decision that is far more important to our country – it significantly enhances the States’ rights as co-equal sovereigns with the federal government.

Stated differently, the Court’s decision restores and sharpens the teeth in the Tenth Amendment that have been missing for a long time.

Justice Alito authored the opinion of the Court, which was joined by all four conservative Justices, plus the swing Justice Kennedy, and (somewhat surprisingly) the liberal Justices Kagan and Breyer. In his well-written opinion, Alito explained why the PAPSA violated the Tenth Amendment.

The Tenth Amendment states: “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.” It was intended to preserve the sovereignty of the States in all areas other than the limited areas of authority handed over to the federal government.

Unfortunately, as Congress expanded its powers well beyond their original scope described in the Constitution, after 1937 the Supreme Court did little to protect the authority of the States. In 1941, the Supreme Court said in United States v. Darby that the Tenth Amendment was merely “a truism that all is retained which has not been surrendered.” Although the Supreme Court of the 1970s and 1980s attempted to resuscitate the Tenth Amendment as a bulwark against federal encroachment in areas of “traditional State authority,” this effort ended with the 1985 decision of Garcia v. San Antonio Metro Transit Authority.

For a while, it seemed as if the Tenth Amendment had been reduced to a dead letter. But then in 1992, the Supreme Court restored one of the core meanings of the Tenth Amendment. In the case of New York v. United States, the Court recognized that the federal government could not compel the States to enact laws desired by Congress. Justice O’Connor (who was always of a defender of States’ rights) wrote that Congress may not “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” In 1997, this “anticommandeering” principle was reaffirmed and extended to prohibit Congress from commandeering the administrative powers of State officers in Printz v. United States.

With this week’s decision, the Court has once again expanded the anticommandeering doctrine of the Tenth Amendment. Not only is Congress forbidden from compelling the States to pass laws, it is also cannot prohibit States from enacting laws.

As Justice Alito explained, “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.” Applying the doctrine to the sports betting provisions of the PAPSA, Alito reasoned: “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”

The fact that two of the four liberal Justices joined the opinion is a very positive sign. It indicates that this aspect of state sovereignty protected by the Constitution is well-established precedent now. It is not something that is likely to disappear if the balance on the Court swings leftward under a future Democratic president.

The decision will doubtless encourage the States to challenge other federal laws that attempt to commandeer their legislative powers. It also fires yet another warning shot across the bow of Congress. That is a good thing.

One of the most persistent and disturbing trends over the course of American history has been the usurpation of State powers by an ever-expanding federal government. This week we witnessed an important step in the other direction. It is an important victory for the States and for the United States Constitution.

Kris W. Kobach is the elected Secretary of State of Kansas. He served as a professor of constitutional law at the University of Missouri – Kansas City Law School from 1996 to 2011. Also an expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the ten ICE agents who sued to stop Obama’s 2012 DACA executive amnesty. He is currently a candidate for governor in Kansas. His website is kriskobach.com.


Please let us know if you're having issues with commenting.