The Tenth Amendment: Out of the shadows and into the spotlight

The Supreme Court, April 2017


This term, Supreme Court watchers attention for “Masterpiece Cakeshop”—the gay wedding cake case–that would be a milestone in First Amendment jurisprudence.

But there is another thing, but receive less attention, that can be just as consequential. In that case, technically, about sports gambling, “Christie’s v. NCAA.” The case will be rebranded to now, Phil Murphy, has succeeded Chris Christie (governor of New Jersey.

On the heart, is the case of a dispute about the Tenth Amendment, a part of the Bill of Rights not known by the average Americans and the First Amendment. That may be because, for most of the country’s legal history, it has not played a major role. But “Christie’s v. NCAA” it could be a sign of the Court’s attitude is changing.

The text of the amendment itself is short and simple: “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 a reminder of the Founders of the new federal government that its powers were limited.

But, as Fox News legal analyst Judge Andrew Napolitano puts it, the Tenth Amendment “fell into a state of drowsiness.” It was asleep for generations as the federal government’s scope and authority grew, while the court allowed the extension.

However, Napolitano notes, “the 10th amendment, but it is very much disfavored by progressives…again has something” in the past few years.

In particular, he cites the 1995 case United States v. Lopez”, in which the Supreme Court declared Congress had no power to put a ban on weapons near schools, because this law is not related to its constitutional powers under the Commerce Clause to regulate interstate commerce—which meant Lopez had his case dismissed.

The Lopez case made clear that Congress could not do what it wanted, but the question, as is how far can it go. The “Christie” case is the test of that line.

It is specifically about sports gambling, but the consequences are much larger. There are a lot of the ins and outs of how it got to the Supreme Court, but, in essence, here is what happened:

In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which made it illegal for most states to authorize betting on sports.

Years later, in the state of New Jersey thought that maybe it was time to legalize sports betting, even though it was too late under PASPA. In 2011, almost two-thirds of the citizens voted for an amendment to the state constitution allowing sports gambling, and in 2012, New Jersey passed a law to legalize it. The legislation was challenged by the National Collegiate Athletic Association and four pro sports leagues—the NBA, NFL, NHL and MLB.

The court found in New Jersey had violated PASPA. So the state went in a different direction, the passing of 2014, a law that revoked the existing ban on sports gambling. Once again they were brought to court, and that is now the case is decided.

The question now is whether the AMERICAN government has gone too far under the Tenth Amendment—Congress is only one step ahead of legislation of a member state, that is his right, or it is commandeering?

Under the Constitution, federal laws are excellent, so the U.S. Congress can legislation replaces the law of a member state. What it cannot do, according to the high board, it would require specific, targeted tasks of the state officials, or to determine how a state governs itself.

In “Christie’s v. NCAA New Jersey is of the opinion that a federal law that prevents the amendment or repeal of a state law commandeers the regulatory authority of the state and thus violates the Tenth Amendment.

According to Judge Napolitano, on the basis of the existing case law, “this is a no-brainer.” If the Judge follows the law, as it is written, they may decide to make one sentence, and New Jersey would lose.”

That has led to speculation the Supreme Court has taken the case, because it is ready to change, or at least expand Tenth Amendment jurisprudence.

As Napolitano notes, “I don’t read tea leaves…[but] I would say that there’s no reason for them to take this case, unless they want to revivify the 10th Amendment a little more and push back on the Congress of the use of the Commerce Clause a little bit more.”

The distinction between what is pre-emption and what is commandeering may seem very technical, but the consequences are huge. If the Supreme court decides in favor of New Jersey, opening a vein of the activism of the states who want to shake off the yoke of federal regulations. At the very least, many states would legalize sports gambling to open up a new stream of revenue. But it could go a lot further than that.

For example, a number of legal experts suggest that it could change how much say federal officials have on many contentious issues on which the feds and the states do not see with your own eyes, like gun laws and marijuana legalization. Indeed, as the Court goes far enough, it can make the entire relationship the states have with the federal government.

As Judge Napolitano says, “It depends on how broadly written opinion,….At a given moment, the Supreme court goes on to say [all this federal regulation is crazy, this is nowhere contemplated under the Commerce Clause. So one of these days, that can happen. I don’t know if this is going to be.”

But if it is, the “Christie” case can be a legal revolution.


Steve Kurtz is a producer for the Fox News Channel, and author of “Steve’s America (the perfect gift for people with the name Steve)”.

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