Connecting state and local government leaders
From the Tenth Amendment to the First, civil rights to states rights, a lot is at stake for state and local governments.
The Supreme Court will hear two cases early this week that could have far-reaching effects for state and local government powers. On Monday, the court will hear arguments in Christie v. National Collegiate Athletic Association, which could decide whether Congress violated the Tenth Amendment in barring New Jersey from repealing its ban on sports gambling. The next day, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is on the docket, in which the court will need to decide whether a cake maker’s religious beliefs and “artistic expression” trump Colorado’s laws barring a business from discriminating based on sexual orientation.
Christie v. National Collegiate Athletic Association stems from New Jersey wanting to legalize sports gambling. Professional sports leagues and the NCAA claim this is a violation of the 1992 Professional and Amateur Sports Protection Act, which effectively barred most states from legalizing gambling on sports—more specifically, it forbids state efforts “to sponsor, operate, advertise, promote, license, or authorize by law or compact” sports betting.
While the history of the case is complex, the central question is whether the federal government can stop states from repealing laws they have on the books.
In 2014, New Jersey decided to repeal its laws prohibiting sports gambling. The move legalized sports betting at authorized casinos and racetracks in the Garden State. The 3rd U.S. Circuit Court of Appeals said New Jersey was essentially being cute with its repeal, and violated the 1992 law by effectively authorizing sports gambling through repeal.
However, New Jersey argued that forcing a state government to keep laws on the books was unconstitutional, violating the 10th amendment; while not one of the most well-known of the Bill of Rights, we are guessing most Route Fifty readers know it provides that “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 previous rulings—the latest being Printz v. United States in 1992—the Supreme Court created an “anti-commandeering doctrine,” which halts the federal government from forcing states to adopt or apply laws or regulations. Christie essentially asks the court to extend that ruling to say the federal government also cannot force states to keep laws static.
The National Governors Association, National Conference of State Legislatures, Council of State Governments, National League of Cities and International Municipal Lawyers Association filed a joint amicus brief supporting the governor of New Jersey. They state: “The decision … permits Congress, in effect, to freeze state and local laws and regulations in place, in areas of law in which Congress has not preempted the field by enacting its own rules. By doing so, Congress creates the false and misleading impression that state and local officials are responsible and should be held accountable for policy choices over which those officials have no real control.”
In the brief, the associations list a litany of areas that Congress has failed to weigh in where they could force states to maintain laws beyond sports gambling, ranging from self-driving cars to assisted suicide. “Absent comprehensive federal regulation preempting the field, state and local governments similarly must be given flexibility to deal with technological advancements presenting unforeseen challenges and legal issues,” the brief states.
“There aren’t a lot of cases that deal with anti-commandeering and this case has the potential to really develop the framework of that idea,” Ashley Johnson, of counsel at Gibson Dunn, who represented New Jersey state officials before the 3rd Circuit in this case, explained in a webinar for the National Association of Counties in October. “As far as state and local governments go, it is a fundamental federalism issue because it relates to the extent to which Congress must pass laws directly if it seeks to regulate individuals, or whether it may have the states do so for it by prohibiting states from repealing its existing state laws.”
For its wide-ranging implications for states’ rights (as well as, more narrowly, the future of sports gambling), Christie is one to watch.
On Tuesday, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission will take center stage. When a same-sex couple was denied a cake by Masterpiece Cakeshop, they took the case to the Colorado Civil Rights Division. Since 2008, Colorado has prohibited discrimination in “public accommodations” against same-sex couples. Public accommodations are, essentially, any facilities that are used by the public—whether it’s a public library, a department store, or a small cake shop business. The baker behind Masterpiece, Jack Phillips, claims his religious and first amendment artistic expression rights are being violated by being forced to make a custom wedding cake for a same-sex couple’s wedding.
The Colorado Court of Appeals disagreed with Mr. Phillips’ free speech and religious liberty arguments, siding with the existing law and the couple. The case is considered a major civil rights case in the ongoing public debate about discrimination based on sexual orientation; as such, it has garnered a great deal of interest.
Obviously this case has implications for the public at-large, but it could also have a significant impact on state and local governments. Twenty-one states, as well as over 100 localities across the country, have “adopted ordinances protecting citizens from sexual-orientation discrimination in public accommodations,” according to an amicus brief filed by the National League of Cities, International City/County Managers Association and International Municipal Lawyers Association.
The brief focuses its arguments in support of the state of Colorado based on other civil rights issues where states and localities prohibited discriminatory practices well ahead of federal action, particularly when it came to racial discrimination. “Many courts upheld these democratic efforts of the state and local governments against a rich variety of complaints, including alleged burdens on economic and religious interests,” the brief states. It says making exceptions such as the one requested by Masterpiece’s Phillips will “weaken the protections of these laws nationwide.”
The federal government has sided with Phillips, filing its own amicus brief. The United States claim that it is a significant intrusion on Phillips’ first amendment rights “where a public accommodations law compels someone to create expression for a particular person or entity and to participate, literally or figuratively, in a ceremony or other expressive event.”
On Wednesday, we may have some idea which way the court’s justices may be leaning on both these cases.
Mitch Herckis is Senior Director of Programs at Government Executive’s Route Fifty and is based in Washington, D.C.