Abstract arguement invoking the tenth amendment to legalization of gambling

Boston College Law Review Volume 55 | Issue 3 Article 8 5-20-2014 Betting on State Equality: How the Expanded Equal Sovereignty Doctrine Applies to the Commerce Clause and Signals the Demise of the Professional and Amateur Sports Protection Act Michael Welsh Boston College Law School, michael.welsh@bc.edu

CONCLUSION In 2013, in Shelby County v. Holder, the U.S. Supreme Court concluded that the equal sovereignty doctrine requires a federal legislation’s disparate impact among states to have a sufficient relationship to its targeted problems. In emphasizing the importance of this heightened standard, the Court breathed new life into this long dormant body of law. Following Shelby County, it is unclear how the equal sovereignty doctrine applies to economic regulations that discriminate among states, such as the Professional and Amateur Sports Protection Act (“PASPA”). This Note argues that the equal sovereignty doctrine applies to all regulations that treat states differently. Under this test, an economic regulation will be upheld only if its disparate burdens are sufficiently related to the problem that it seeks to address. This approach best effectuates the Supreme Court’s recent revival of the equal sovereignty doctrine and reinforces uniformity as a constraint on the Commerce Clause power. Under this test, PASPA fails to meet the equal sovereignty standard because allowing a select number of states to retain sports gambling schemes is not sufficiently related to Congress’s purported goal of curbing the spread of sports gambling. The demise of PASPAas unconstitutional, therefore, is a safe bet. MICHAEL WELSH

it is a 31 page summery to defend state rights to regulation of gambling laws, allowed before prohibition.

Ginsburg.

2. The Dissenting Opinion: Justice Ginsburg Predicts PASPA’s Demise Justice Ginsburg’s dissenting opinion contended that the application of the equal sovereignty doctrine is limited to the context of states joining the Union.78 Justice Ginsburg accused the majority of ignoring the Court’s precedent and extending the equal sovereignty doctrine outside of its proper domain.79 According to the Shelby County dissent, the Katzenbach Court expressly held that the equal sovereignty doctrine applied only to the admission of new states and not to subsequent unequal treatment.80 Therefore, the dissent contended that the VRA remained an appropriate congressional action under the Fifteenth Amendment, despite the disparate treatment of states.81 The dissent disagreed with the majority that a statute’s disparate treatment of states must be sufficiently related to the legislation’s targeted problems.82 Under the test outlined by the majority, the Court will only uphold discriminatory legislation upon a showing that the act sufficiently addresses a continuing problem found exclusively within the targeted states.83 As a result, the dissent explained that this expanded test may render other legislation beyond the VRA unconstitutional.84 The dissent reasoned that Congress’s choice.

footnotes.

78 Id. at 2649 (Ginsburg, J., dissenting). Compare Katzenbach, 383 U.S. at 328–29 (holding that the equal sovereignty doctrine applies only to the terms upon which a state is admitted to the Union— not to remedy local evils which have subsequently appeared), and Coyle, 221 U.S. at 567 (noting that the equal sovereignty doctrine applies only to the terms upon which a state is admitted to the Union), with Shelby Cnty., 133 S. Ct. at 2624 (noting that the equal sovereignty doctrine remains highly pertinent in assessing subsequent disparate treatment of states). 79 See Shelby Cnty., 133 S. Ct. at 2644 (Ginsburg, J., dissenting) (explaining that the majority “veer[ed] away from controlling precedent”). 80 Id. at 2649 (citing Katzenbach, 383 U.S. at 328–29). 81 See id. at 2651–52. 82 Id. at 2649 (contending that the equal sovereignty doctrine is limited to the context of newly formed states and does not apply to subsequent disparate treatment of states). Although the majority relied on language from Northwest Austin—an opinion joined by two Shelby County dissenters— stating that the disparate treatment of states requires must be sufficiently related to a legislation’s targeted problems, the dissent dismissed this as dictum and argued that the majority’s reliance upon it was untenable. See id. (opining “[i]f the Court is suggesting that dictum in Northwest Austin silently overruled Katzenbach’s limitation of the equal sovereignty doctrine to ‘the admission of new states,’ the suggestion is untenable”). See generally Michael James Burns, Note, Shelby County v. Holder and the Voting Rights Act: Getting the Right Answer with the Wrong Standard, 62 CATH. U. L.REV. 227, 241 (2012) (explaining that the Supreme Court did not reach the constitutional challenge in Northwest Austin). Instead, the dissent contended that stare decisis required the Court to adhere to Katzenbach’s ruling on the limited significance of the equal sovereignty doctrine. Shelby Cnty., 133 S. Ct. at 2649 (Ginsburg, J., dissenting). See generally Katzenbach, 383 U.S. at 328–29 (holding that the equal sovereignty doctrine does not apply to legislation that is intentionally confined to a small number of states). 83 Shelby Cnty., 133 S. Ct. at 2630 (quoting Nw. Austin, 557 U.S. at 203); see also id. at 2649–50 (Ginsburg, J., dissenting) (noting that the majority’s holding creates a dual burden on proponents of the challenged legislation). 84 Id. at 2649 (Ginsburg, J., dissenting)

It is possible for the court to hear arguments and

overturn PAPSA as unconstitutional.

Ginsburg can author the dissenting decision against overturn ment.

Impressive seeing Associate Justice Ginsburg is nearing 84 and active on the bench.

 83 years

And you can do 55. Congrats.