Christie v. National Collegiate Athletic Assn. (16-476)

argument 16-476

Christie v. National Collegiate Athletic Assn.

Supreme Court of the United States 1h 3m 7 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the constitutional basis for Congress’s power to preempt state gambling laws?

John G. Roberts 0:00

We'll hear argument first this morning in case sixteen four seventy six, Christie versus NCAA, and the consolidated case sixteen four seventy seven. the New Jersey Thoroughbred Horsemen's Association versus NCAA. Mr Olson.

Antonin Scalia 0:16

Thank you, Mr M Chief Justice, and may it please the Court. One of the most important decisions made at the Constitutional Convention in seventeen eighty seven was replacing the failed confederacy that governed states. with a national government that could regulate individuals but not states. In the words of this court in the New York case, Congress may regulate interstate commerce directly. but it may not regulate State's regulation of interstate commerce.

Unknown 0:50

Mr Olson, isn't that Well The government does whenever it preempts state laws, it says you can't regulate.

Antonin Scalia 1:00

When when the government preempts State laws, the government or the Federal Government has initially taken the position or taken an action to regulate Interstate commerce in some respect, and when it does that, this Court has repeatedly held it may preempt contradictory or inconsistent State laws. But what do you

Elena Kagan 1:20

make of FERC? Yeah, what do you make of FERC? FERC. the government gave the state a choice. Regulate this way. Or don't regulate.

Antonin Scalia 1:32

That's right. It gave it gave the States a choice in conjunction with the regulation of the area that was

Elena Kagan 1:40

there were federal standards. The States were told accept them or don't. But if you don't You won't regulate, neither will we.

Antonin Scalia 1:50

So As a matter of fact, the what the consequence of that is that the the States could regulate according to the standards established by the Federal Government with respect to the regulation of Interstate Commerce, and if the States chose not to do that, the field was left to the Federal Government. This is a direct PASPA, is a direct command to the States without any effort to regulate sports wagering. Well the airline deregulation act is the obvious example. Yes, and the Airline Deregulation Act is a very, very good example, because in that case, the Congress of the United States took a wide responsibility with respect to airline deregulation. Airline regulation, as a matter of fact, that statute as has a panoply of provisions regulating airlines in various different respects, including

Antonin Scalia 2:41

No, but

Stephen G. Breyer 2:41

I suppose they hadn't. I mean they say we don't want the price and routes of airlines der regulated. Period. We don't want to regulate it. That's the Federal statute, and it says now states you can't regulate them and we don't regulate their prices. Free market does. Okay. Here they say i imagine I maybe say they say uh we're not going to regulate sports gambling uh at all. Uh we're not going to forbid it. and we don't want you or we you know we want you to forbid it. I I mean you can you see the analogy.

Antonin Scalia 3:10

I do see the analogy in the Morales case to which you are referring, uh ha it discusses in great detail the Federal regulatory scheme which included as a portion of the Federal regulatory scheme a preemption of the States from regulating fares, conditions of service, and that sort of thing. But but Justice Breyer, that is an area, it's a clas quintessential example of the Federal Government taking responsibility for how airlines flew in this country and deciding in certain areas yes, it could be preempted. This statute is completely different. Well what

Anthony M. Kennedy 3:46

does that mean? What would you be looking for? When you say that the federal government took responsibility. I mean, suppose that the federal government had just said We don't want states to regulate, we don't want to regulate ourselves. We just went. I think this is what Justice Breyer's question was. a free market. So is that enough responsibility that the federal government has taken?

Antonin Scalia 4:09

I believe it is not, because that is a situation where the where the Congress would be saying, we're choosing to regulate States. We're telling States that you may not participate in regulating commerce that is taking place in your State. We don't want to take any responsibility. We want to put the burden and expense and accountability all on the States to do so.