Can the federal government at times and, in all places, commandeer the states to act in a certain way? “Commandeering” refers to a federal requirement that state officials enact, administer, or enforce a federal regulatory program. There are limits to the federal government’s constitutional authority to do so, which are discussed in a recent decision by the U.S. Court of Appeals for the Third Circuit. On August 9, the Court of Appeals held that a 2014 New Jersey law, which partially repealed the state’s prohibitions on sports betting, was preempted by the federal Professional and Amateur Sports Protection Act. Consequently, the federal law prohibiting sports betting will prevail in New Jersey, where the Legislature was hoping to find a way to generate more revenues for its casinos and racetracks. The en banc Court of Appeals rejected New Jersey’s arguments that the federal law was unconstitutional because it “commandeered” the states to act in a way that violates the Constitution. This case is NCAA v. Governor of New Jersey. Of interest, the U.S. Supreme Court has held that, under the commandeering doctrine, the federal government cannot compel or coerce the states, as separate sovereigns, to enact legislation demanded by the federal government.
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