This Article argues that the U.S. Supreme Court’s majority opinion striking down the Professional and Amateur Sports Protection Act (PASPA) in Murphy v. NCAA1 failed to convincingly establish sufficient cause to upset the Constitution’s allocation to the federal government of protective, supervisory, and prohibitive powers over interstate and foreign commerce. These powers necessarily require an ability to preclude non-federal entities from undercutting national policy. The Murphy majority’s failure is especially evident when the form of interstate commerce addressed by federal legislation involved in that case addressed a historical vice—commercialized gambling, not mere social or charitable gambling—that provably (i) adversely impacts public health and workplace productivity, (ii) increases instances and risks of corruption in government and to historically-treasured national commerce, such as professional and amateur sports, and (iii) employs means that cannot be adequately policed in the Internet era. The Murphy majority opinion relied upon those Justices’ personal perception of what federalism requires. In doing so, they elevated their personal opinions over the plain words of the Federal Constitution. Those Justices, like the commercialized gambling industry, may have disagreed with PASPA on a policy basis but, under the Constitution, the decision to enact such nationally-protective legislation plainly has been assigned to Congress, and PASPA was a proper exercise of that power. Nothing in the words nor implicit in the structure of the Constitution would, sensibly, preclude the federal government from prohibiting any entity, including states (which surrendered aspects of sovereign authority over certain commerce upon choosing to join the national government) from authorizing conduct in interstate or foreign commerce plainly adverse to federal policy. To rule otherwise brings from the grave a structural weakness long thought buried when the inefficient Articles of Confederation were replaced by the present U.S. Constitution.
a. Adjunct Professor, Washington University School of Law, St. Louis, MO; Counsel, St. Louis Fusion Center; Special Assistant U.S. Attorney, 2019–2020, and Assistant U.S. Attorney, 1983–2008, Eastern District of Missouri; Coordinator, Anti-Terrorism Advisory Council, 2001-2008; Special Attorney to the United States Attorney General, 1995–1997; U.S. Department of Justice Exceptional Service Award recipient; Special Advisor to the Missouri Office of Homeland Security; consultant on domestic and transnational criminal law and procedure, anti-money laundering, counterterrorism, intelligence, and emergency planning issues; Lecturer, USDOJ National Advocacy Center, 1994–2007, as well as at international, law school, corporate, law enforcement, and college training sessions; Litigation Attorney, Bryan, Cave, McPheeters, and McRoberts, 1982–1983 (now Bryan Cave Leighton Paisner LLP); Assistant Circuit Attorney for the City of St. Louis, 1977–1982. J.D., Washington University School of Law, 1977; B.Sci., with honors, Southern Illinois University at Carbondale, 1974.
I am grateful for suggestions and research assistance from John Warren Kindt, Les Bernal, and the editorial staff at the University of Illinois Law Review. Errors, if any, are unintentional and my fault, alone.
1. Murphy v. NCAA, 138 S. Ct. 1461 (2018).
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