PASPA Swung and Missed, But Congress Can Still Be at Bat If It Wants To

Easy Federal Statutory Responses to Murphy v. NCAA

Murphy v. NCAA was a hard case to understand–its result may be defensible, indeed correct, even as its explanations were confused and confusing. But one thing that is clear is that the constitutional defects the Court perceived in the federal Professional and Amateur Sports Protection Act (PASPA) have nothing to do with whether Congress possesses power to effectively regulate the sports-gambling industry throughout the nation. For this important reason, the federal government can easily reinstate PASPA’s apparent policy preferences concerning sports gambling if our leaders in D.C. choose to so do. In this essay, I explain why even after Murphy Congress continues to have broad regulatory powers in this realm, and how Congress could (re)assert its authority to accomplish PASPA’s objectives, without running afoul of anything said or suggested by the Murphy Court, with a new statute.

a. Dean and Iwan Foundation Professor, University of Illinois College of Law. I thank the members of the Illinois Law Review for inviting me to participate in this Issue, and for their help in preparing this article. I also note that large swaths of the substantive analysis of Murphy v. NCAA are drawn from my previous article on the federalism aspects of the case, Vikram David Amar, “Clarifying” Murphy’s Law: Did Something Go Wrong in Reconciling Commandeering and Conditional Preemption Doctrines? 2018 Sup. Ct. Rev. 299 (2019).

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