The high-profile Supreme Court ruling in Murphy v. National Collegiate Athletic Association, in which 6 Justices paved the way for state and local governments and private entities to participate in sports-betting enterprises, is noteworthy for three reasons.
First, Murphy is a textbook example of a dynamic often seen in law in general and constitutional law in particular: the significant gap between the social, economic (and, to some eyes, moral) implications of a controversy and its key legal dimensions once it ends up in court. Second, Murphy shows that what ultimately divides justices when the Court finally hands down a ruling may be quite different from the seemingly “big” issue going into oral argument.
And as a law professor who has taught and written about statutory construction in the shadow of constitutional disputes, I see Murphy as an engaging vehicle for exploring “severability,” the subtle yet important secondary issue often arising when one or more parts of a law are declared unconstitutional. Deciding about severability can be an especially challenging judicial assignment. And, as Justice Thomas noted in his Murphy concurrence, especially difficult issues about appropriate judicial roles arise.
Socio-Economic ≠ Legal
Media coverage of Murphy emphasized the practical implications of the ruling in green-lighting sports betting. This is not surprising for, as Justice Alito’s majority opinion noted, “the legalization of sports gambling is a controversial subject.” As Alito put it: “Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.”
Opponents’ concerns prevailed in 1992, when Congress enacted the Professional and Amateur Sports Protect Act (PASPA). The specific PASPA section disputed in Murphy [28 U.S.C. § 3702(1)] made it unlawful for almost all state or local governments (except Las Vegas and a couple of others with existing sports-betting regimes) to “sponsor, operate…promote…or authorize by law or compact” a sports-gambling scheme.
Whatever the societal dimensions of state-sponsored sports betting, when the dispute landed in federal court it took on a quite different coloration. Extensive briefing during two rounds of lower-court consideration instead argued whether disputed PASPA Section 3702(1) was unconstitutional because it violated the “anti-commandeering principle.” Articulated in a 26-year-old case, New York v. United States, the anti-commandeering doctrine limits the power of federal officials to force their desired policies on reluctant state or local officials. There is nothing constitutionally amiss about the federal government encouraging states to adopt federal policies (for example, by offering federal grants if states adopt specified laws or regulations related to grant purposes). But both to respect state sovereignty (a state’s right to “just say no” to federal pressure) and to make clear to voters which level of government is responsible for laws they dislike, New York invalidated a provision of a federal low-level-nuclear-waste law requiring states to either adopt federally dictated policies or take other regulatory action.
From the lens of the anti-commandeering principle, the main legal question in Murphy was whether the disputed PASPA section unconstitutionally coerced states by preventing them from modifying or repealing laws prohibiting sports gambling. The United States argued, and two sets of district- and court-of-appeals judges agreed, that because PASPA did not “affirmatively command” states to adopt laws, PASPA was constitutional.
A Different Divisive Issue
Murphy disappointed Court watchers expecting strong, ideologically driven divisions among the justices on the anti-commandeering principle. This happened in New York, and five years later in Printz v. United States, invalidating laws dictating state and local enforcement of federal policies. In Murphy, Justice Alito’s majority opinion, with support from five other justices (four other justices generally regarded as “conservative” and “liberal” Justice Kagan), found “empty” any attempt to draw subtle distinctions between laws requiring states to legislate and laws prohibiting the enactment of new laws. The Alito opinion also rejected the efforts of PASPA defenders to claim legitimacy under other states-rights precedents and characterize PASPA as a valid federal preemption of state law.
Significantly absent was any serious dissent on anti-commandeering grounds from the other three justices. Although ultimately disagreeing with the majority for other reasons (to be discussed soon!), Justice Breyer concurred with the Alito Six that the disputed PASPA section was unconstitutional. The most resistance the remaining two dissenters (Justices Ginsburg and Sotomayor) could muster was to “assume[ ] arguendo” that disputed PASPA section was unconstitutional, and go on to fight about what this meant for the remaining statutory provisions.
Instead of a serious battle over states rights, then, the divisive issue in Murphy turned out to be one that often arises when part of a law is found constitutionally wanting -whether the invalid portion can be appropriately “severed” from the remainder. The principles of “statutory severability” analysis can be easily stated: Even in the absence of a “severability clause” stating congressional wishes to preserve remaining statutory morsels, Congress is presumed to so desire unless, in the words of the New York v. U.S. majority, “it is evident that the Legislature would not have enacted those provisions” without the now-invalidated part.
Straightforward in theory, severability questions can be quite messy and daunting in application. A recent case in point: Had a majority of the Court held that the “individual mandate” in the Affordable Care Act was unconstitutional, the justices would have faced especially gnarly conundrums about how much, if any, of Obamacare Congress would have enacted in the absence of that significant incentive-creating provision. Avoiding severability difficulties and possibly having to strike the entire Act may have been one strong motivation for Chief Justice Roberts’ (in)famously decisive fifth vote to uphold the mandate under an alternative (taxation) theory in National Federation of Independent Businesses v. Sebelius.
The severability smackdown in Murphy turned on whether to leave intact other PASPA provisions in the wake of the invalidated provision. And that in turn depended upon how each justice viewed the interaction of the law’s different sections.
Seeing Congress as strongly wanting to limit the operation of sports-betting schemes by governmental or private entities, dissenting Justices Ginsburg and Sotomayor would have achieved that by preserving two other PASPA provisions. (Memorable line from the dissent: “When a statute reveals constitutional flaws, the Court ordinarily engages in a salvage rather than a demolition operation.”)
Partially dissenting Justice Breyer went halfway; he would have saved one statutory prohibition on private sports-betting schemes. Breyer justified this result in terms of Congress’ “obvious” desire to “keep sports gambling from spreading.”
By contrast, Justice Alito’s majority saw a quite different congressional intent. In essence, the majority read other gambling statutes as “respecting the policy choices of the people of each State” by making private gambling illegal “only if the underlying gambling is illegal under state or local law.” To further that policy, the majority struck down all PASPA’s prohibitions.
Shining a Spotlight on Severability Difficulties
All of which makes Murphy a great example of the difficulties and uncertainties severability analysis poses. Trying to figure out Congress’ actual intent is hard enough. Complex questions of methodology arise (for example, plain meaning vs. intent-based analysis of legislative history). And inter-connected questions of statutory operation and word interpretation abound.
But severability poses an even more contingent question of hypothetical congressional intent – what would Congress want if it had known that it couldn’t have what it actually enacted?
Beyond the difficulties of methodology and application, severability may – at least according to Justice Thomas – raise more basic questions about the proper judicial role. In his concurrence, Thomas expressed his “growing discomfort with our modern severability precedents” and called for reconsidering them “at some point.” Thomas critiqued the modern severability enterprise as “in tension with longstanding limits on the judicial power.” Specifically, Thomas worried that “[w]ithout any actual evidence of intent, the severability doctrine invites courts to rely on their own views about what the best statute would be.” Echoing a long-standing concern of the late Justice Scalia, Thomas objected that courts end up enacting hypothetical intentions that were not “enshrined in a text” passed by congressional majorities and presented to the president.
Of course, modern severability doctrines are well established. They may prove impervious to Justice Thomas’ attacks.
Still, the stated misgivings underline what is ultimately at stake in severability decision-making. And they show the high practical stakes involved in whether the Court gets congressional intent right. Even though Congress can in theory clear away an erroneous judicial resolution by enacting a new statute, PASPA is a perfect example of how, 26 years after its enactment, the political, social, and economic dynamics now at play in Congress could be quite different.
Professor Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego. He is the principal co-author of CONSTITUTIONAL LAW FOR DUMMIES [John Wiley & Sons, Inc. 2012]. His article on severability appeared in the Harvard Journal on Legislation [From Unnecessary Surgery to Plastic Surgery: A New Approach to the Legislative Veto Severabiity Cases, 24 HARV. J. ON LEGIS. 397 (1987)].