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Sports Bet Decision Reveals Hidden Preemption Requirement

Law360 (May 16, 2018, 11:18 AM EDT) -- On May 14, the U.S. Supreme Court held in Murphy v. National Collegiate Athletic Association that the Professional and Amateur Sports Protection Act is unconstitutional because its prohibition against states authorizing sports betting, 28 U.S.C. § 3702(1), violates the “anticommandeering principle.” This fundamental principle of federalism “simply represents the recognition” that the limited, enumerated, legislative powers which the Constitution grants to Congress do not include “the power to issue direct orders to the governments of the States.”[1] Instead, “[t]he Constitution ... ‘confers upon Congress the power to regulate individuals, not States.’”[2]

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