Article  |  Volume 2

The Pendulum Swings: Commerce Clause and Tenth Amendment Challenges to PASPA

by III Thomas L.

The Professional and Amateur Sports Protection Act (“PASPA”) prohibits betting, gambling, or wagering on competitive games (“sports betting,” “sports gambling,” or “sports wagering”) wherein professional or amateur athletes participate or are intended to participate. Enacted in 1992, PASPA makes it illegal for any government entity or person to participate in or sponsor sports betting in all but a few states. Exemptions were carved out for parimutuel animal racing, jai-alai games, and for sports betting gambling schemes already in existence or that would become authorized within one year from the effective date of PASPA, provided that the municipality authorizing sports betting had continually operated a commercial casino gaming scheme throughout the previous ten years.

This Note will address the strength of the Commerce Clause argument (from a historical perspective) as the basis for challenging PASPA and whether opponents are likely to succeed under this theory in the courts. Part I will discuss the evolution of Commerce Clause jurisprudence through relevant case law history. Part II will discuss the relevant case law history of states’ rights under the Tenth Amendment. Part III will evaluate the potential outcomes and likely result of PASPA litigation based on a Commerce Clause or Tenth Amendment challenge before the Supreme Court.

2 UNLV Gaming L.J. 311 (2011)