On Collusion and Commandeering

The word "collusion" has become exceedingly popular of late. President Trump used it 16 times in a 30-minute interview with two New York Times reporters back in December. What those who have been paying attention have learned is that "collusion" is not a legal term. The legal term for the crime being referred to would have to be a conspiracy to violate election laws. Trump insists on his innocence, but the special counsel is still on the job, so the final word has not yet been spoken.

This week the Supreme Court has brought a new word to our attention, "commandeering", in its sports betting decision. In that decision the Court relied on what has been known as "the anticommandeering principle", first set out in two decisions from the 1990s.  That principle says that Congress cannot dictate to state legislatures what they can and cannot do.

Congress can legislate in the substantive area involved; i.e., in the case of gambling it could prohibit all gambling nationwide, and federal law would then take precedence over state law under the "preemption" principle. However, Congress cannot prohibit states from allowing and regulating gambling, which it tried to do with the 1992 in question here.

It is surprising that "commandeering" is a legal principle, while "collusion" is not, but that's what we have learned recently.

It might be surprising to many that Congress does not have the power to dictate to state legislatures. What people need to understand is that we have a federalist system, meaning that power is divided between the federal government and the states, with the federal government possessing only those powers granted to it under our constitution. Indeed, in the recent Supreme Court decision, Clarence Thomas, in a concurring opinion, expresses doubt that the federal government has any power to regulate gambling. It is properly a matter for the states, and this most welcome decision makes that clear.

It seems odd that for 26 years we had a situation where states could legally hold lotteries, which 44 states have done, but could not allow gambling on sporting events. The difference here is twofold: 1) Lotteries are pure chance, while sports betting requires some thought; and 2) Lotteries skim off 50% or more of the proceeds off the top, leaving at most half for the players. Sports bookies, by contrast, only take 5% for themselves, making this a much fairer game to play compared to the ripoff lottery system.