Betting on State Equality: How the Expanded Equal Sovereignty Doctrine Applies to the Commerce Clause and Signals the Demise of the Professional and Amateur Sports Protection Act

Abstract

In recent years, the U.S. Supreme Court revived the long-dormant equal sovereignty doctrine, which states that the federal government cannot enact legislation that renders states unequal in power, dignity, and authority. Although the doctrine historically applied only in the context of states entering the Union, in the 2013 case Shelby County v. Holder, the Supreme Court broadened the doctrine’s scope, holding that the doctrine applied to all disparate treatment of states. As such, the revived equal sovereignty doctrine leaves federal statutes—such as the Professional and Amateur Sports Protection Act (“PASPA”), which prohibits state-sanctioned casino sports gambling in all states except for Nevada—on uncertain constitutional grounds. Contrary to a recent Third Circuit holding, this Note argues that PASPA’s disparate treatment of states violates the equal sovereignty doctrine. Under an approach developed by this Note, which requires Congress to demonstrate that disparate treatment of states is sufficiently related to the problem that the statute seeks to address, this Note contends that PASPA violates the equal sovereignty doctrine because the exemption of Nevada is not reasonably related to the national problem of sports gambling, which PASPA seeks to address. Importantly, adopting this approach would harmonize the Supreme Court’s Commerce Clause jurisprudence with its recently expanded equal sovereignty doctrine analysis.