Murphy v. National Collegiate Athletic Association, 584 U.S. ___ (2018)

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 16–476 and 16–477

_________________

PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, et al., PETITIONERS

16–476v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER

16–477v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

on writs of certiorari to the united states court of appeals for the third circuit

[May 14, 2018]

Justice Breyer, concurring in part and dissenting in part.

I agree with Justice Ginsburg that 28 U. S. C. §3702(2) is severable from the challenged portion of §3702(1). The challenged part of subsection (1) prohibits a State from “author[izing]” or “licens[ing]” sports gambling schemes; subsection (2) prohibits individuals from “sponsor[ing], operat[ing], advertis[ing], or promot[ing]” sports gambling schemes “pursuant to the law . . . of a governmental entity.” The first says that a State cannot authorize sports gambling schemes under state law; the second says that (just in case a State finds a way to do so) sports gambling schemes that a State authorizes are unlawful under federal law regardless. As Justice Ginsburg makes clear, the latter section can live comfortably on its own without the first.

Why would Congress enact both these provisions? The obvious answer is that Congress wanted to “keep sports gambling from spreading.” S. Rep. No. 102–248, pp. 4–6 (1991). It feared that widespread sports gambling would “threate[n] to change the nature of sporting events from wholesome entertainment for all ages to devices for gambling.” Id., at 4. And it may have preferred that state authorities enforce state law forbidding sports gambling than require federal authorities to bring civil suits to enforce federal law forbidding about the same thing. Alternatively, Congress might have seen subsection (2) as a backup, called into play if subsection (1)’s requirements, directed to the States, turned out to be unconstitutional—which, of course, is just what has happened. Neither of these objectives is unreasonable.

So read, the two subsections both forbid sports gambling but §3702(2) applies federal policy directly to individuals while the challenged part of §3702(1) forces the States to prohibit sports gambling schemes (thereby shifting the burden of enforcing federal regulatory policy from the Federal Government to state governments). Section 3702(2), addressed to individuals, standing alone seeks to achieve Congress’ objective of halting the spread of sports gambling schemes by “regulat[ing] interstate commerce directly.” New York v. United States, 505 U. S. 144, 166 (1992). But the challenged part of subsection (1) seeks the same end indirectly by “regulat[ing] state governments’ regulation of interstate commerce.” Ibid. And it does so by addressing the States (not individuals) directly and telling state legislatures what laws they must (or cannot) enact. Under our precedent, the first provision (directly and unconditionally telling States what laws they must enact) is unconstitutional, but the second (directly telling individuals what they cannot do) is not. See ibid.

As so interpreted, the statutes would make New Jersey’s victory here mostly Pyrrhic. But that is because the only problem with the challenged part of §3702(1) lies in its means, not its end. Congress has the constitutional power to prohibit sports gambling schemes, and no party here argues that there is any constitutional defect in §3702(2)’s alternative means of doing so.

I consequently join Justice Ginsburg’s dissenting opinion in part, and all but Part VI–B of the Court’s opinion.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 16–476 and 16–477

_________________

PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, et al., PETITIONERS

16–476v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER

16–477v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

on writs of certiorari to the united states court of appeals for the third circuit

[May 14, 2018]

Justice Alito delivered the opinion of the Court.

The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to “authorize” sports gambling schemes. 28 U. S. C. §3702(1). We must decide whether this provision is compatible with the system of “dual sovereignty” embodied in the Constitution.

I

A

Americans have never been of one mind about gambling, and attitudes have swung back and forth. By the end of the 19th century, gambling was largely banned throughout the country,[1] but beginning in the 1920s and 1930s, laws prohibiting gambling were gradually loosened.

New Jersey’s experience is illustrative. In 1897, New Jersey adopted a constitutional amendment that barred all gambling in the State.[2] But during the Depression, the State permitted parimutuel betting on horse races as a way of increasing state revenue,[3] and in 1953, churches and other nonprofit organizations were allowed to host bingo games.[4] In 1970, New Jersey became the third State to run a state lottery,[5] and within five years, 10 other States followed suit.[6]

By the 1960s, Atlantic City, “once the most fashionable resort of the Atlantic Coast,” had fallen on hard times,[7] and casino gambling came to be seen as a way to revitalize the city.[8] In 1974, a referendum on statewide legalization failed,[9] but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone.[10] At that time, Nevada was the only other State with legal

casinos,[11] and thus for a while the Atlantic City casinos had an east coast monopoly. “With 60 million people living within a one-tank car trip away,” Atlantic City became “the most popular tourist destination in the United States.”[12] But that favorable situation eventually came to an end.

With the enactment of the Indian Gaming Regulatory Act in 1988, 25 U. S. C. §2701 et seq., casinos opened on Indian land throughout the country. Some were located within driving distance of Atlantic City,[13] and nearby States (and many others) legalized casino gambling.[14] But Nevada remained the only state venue for legal sports gambling in casinos, and sports gambling is immensely popular.[15]

Sports gambling, however, has long had strong opposition. Opponents argue that it is particularly addictive and especially attractive to young people with a strong interest in sports,[16] and in the past gamblers corrupted and seriously damaged the reputation of professional and amateur sports.[17] Apprehensive about the potential effects of sports gambling, professional sports leagues and the National Collegiate Athletic Association (NCAA) long opposed legalization.[18]

B

By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling,[19] and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA). 28 U. S. C. §3701 et seq. PASPA’s proponents argued that it would protect young people, and one of the bill’s sponsors, Senator Bill Bradley of New Jersey, a former college and professional basketball star, stressed that the law was needed to safeguard the integrity of sports.[20] The Department of Justice opposed the bill,[21] but it was passed and signed into law.

PASPA’s most important provision, part of which is directly at issue in these cases, makes it “unlawful” for a State or any of its subdivisions[22] “to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events. §3702(1). In parallel, §3702(2) makes it “unlawful” for “a person to sponsor, operate, advertise, or promote” those same gambling schemes[23]—but only if this is done “pursuant to the law or compact of a governmental entity.” PASPA does not make sports gambling a federal crime (and thus was not anticipated to impose a significant law enforcement burden on the Federal Government).[24] Instead, PASPA allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. §3703.

At the time of PASPA’s adoption, a few jurisdictions allowed some form of sports gambling. In Nevada, sports gambling was legal in casinos,[25] and three States hosted sports lotteries or allowed sports pools.[26] PASPA contains “grandfather” provisions allowing these activities to continue. §3704(a)(1)–(2). Another provision gave New Jersey the option of legalizing sports gambling in Atlantic City—provided that it did so within one year of the law’s

effective date. §3704(a)(3).[27]

New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart. New Jersey voters approved an amendment to the State Constitution making it lawful for the legislature to authorize sports gambling, Art. IV, §7, ¶2(D), (F), and in 2012 the legislature enacted a law doing just that, 2011 N. J. Laws p. 1723 (2012 Act).

The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. In response, the State argued, among other things, that PASPA unconstitutionally infringed the State’s sovereign authority to end its sports gambling ban. See National Collegiate Athletic Assn. v. Christie, 926 F. Supp. 2d 551, 561 (NJ 2013).

In making this argument, the State relied primarily on two cases, New York v. United States, 505 U. S. 144 (1992), and Printz v. United States, 521 U. S. 898 (1997), in which we struck down federal laws based on what has been dubbed the “anticommandeering” principle. In New York, we held that a federal law unconstitutionally ordered the State to regulate in accordance with federal standards, and in Printz, we found that another federal statute unconstitutionally compelled state officers to enforce federal law.

Relying on these cases, New Jersey argued that PASPA is similarly flawed because it regulates a State’s exercise

of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling. See National Collegiate Athletic Assn. v. Christie, 926 F. Supp. 2d, at 561–562. The plaintiffs countered that PASPA is critically different from the commandeering cases because it does not command the States to take any affirmative act. Id., at 562. Without an affirmative fed- eral command to do something, the plaintiffs insisted, there can be no claim of commandeering. Ibid.

The District Court found no anticommandeering violation, id., at 569–573, and a divided panel of the Third Circuit affirmed, National Collegiate Athletic Assn. v. Christie, 730 F. 3d 208 (2013) (Christie I ). The panel thought it significant that PASPA does not impose any affirmative command. Id., at 231. In the words of the panel, “PASPA does not require or coerce the states to lift a finger.” Ibid. (emphasis deleted). The panel recognized that an affirmative command (for example, “Do not repeal”) can often be phrased as a prohibition (“Repeal is prohibited”), but the panel did not interpret PASPA as prohibiting the repeal of laws outlawing sports gambling. Id., at 232. A repeal, it thought, would not amount to “authoriz[ation]” and thus would fall outside the scope of §3702(1). “[T]he lack of an affirmative prohibition of an activity,” the panel wrote, “does not mean it is affirmatively authorized by law. The right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people.” Id., at 232 (emphasis deleted).

New Jersey filed a petition for a writ of certiorari, raising the anticommandeering issue. Opposing certiorari, the United States told this Court that PASPA does not require New Jersey “to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA’s enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part.” Brief for United States in Opposition in Christie v. National Collegiate Athletic Assn., O. T. 2013, No. 13–967 etc., p. 11. See also Brief for Respondents in Opposition in No. 13–967 etc., p. 23 (“Nothing in that unambiguous language compels states to prohibit or maintain any existing prohibition on sports gambling”). We denied review. Christie v. National Collegiate Athletic Assn., 573 U. S. ___ (2014).

Picking up on the suggestion that a partial repeal would be allowed, the New Jersey Legislature enacted the law now before us. 2014 N. J. Laws p. 602 (2014 Act). The 2014 Act declares that it is not to be interpreted as causing the State to authorize, license, sponsor, operate, advertise, or promote sports gambling. Ibid. Instead, it is framed as a repealer. Specifically, it repeals the provisions of state law prohibiting sports gambling insofar as they concerned the “placement and acceptance of wagers” on sporting events by persons 21 years of age or older at a horseracing track or a casino or gambling house in Atlantic City. Ibid. The new law also specified that the repeal was effective only as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State. Ibid.

Predictably, the same plaintiffs promptly commenced a new action in federal court. They won in the District Court, National Collegiate Athletic Assn. v. Christie, 61 F. Supp. 3d 488 (NJ 2014), and the case was eventually heard by the Third Circuit sitting en banc. The en banc court affirmed, finding that the new law, no less than the old one, violated PASPA by “author[izing]” sports gambling. National Collegiate Athletic Assn. v. Governor of N. J., 832 F. 3d 389 (2016) (case below). The court was unmoved by the New Jersey Legislature’s “artful[ ]” attempt to frame the 2014 Act as a repealer. Id., at 397. Looking at what the law “actually does,” the court concluded that it constitutes an authorization because it “selectively remove[s] a prohibition on sports wagering in a manner that permissively channels wagering activity to particular locations or operators.” Id., at 397, 401. The court disavowed some of the reasoning in the Christie I opinion, finding its discussion of “the relationship between a ‘repeal’ and an ‘authorization’ to have been too facile.” 832 F. 3d, at 401. But the court declined to say whether a repeal that was more complete than the 2014 Act would still amount to an authorization. The court observed that a partial repeal that allowed only “de minimis wagers between friends and family would not have nearly the type of authorizing effect” that it found in the 2014 Act, and it added: “We need not . . . articulate a line whereby a partial repeal of a sports wagering ban amounts to an authorization under PASPA, if indeed such a line could be drawn.” Id., at 402 (emphasis added).

Having found that the 2014 Act violates PASPA’s prohibition of state authorization of sports gambling schemes, the court went on to hold that this prohibition does not contravene the anticommandeering principle because it “does not command states to take affirmative actions.” Id., at 401.

We granted review to decide the important constitutional question presented by these cases, sub nom. Christie v. National Collegiate Athletic Assn., 582 U. S. ___ (2017).

II

Before considering the constitutionality of the PASPA provision prohibiting States from “author[izing]” sports gambling, we first examine its meaning. The parties advance dueling interpretations, and this dispute has an important bearing on the constitutional issue that we must decide. Neither respondents nor the United States, appearing as an amicus in support of respondents, contends that the provision at issue would be constitutional if petitioners’ interpretation is correct. Indeed, the United States expressly concedes that the provision is unconstitutional if it means what petitioners claim. Brief for United States 8, 19.

A

Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration. One of the accepted meanings of the term “authorize,” they point out, is “permit.” Brief for Petitioners in No. 16–476, p. 42 (citing Black’s Law Dictionary 133 (6th ed. 1990); Webster’s Third New International Dictionary 146 (1992)). They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization. Brief for Petitioners in No. 16–476, at 42.

Respondents interpret the provision more narrowly. They claim that the primary definition of “authorize” requires affirmative action. Brief for Respondents 39. To authorize, they maintain, means “ ‘[t]o empower; to give a right or authority to act; to endow with authority.’ ” Ibid. (quoting Black’s Law Dictionary, at 133). And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations.

Respondents do not take the position that PASPA bans all modifications of old laws against sports gambling, Brief for Respondents 20, but just how far they think a modification could go is not clear. They write that a State “can also repeal or enhance [laws prohibiting sports gambling] without running afoul of PASPA” but that it “cannot ‘partially repeal’ a general prohibition for only one or two preferred providers, or only as to sports-gambling schemes conducted by the state.” Ibid. Later in their brief, they elaborate on this point:

“If, for example, a state had an existing felony prohibition on all lotteries, it could maintain the law, it could repeal the law, it could downgrade the crime to a misdemeanor or increase the penalty . . . . But if the state modified its law, whether through a new authorization or through an amendment partially repealing the existing prohibition, to authorize the state to conduct a sports lottery, that modified law would be preempted.” Id., at 31.

The United States makes a similar argument. PASPA, it contends, does not prohibit a State from enacting a complete repeal because “one would not ordinarily say that private conduct is ‘authorized by law’ simply because the government has not prohibited it.” Brief for United States 17. But the United States claims that “[t]he 2014 Act’s selective and conditional permission to engage in conduct that is generally prohibited certainly qualifies” as an authorization. Ibid. The United States does not argue that PASPA outlaws all partial repeals, but it does not set out any clear rule for distinguishing between partial repeals that constitute the “authorization” of sports gambling and those that are permissible. The most that it is willing to say is that a State could “eliminat[e] prohibitions on sports gambling involving wagers by adults or wagers below a certain dollar threshold.” Id., at 29.

B

In our view, petitioners’ interpretation is correct: When a State completely or partially repeals old laws banning sports gambling, it “authorize[s]” that activity. This is clear when the state-law landscape at the time of PASPA’s enactment is taken into account. At that time, all forms of sports gambling were illegal in the great majority of States, and in that context, the competing definitions offered by the parties lead to the same conclusion. The repeal of a state law banning sports gambling not only “permits” sports gambling (petitioners’ favored definition); it also gives those now free to conduct a sports betting operation the “right or authority to act”; it “empowers” them (respondents’ and the United States’s definition).

The concept of state “authorization” makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State “authorizes” its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authoriza- tion only if the activity in question would otherwise be restricted.[28]

The United States counters that, even if the term “authorize,” standing alone, is interpreted as petitioners claim, PASPA contains additional language that precludes that reading. The provision at issue refers to “authoriz[ation] by law,” §3702(1) (emphasis added), and the parallel provision governing private conduct, §3702(2), applies to conduct done “pursuant to the law . . . of a governmental entity.” The United States maintains that one “would not naturally describe a person conducting a sports-gambling operation that is merely left unregulated as acting ‘pursuant to’ state law.” Brief for United States 18. But one might well say exactly that if the person previously was prohibited from engaging in the activity. (“Now that the State has legalized the sale of marijuana, Joe is able to sell the drug pursuant to state law.”)

The United States also claims to find support for its interpretation in the fact that the authorization ban ap-

plies to all “governmental entities.” It is implausible, the United States submits, to think that Congress “commanded every county, district, and municipality in the Nation to prohibit sports betting.” Ibid. But in making this argument, the United States again ignores the legal landscape at the time of PASPA’s enactment. At that time, sports gambling was generally prohibited by state law, and therefore a State’s political subdivisions were powerless to legalize the activity. But what if a State enacted a law enabling, but not requiring, one or more of its subdivisions to decide whether to authorize sports gambling? Such a state law would not itself authorize sports gambling. The ban on legalization at the local level addresses this problem.

The interpretation adopted by the Third Circuit and advocated by respondents and the United States not only ignores the situation that Congress faced when it enacted PASPA but also leads to results that Congress is most unlikely to have wanted. This is illustrated by the implausible conclusions that all of those favoring alternative interpretations have been forced to reach about the extent to which the provision permits the repeal of laws banning sports gambling.

The Third Circuit could not say which, if any, partial repeals are allowed. 832 F. 3d, at 402. Respondents and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime.

C

The respondents and United States argue that even if there is some doubt about the correctness of their interpretation of the anti-authorization provision, that interpretation should be adopted in order to avoid any anticommandeering problem that would arise if the provision were construed to require States to maintain their laws prohibiting sports gambling. Brief for Respondents 38; Brief for United States 19. They invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. See Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12). The plausibility of the alternative interpretations is debatable, but even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle, as we now explain.

III

A

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. When the original States declared their independence, they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority “to do all . . . Acts and Things which Independent States may of right do.” ¶32. The Constitution limited but did not abolish the sovereign powers of the States, which retained “a residuary and inviolable sovereignty.” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of “dual sovereignty.” Greg- ory v. Ashcroft, 501 U. S. 452, 457 (1991).

The Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty. See, e.g., Art. I, §10. Some grants of power to the Federal Government have been held to impose implicit restrictions on the States. See, e.g., Department of Revenue of Ky. v. Davis, 553 U. S. 328 (2008); American Ins. Assn. v. Garamendi, 539 U. S. 396 (2003). And the Constitution indirectly restricts the States by granting certain legislative powers to Congress, see Art. I, §8, while providing in the Supremacy Clause that federal law is the “supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” Art. VI, cl. 2. This means that when federal and state law conflict, federal law prevails and state law is preempted.

The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, 505 U. S. 144 (1992), which concerned a federal law that required a State, under certain circumstances, either to “take title” to low-level radioactive waste or to “regulat[e] according to the instructions of Congress.” Id., at 175. In enacting this provision, Congress issued orders to either the legislative or executive branch of state government (depending on the branch authorized by state law to take the actions demanded). Either way, the Court held, the provision was unconstitutional because “the Constitution does not empower Congress to subject state governments to this type of instruction.” Id., at 176.

Justice O’Connor’s opinion for the Court traced this rule to the basic structure of government established under the Constitution. The Constitution, she noted, “confers upon Congress the power to regulate individuals, not States.” Id., at 166. In this respect, the Constitution represented a sharp break from the Articles of Confederation. “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.” Id., at 163. Instead, Congress was limited to acting “ ‘only upon the States.’ ” Id., at 162 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)). Alexander Hamilton, among others, saw this as “ ‘[t]he great and radical vice in . . . the existing Confederation.’ ” 505 U. S., at 163 (quoting The Federalist No. 15, at 108). The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which “Congress would exercise its legislative authority directly over individuals rather than over States.” 505 U. S., at 165.

As to what this structure means with regard to Congress’s authority to control state legislatures, New York was clear and emphatic. The opinion recalled that “no Member of the Court ha[d] ever suggested” that even “a particularly strong federal interest” “would enable Congress to command a state government to enact state regulation.” Id., at 178 (emphasis in original). “We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” Id., at 166. “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’ ” Id., at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288 (1981)). “Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.” 505 U. S., at 178.

Five years after New York, the Court applied the same principles to a federal statute requiring state and local law enforcement officers to perform background checks and related tasks in connection with applications for handgun licenses. Printz, 521 U. S. 898. Holding this provision unconstitutional, the Court put the point succinctly: “The Federal Government” may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Id., at 935. This rule applies, Printz held, not only to state officers with policymaking responsibility but also to those assigned more mundane tasks. Id., at 929–930.

B

Our opinions in New York and Printz explained why adherence to the anticommandeering principle is important. Without attempting a complete survey, we mention several reasons that are significant here.

First, the rule serves as “one of the Constitution’s structural protections of liberty.” Printz, supra, at 921. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities.” New York, supra, at 181. “To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.” Ibid. “ ‘[A] healthy balance of power between the States and the Federal Government [reduces] the risk of tyranny and abuse from either front.’ ” Id., at 181–182 (quoting Gregory, 501 U. S., at 458).

Second, the anticommandeering rule promotes political accountability. When Congress itself regulates, the responsibility for the benefits and burdens of the regulation is apparent. Voters who like or dislike the effects of the regulation know who to credit or blame. By contrast, if a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred. See New York, supra, at 168–169; Printz, supra, at 929–930.

Third, the anticommandeering principle prevents Congress from shifting the costs of regulation to the States. If Congress enacts a law and requires enforcement by the Executive Branch, it must appropriate the funds needed to administer the program. It is pressured to weigh the expected benefits of the program against its costs. But if Congress can compel the States to enact and enforce its program, Congress need not engage in any such analysis. See, e.g., E. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1360–1361 (2001).

IV

A

The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.

Neither respondents nor the United States contends that Congress can compel a State to enact legislation, but they say that prohibiting a State from enacting new laws is another matter. See Brief for Respondents 19; Brief for United States 12. Noting that the laws challenged in New York and Printz “told states what they must do instead of what they must not do,” respondents contend that commandeering occurs “only when Congress goes beyond precluding state action and affirmatively commands it.” Brief for Respondents 19 (emphasis deleted).

This distinction is empty. It was a matter of happenstance that the laws challenged in New York and Printz commanded “affirmative” action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.

Here is an illustration. PASPA includes an exemption for States that permitted sports betting at the time of enactment, §3704, but suppose Congress did not adopt such an exemption. Suppose Congress ordered States with legalized sports betting to take the affirmative step of criminalizing that activity and ordered the remaining States to retain their laws prohibiting sports betting. There is no good reason why the former would intrude more deeply on state sovereignty than the latter.

B

Respondents and the United States claim that prior decisions of this Court show that PASPA’s anti-authorization provision is constitutional, but they misread those cases. In none of them did we uphold the constitutionality of a federal statute that commanded state legislatures to enact or refrain from enacting state law.

In South Carolina v. Baker, 485 U. S. 505 (1988), the federal law simply altered the federal tax treatment of private investments. Specifically, it removed the federal tax exemption for interest earned on state and local bonds unless they were issued in registered rather than bearer form. This law did not order the States to enact or maintain any existing laws. Rather, it simply had the indirect effect of pressuring States to increase the rate paid on their bearer bonds in order to make them competitive with other bonds paying taxable interest.

In any event, even if we assume that removal of the tax exemption was tantamount to an outright prohibition of the issuance of bearer bonds, see id., at 511, the law would simply treat state bonds the same as private bonds. The anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.

That principle formed the basis for the Court’s decision in Reno v. Condon, 528 U. S. 141 (2000), which concerned a federal law restricting the disclosure and dissemination of personal information provided in applications for driver’s licenses. The law applied equally to state and private actors. It did not regulate the States’ sovereign authority to “regulate their own citizens.” Id., at 151.

In Hodel, 452 U. S., at 289, the federal law, which involved what has been called “cooperative federalism,” by no means commandeered the state legislative process. Congress enacted a statute that comprehensively regulated surface coal mining and offered States the choice of “either implement[ing]” the federal program “or else yield[ing] to a federally administered regulatory program.” Ibid. Thus, the federal law allowed but did not require the States to implement a federal program. “States [were] not compelled to enforce the [federal] standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever.” Id., at 288. If a State did not “wish” to bear the burden of regulation, the “full regulatory burden [would] be borne by the Federal Government.” Ibid.

Finally, in FERC v. Mississippi, 456 U. S. 742 (1982), the federal law in question issued no command to a state legislature. Enacted to restrain the consumption of oil and natural gas, the federal law directed state utility regulatory commissions to consider, but not necessarily to adopt, federal “ ‘rate design’ and regulatory standards.” Id., at 746. The Court held that this modest requirement did not infringe the States’ sovereign powers, but the Court warned that it had “never . . . sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” Id., at 761–762. FERC was decided well before our decisions in New York and Printz, and PASPA, unlike the law in FERC, does far more than require States to consider Congress’s preference that the legalization of sports gambling be halted. See Printz, 521 U. S., at 929 (distinguishing FERC ).

In sum, none of the prior decisions on which respondents and the United States rely involved federal laws that commandeered the state legislative process. None concerned laws that directed the States either to enact or to refrain from enacting a regulation of the conduct of activities occurring within their borders. Therefore, none of these precedents supports the constitutionality of the PASPA provision at issue here.

V

Respondents and the United States defend the anti-authorization prohibition on the ground that it constitutes a valid preemption provision, but it is no such thing. Preemption is based on the Supremacy Clause, and that Clause is not an independent grant of legislative power to Congress. Instead, it simply provides “a rule of decision.” Armstrong v. Exceptional Child Center, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3). It specifies that federal law is supreme in case of a conflict with state law. Therefore, in order for the PASPA provision to preempt state law, it must satisfy two requirements. First, it must represent the exercise of a power conferred on Congress by the Constitution; pointing to the Supremacy Clause will not do. Second, since the Constitution “confers upon Congress the power to regulate individuals, not States,” New York, 505 U. S., at 166, the PASPA provision at issue must be best read as one that regulates private actors.

Our cases have identified three different types of preemption—“conflict,” “express,” and “field,” see English v. General Elec. Co., 496 U. S. 72, 78–79 (1990)—but all of them work in the same way: Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.

This mechanism is shown most clearly in cases involving “conflict preemption.” A recent example is Mutual Pharmaceutical Co. v. Bartlett, 570 U. S. 472 (2013). In that case, a federal law enacted under the Commerce Clause regulated manufacturers of generic drugs, prohibiting them from altering either the composition or labeling approved by the Food and Drug Administration. A State’s tort law, however, effectively required a manufacturer to supplement the warnings included in the FDA-approved label. Id., at 480–486. We held that the state law was preempted because it imposed a duty that was inconsistent—i.e., in conflict—with federal law. Id., at 493.

“Express preemption” operates in essentially the same way, but this is often obscured by the language used by Congress in framing preemption provisions. The provision at issue in Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992), is illustrative. The Airline Deregulation Act of 1978 lifted prior federal regulations of airlines, and “[t]o ensure that the States would not undo federal deregulation with regulation of their own,” id., at 378, the Act provided that “no State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any [covered] air car- rier.” 49 U. S. C. App. §1305(a)(1) (1988 ed.).

This language might appear to operate directly on the States, but it is a mistake to be confused by the way in which a preemption provision is phrased. As we recently explained, “we do not require Congress to employ a particular linguistic formulation when preempting state law.” Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. ___, ___–___ (2017) (slip op., at 10–11). And if we look beyond the phrasing employed in the Airline Deregulation Act’s preemption provision, it is clear that this provision operates just like any other federal law with preemptive effect. It confers on private entities (i.e., covered carriers) a federal right to engage in certain conduct subject only to certain (federal) constraints.

“Field preemption” operates in the same way. Field preemption occurs when federal law occupies a “field” of regulation “so comprehensively that it has left no room for supplementary state legislation.” R. J. Reynolds Tobacco Co. v. Durham County, 479 U. S. 130, 140 (1986). In describing field preemption, we have sometimes used the same sort of shorthand employed by Congress in express preemption provisions. See, e.g., Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___ (2015) (slip op., at 2) (“Congress has forbidden the State to take action in the field that the federal statute pre-empts”). But in substance, field preemption does not involve congressional commands to the States. Instead, like all other forms of preemption, it concerns a clash between a constitutional exercise of Congress’s legislative power and conflicting state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372, n. 6 (2000).

The Court’s decision in Arizona v. United States, 567 U. S. 387 (2012), shows how this works. Noting that federal statutes “provide a full set of standards governing alien registration,” we concluded that these laws “reflect[ ] a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” Id., at 401. What this means is that the federal registration provisions not only impose federal registration obligations on aliens but also confer a federal right to be free from any other registration requirements.

In sum, regardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.

Once this is understood, it is clear that the PASPA provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. It certainly does not confer any federal rights on private actors interested in conducting sports gambling operations. (It does not give them a federal right to engage in sports gambling.) Nor does it impose any federal restrictions on private actors. If a private citizen or company started a sports gambling operation, either with or without state authorization, §3702(1) would not be violated and would not provide any ground for a civil action by the Attorney General or any other party. Thus, there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States. And that is exactly what the anticommandeering rule does not allow.

In so holding, we recognize that a closely related provision of PASPA, §3702(2), does restrict private conduct, but that is not the provision challenged by petitioners. In Part VI–B–2, infra, we consider whether §3702(2) is severable from the provision directly at issue in these cases.

VI

Having concluded that §3702(1) violates the anti-commandeering doctrine, we consider two additional questions: first, whether the decision below should be affirmed on an alternative ground and, second, whether our decision regarding the anti-authorization provision dooms the remainder of PASPA.

A

Respondents and the United States argue that, even if we disagree with the Third Circuit’s decision regarding the constitutionality of the anti-authorization provision, we should nevertheless affirm based on PASPA’s prohibition of state “licens[ing]” of sports gambling. Brief for Respondents 43, n. 10; Brief for United States 34–35. Although New Jersey’s 2014 Act does not expressly provide for the licensing of sports gambling operations, respondents and the United States contend that the law effectively achieves that result because the only entities that it authorizes to engage in that activity, i.e., casinos and racetracks, are already required to be licensed. Ibid.

We need not decide whether the 2014 Act violates PASPA’s prohibition of state “licens[ing]” because that provision suffers from the same defect as the prohibition of state authorization. It issues a direct order to the state legislature.[29] Just as Congress lacks the power to order a state legislature not to enact a law authorizing sports gambling, it may not order a state legislature to refrain from enacting a law licensing sports gambling.[30]

B

We therefore turn to the question whether, as petitioners maintain, our decision regarding PASPA’s prohibition of the authorization and licensing of sports gambling operations dooms the remainder of the Act. In order for other PASPA provisions to fall, it must be “evident that

[Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.” Alaska Airlines, Inc. v. Brock,  480 U. S. 678, 684 (1987) (internal quotation marks omitted). In conducting that inquiry, we ask whether the law remains “fully operative” without the invalid provisions, Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 509 (2010) (internal quotation marks omitted), but “we cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole,” Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 362 (1935). We will consider each of the provisions at issue separately.

1

Under 28 U. S. C. §3702(1), States are prohibited from “operat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes. If the provisions prohibiting state authorization and licensing are stricken but the prohibition on state “operat[ion]” is left standing, the result would be a scheme sharply different from what Congress contemplated when PASPA was enacted. At that time, Congress knew that New Jersey was considering the legalization of sports gambling in the privately owned Atlantic City casinos and that other States were thinking about the institution of state-run sports lotteries. PASPA addressed both of these potential developments. It gave New Jersey one year to legalize sports gambling in Atlantic City but otherwise banned the authorization of sports gambling in casinos, and it likewise prohibited the spread of state-run lotteries. If Congress had known that States would be free to authorize sports gambling in privately owned casinos, would it have nevertheless wanted to prevent States from running sports lotteries?

That seems most unlikely. State-run lotteries, which sold tickets costing only a few dollars, were thought more benign than other forms of gambling, and that is why they had been adopted in many States. Casino gambling, on the other hand, was generally regarded as far more dangerous. A gambler at a casino can easily incur heavy losses, and the legalization of privately owned casinos was known to create the threat of infiltration by organized crime, as Nevada’s early experience had notoriously shown.[31] To the Congress that adopted PASPA, legalizing sports gambling in privately owned casinos while prohibiting state-run sports lotteries would have seemed exactly backwards.

Prohibiting the States from engaging in commercial activities that are permitted for private parties would also have been unusual, and it is unclear what might justify such disparate treatment. Respondents suggest that Congress wanted to prevent States from taking steps that the public might interpret as the endorsement of sports gambling, Brief for Respondents 39, but we have never held that the Constitution permits the Federal Government to prevent a state legislature from expressing its views on subjects of public importance. For these reasons, we do not think that the provision barring state operation of sports gambling can be severed.

We reach the same conclusion with respect to the provisions prohibiting state “sponsor[ship]” and “promot[ion].” The line between authorization, licensing, and operation, on the one hand, and sponsorship or promotion, on the other, is too uncertain. It is unlikely that Congress would have wanted to prohibit such an ill-defined category of state conduct.

2

Nor do we think that Congress would have wanted to

sever the PASPA provisions that prohibit a private actor from “sponsor[ing],” “operat[ing],” or “promot[ing]” sports gambling schemes “pursuant to” state law. §3702(2). These provisions were obviously meant to work together with the provisions in §3702(1) that impose similar restrictions on governmental entities. If Congress had known that the latter provisions would fall, we do not think it would have wanted the former to stand alone.

The present cases illustrate exactly how Congress must have intended §3702(1) and §3702(2) to work. If a State attempted to authorize particular private entities to engage in sports gambling, the State could be sued under §3702(1), and the private entity could be sued at the same time under §3702(2). The two sets of provisions were meant to be deployed in tandem to stop what PASPA aimed to prevent: state legalization of sports gambling. But if, as we now hold, Congress lacks the authority to prohibit a State from legalizing sports gambling, the prohibition of private conduct under §3702(2) ceases to implement any coherent federal policy.

Under §3702(2), private conduct violates federal law only if it is permitted by state law. That strange rule is exactly the opposite of the general federal approach to gambling. Under 18 U. S. C. §1955, operating a gambling business violates federal law only if that conduct is illegal under state or local law. Similarly, 18 U. S. C. §1953, which criminalizes the interstate transmission of wagering paraphernalia, and 18 U. S. C. §1084, which outlaws the interstate transmission of information that assists in the placing of a bet on a sporting event, apply only if the underlying gambling is illegal under state law. See also 18 U. S. C. §1952 (making it illegal to travel in interstate commerce to further a gambling business that is illegal under applicable state law).

These provisions implement a coherent federal policy: They respect the policy choices of the people of each State on the controversial issue of gambling. By contrast, if §3702(2) is severed from §3702(1), it implements a perverse policy that undermines whatever policy is favored by the people of a State. If the people of a State support the legalization of sports gambling, federal law would make the activity illegal. But if a State outlaws sports gambling, that activity would be lawful under §3702(2). We do not think that Congress ever contemplated that such a weird result would come to pass.

PASPA’s enforcement scheme reinforces this conclusion. PASPA authorizes civil suits by the Attorney General and sports organizations but does not make sports gambling a federal crime or provide civil penalties for violations. This enforcement scheme is suited for challenging state authorization or licensing or a small number of private operations, but the scheme would break down if a State broadly decriminalized sports gambling. It is revealing that the Congressional Budget Office estimated that PASPA would impose “no cost” on the Federal Government, see S. Rep. No. 102–248, p. 10 (1991), a conclusion that would certainly be incorrect if enforcement required a multiplicity of civil suits and applications to hold illegal bookies and other private parties in contempt.[32]

3

The remaining question that we must decide is whether the provisions of PASPA prohibiting the “advertis[ing]” of sports gambling are severable. See §§3702(1)–(2). If these provisions were allowed to stand, federal law would forbid the advertising of an activity that is legal under both

federal and state law, and that is something that Congress has rarely done. For example, the advertising of cigarettes is heavily regulated but not totally banned. See Federal Cigarette Labeling and Advertising Act, 79Stat. 282; Family Smoking Prevention and Tobacco Control Act, §§201–204, 123Stat. 1842–1848.

It is true that at one time federal law prohibited the use of the mail or interstate commerce to distribute advertisements of lotteries that were permitted under state law, but that is no longer the case. See United States v. Edge Broadcasting Co., 509 U. S. 418, 421–423 (1993). In 1975, Congress passed a new statute, codified at 18 U. S. C. §1307, that explicitly exempts print advertisements regarding a lottery lawfully conducted by States, and in Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 176 (1999), we held that the First Amendment protects the right of a radio or television station in a State with a lottery to run such advertisements. In light of these developments, we do not think that Congress would want the advertising provisions to stand if the remainder of PASPA must fall.

For these reasons, we hold that no provision of PASPA is severable from the provision directly at issue in these cases.

*  *  *

The legalization of sports gambling is a controversial subject. 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.

The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens, New York, 505 U. S., at 166. The Constitution gives Congress no such power.

The judgment of the Third Circuit is reversed.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 16–476 and 16–477

_________________

PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, et al., PETITIONERS

16–476v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER

16–477v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

on writs of certiorari to the united states court of appeals for the third circuit

[May 14, 2018]

Justice Thomas, concurring.

I join the Court’s opinion in its entirety. I write separately, however, to express my growing discomfort with our modern severability precedents.

I agree with the Court that the Professional and Amateur Sports Protection Act (PASPA) exceeds Congress’ Article I authority to the extent it prohibits New Jersey from “authoriz[ing]” or “licens[ing]” sports gambling, 28 U. S. C. §3702(1). Unlike the dissent, I do “doubt” that Congress can prohibit sports gambling that does not cross state lines. Post, at 2 (opinion of Ginsburg, J.); see License Tax Cases, 5 Wall. 462, 470–471 (1867) (holding that Congress has “no power” to regulate “the internal commerce or domestic trade of the States,” including the intrastate sale of lottery tickets); United States v. Lopez, 514 U. S. 549, 587–601 (1995) (Thomas, J., concurring) (documenting why the Commerce Clause does not permit Congress to regulate purely local activities that have a substantial effect on interstate commerce). But even assuming the Commerce Clause allows Congress to prohibit intrastate sports gambling “directly,” it “does not authorize Congress to regulate state governments’ regulation of interstate commerce.” New York v. United States, 505 U. S. 144, 166 (1992). The Necessary and Proper Clause does not give Congress this power either, as a law is not “proper” if it “subvert[s] basic principles of federalism and dual sovereignty.” Gonzales v. Raich, 545 U. S. 1, 65 (2005) (Thomas, J., dissenting). Commandeering the States, as PASPA does, subverts those principles. See Printz v. United States, 521 U. S. 898, 923–924 (1997).

Because PASPA is at least partially unconstitutional, our precedents instruct us to determine “which portions of the . . . statute we must sever and excise.” United States v. Booker, 543 U. S. 220, 258 (2005) (emphasis deleted). The Court must make this severability determination by asking a counterfactual question: “ ‘Would Congress still have passed’ the valid sections ‘had it known’ about the constitutional invalidity of the other portions of the statute?” Id., at 246 (quoting Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plurality opinion)). I join the Court’s opinion because it gives the best answer it can to this question, and no party has asked us to apply a different test. But in a future case, we should take another look at our severability precedents.

Those precedents appear to be in tension with traditional limits on judicial authority. Early American courts did not have a severability doctrine. See Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010) (Walsh). They recognized that the judicial power is, fundamentally, the power to render judgments in individual cases. See id., at 755; Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815 (2008). Judicial review was a byproduct of that process. See generally P. Hamburger, Law and Judicial Duty (2008); Prakash & Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887 (2003). As Chief Justice Marshall famously explained, “[i]t is emphatically the province and duty of the judicial department to say what the law is” because “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If a plaintiff relies on a statute but a defendant argues that the statute conflicts with the Constitution, then courts must resolve that dispute and, if they agree with the defendant, follow the higher law of the Constitution. See id., at 177–178; The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Thus, when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them. See Walsh 755–766. “[T]here was no ‘next step’ in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder.” Id., at 777.

Despite this historical practice, the Court’s modern cases treat the severability doctrine as a “remedy” for constitutional violations and ask which provisions of the statute must be “excised.” See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006); Booker, supra, at 245; Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 686 (1987). This language cannot be taken literally. Invalidating a statute is not a “remedy,” like an injunction, a declaration, or damages. See Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 82–88 (2014) (Harrison). Remedies “operate with respect to specific parties,” not “on legal rules in the abstract.” Id., at 85; see also Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (explaining that the power “to review and annul acts of Congress” is “little more than the negative power to disregard an unconstitutional enactment” and that “the court enjoins . . . not the execution of the statute, but the acts of the official”). And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22–23 (1937) (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute”); Harrison 82 (“[C]ourts do not make [nonseverable] provisions inoperative . . . . Invalidation by courts is a figure of speech”); Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018) (manuscript, at 4) (“The federal courts have no authority to erase a duly enacted law from the statute books”), online at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3158038 (as last visited May 11, 2018).

Because courts cannot take a blue pencil to statutes, the severability doctrine must be an exercise in statutory interpretation. In other words, the severability doctrine has courts decide how a statute operates once they conclude that part of it cannot be constitutionally enforced. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1333–1334 (2000); Harrison 88. But even under this view, the severability doctrine is still dubious for at least two reasons.

First, the severability doctrine does not follow basic principles of statutory interpretation. Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make “a nebulous inquiry into hypothetical congressional intent.” Booker, supra, at 320, n. 7 (Thomas, J., dissenting in part). It requires judges to determine what Congress would have intended had it known that part of its statute was unconstitutional.[1] But it seems unlikely that the enacting Congress had any intent on this question; Congress typically does not pass statutes with the expectation that some part will later be deemed unconstitutional. See Walsh 740–741; Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76, 98 (1937) (Stern). Without any actual evidence of intent, the severability doctrine invites courts to rely on their own views about what the best statute would be. See Walsh 752–753; Stern 112–113. More fundamentally, even if courts could discern Congress’ hypothetical intentions, intentions do not count unless they are enshrined in a text that makes it through the constitutional processes of bicameralism and presentment. See Wyeth v. Levine, 555 U. S. 555, 586–588 (2009) (Thomas, J., concurring in judgment). Because we have “ ‘a Government of laws, not of men,’ ” we are governed by “legislated text,” not “legislators’ intentions”—and especially not legislators’ hypothetical intentions. Zuni Public School Dist. No. 89 v. Department of Education, 550 U. S. 81, 119 (2007) (Scalia, J., dissenting). Yet hypothetical intent is exactly what the severability doctrine turns on, at least when Congress has not expressed its fallback position in the text.

Second, the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions. See Stern 77; Lea, Situational Severability, 103 Va. L. Rev. 735, 788–803 (2017) (Lea). If one provision of a statute is deemed unconstitutional, the severability doctrine places every other provision at risk of being declared nonseverable and thus inoperative; our precedents do not ask whether the plaintiff has standing to challenge those other provisions. See National Federation of Independent Business v. Sebelius, 567 U. S. 519, 696–697 (2012) (joint dissent) (citing, as an example, Williams v. Standard Oil Co. of La., 278 U. S. 235, 242–244 (1929)). True, the plaintiff had standing to challenge the unconstitutional part of the statute. But the severability doctrine comes into play only after the court has resolved that issue—typically the only live controversy between the parties. In every other context, a plaintiff must demonstrate standing for each part of the statute that he wants to challenge. See Lea 789, 751, and nn. 79–80 (citing, as examples, Davis v. Federal Election Comm’n, 554 U. S. 724, 733–734 (2008); DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 346, 350–353 (2006)). The severability doctrine is thus an unexplained exception to the normal rules of standing, as well as the separation-of-powers principles that those rules protect. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 101 (1998).

In sum, our modern severability precedents are in tension with longstanding limits on the judicial power. And, though no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 16–476 and 16–477

_________________

PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, et al., PETITIONERS

16–476v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER

16–477v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.

on writs of certiorari to the united states court of appeals for the third circuit

[May 14, 2018]

Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer joins in part, dissenting.

The petition for certiorari filed by the Governor of New Jersey invited the Court to consider a sole question: “Does a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention of New York v. United States, 505 U. S. 144 (1992)? ” Pet. for Cert. in No. 16–476, p. i.

Assuming, arguendo, a “yes” answer to that question, there would be no cause to deploy a wrecking ball destroying the Professional and Amateur Sports Protection Act (PASPA) in its entirety, as the Court does today. Leaving out the alleged infirmity, i.e., “commandeering” state regulatory action by prohibiting the States from “authoriz[ing]” and “licens[ing]” sports-gambling schemes, 28 U. S. C. §3702(1), two federal edicts should remain intact. First, PASPA bans States themselves (or their agencies) from “sponsor[ing], operat[ing], advertis[ing], [or] promot[ing]” sports-gambling schemes. Ibid. Second, PASPA stops private parties from “sponsor[ing], operat[ing], advertis[ing], or promot[ing]” sports-gambling schemes if state law authorizes them to do so. §3702(2).[1] Nothing in these §3702(1) and §3702(2) prohibitions commands States to do anything other than desist from conduct federal law proscribes.[2] Nor is there any doubt that Congress has power to regulate gambling on a nationwide basis, authority Congress exercised in PASPA. See Gonzales v. Raich, 545 U. S. 1, 17 (2005) (“Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”).

Surely, the accountability concern that gave birth to the anticommandeering doctrine is not implicated in any federal proscription other than the bans on States’ authorizing and licensing sports-gambling schemes. The concern triggering the doctrine arises only “where the Federal Government compels States to regulate” or to enforce federal law, thereby creating the appearance that state officials are responsible for policies Congress forced them to enact. New York v. United States, 505 U. S. 144, 168 (1992). If States themselves and private parties may not operate sports-gambling schemes, responsibility for the proscriptions is hardly blurred. It cannot be maintained credibly that state officials have anything to do with the restraints. Unmistakably, the foreclosure of sports-gambling schemes, whether state run or privately oper- ated, is chargeable to congressional, not state, legislative action.

When a statute reveals a constitutional flaw, the Court ordinarily engages in a salvage rather than a demolition operation: It “limit[s] the solution [to] severing any problematic portions while leaving the remainder intact.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 508 (2010) (internal quotation marks omitted). The relevant question is whether the Legislature would have wanted unproblematic aspects of the legislation to survive or would want them to fall along with the infirmity.[3] As the Court stated in New York, “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, . . . the invalid part may be dropped if what is left is fully operative as a law.” 505 U. S., at 186 (internal quotation marks omitted). Here, it is scarcely arguable that Congress “would have preferred no statute at all,” Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 10), over one that simply stops States and private parties alike from operating sports-gambling schemes.

The Court wields an ax to cut down §3702 instead of using a scalpel to trim the statute. It does so apparently in the mistaken assumption that private sports-gambling schemes would become lawful in the wake of its decision. In particular, the Court holds that the prohibition on state “operat[ion]” of sports-gambling schemes cannot survive, because it does not believe Congress would have “wanted to prevent States from running sports lotteries” “had [it] known that States would be free to authorize sports gambling in privately owned casinos.” Ante, at 26. In so reasoning, the Court shutters §3702(2), under which private parties are prohibited from operating sports-gambling schemes precisely when state law authorizes them to do so.[4]

This plain error pervasively infects the Court’s severability analysis. The Court strikes Congress’ ban on state “sponsor[ship]” and “promot[ion]” of sports-gambling schemes because it has (mistakenly) struck Congress’ prohibition on state “operat[ion]” of such schemes. See ante, at 27. It strikes Congress’ prohibitions on private “sponsor[ship],” “operat[ion],” and “promot[ion]” of sports-gambling schemes because it has (mistakenly) struck those same prohibitions on the States. See ante, at 27–28. And it strikes Congress’ prohibition on “advertis[ing]” sports-gambling schemes because it has struck everything else. See ante, at 29–30.

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In PASPA, shorn of the prohibition on modifying or repealing state law, Congress permissibly exercised its authority to regulate commerce by instructing States and private parties to refrain from operating sports-gambling schemes. On no rational ground can it be concluded that Congress would have preferred no statute at all if it could not prohibit States from authorizing or licensing such schemes. Deleting the alleged “commandeering” directions would free the statute to accomplish just what Congress legitimately sought to achieve: stopping sports-gambling regimes while making it clear that the stoppage is attributable to federal, not state, action. I therefore dissent from the Court’s determination to destroy PASPA rather than salvage the statute.