The de-federalization gamble: a workable anti-commandeering framework for states seeking to legalize certain vice areas

Abstract

The states and the central government have endured over two centuries of a tenuous power-sharing arrangement. This debate has traditionally deferred to the national government and left little constitutional avenues of fiscal growth for the states. The anti-commandeering principle, although a relatively new pronouncement from the United States Supreme Court, could reshape the balance of power between states and the national government in the case of Murphy v. NCAA (formerly, Christie v. NCAA). This is especially true in states’ current attempts to legalize historically proscribed vice areas. The work analyzes the history of federalism struggles in the Supreme Court’s jurisprudence up through the seminal anti-commandeering cases of New York v. United States and Printz v. United States , then overlays these cases’ reasoning with the anti-coercion (conditional spending) principle before thoroughly presenting the regulation of vice, historically and through the federalism prism, using gambling regulation as an archetype. It lastly theorizes that vice domains, some of which have the potential for increased revenue for states, can be legalized, in a constitutionally permissible sense, within the confines of both anti-commandeering and the national government’s Commerce power. It presents this theory by explaining the rule that can be crafted from the Murphy case amid the recent calls to legalize various areas of gambling – sports wagering and daily fantasy sports. It concludes reiterating the framework, focusing on traditional notions of dual federalism and acquiescence to state action through lack of federal enforcement, as buttressing factors to this new era of federalism.