Commentary, Law

Jim Gray: The Constitution Doesn’t Allows Congress to Preempt State Sports Gambling Laws

Should we regulate and control gambling, or should we continue with most of it being illegal?

Today the federal Professional Amateur Sports Protection Act prohibits any states – except Oregon, Delaware, and Montana, for their sports lotteries, and Nevada for its licensed sports betting pools – from regulating or controlling gambling.

Maybe the federal law was passed with good intentions, because the government was logically concerned by the prospect of athletic competitors being bribed to “throw” their matches. But the law of unintended consequences once again prevails.

Not only has this law ushered in an enormous black market, it actually has made it more difficult to detect and prosecute corruption.

How so? Because illegal betting makes it much more difficult to detect betting patterns, which increases the ability to fix athletic contests. And now eSports gambling is upon us, where people bet on online video game competitions. Already one player has been found to have made large amounts of money by betting against himself and then throwing his match.

As of now, it is estimated that this business garners about $700 million in profits, which is predicted to explode to $1.5 billion by 2020. People have always gambled: Always have and always will. So the only practical question is: Should gambling be controlled under the law, or by people outside of the law?

Going back to our roots, there is nothing in our Constitution that allows the federal government to pre-empt any state from governing gambling within its own boundaries. In addition, all studies, as well as common sense, show that fans who bet on a sports event are more engaged if they have placed a bet on the outcome.

As a result, betting is rampant and normal virtually everywhere, and illegal betting has pushed tens of billions of dollars into the shadow economy. All of this is uncontrolled and untaxed. Bringing gambling back under the law would take away lots of money from the criminal element, provide tax money for local governments, and allow investigators the heightened ability to detect fraud in sports.

The Liberty of allowing adults to engage in legal gambling would once again provide greater benefits to society at large than government restrictions and prohibitions.

(Photo of odds board at a race and sports book in Las Vegas by Baishampayan Ghos used with permission.)

Judge James P. Gray (Ret.) was a judge on the Superior Court of Orange County, California for 25 years, and was the running mate of Gary Johnson in the 2012 presidential contest, as well as the Libertarian Party’s 2004 candidate for the United States Senate in California. The author of multiple books and a play, he is a critic of current American drug laws.

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