The Kansas City Chiefs were not the only winners in Super Bowl LVII last month at State Farm Stadium in Glendale, Arizona. The American Football Conference (AFC)Chiefs defeated the National Football Conference (NFC) champion Philadelphia Eagles by the close score of 38–35 to become the champion of the National Football League (NFL) for the 2022 season. A record 50 million Americans were estimated to have wagered a record $16 billion on the Super Bowl. Those who bet on the Chiefs shared in their victory; those who bet on the Eagles, partook of their loss.
Just five years ago, betting on live sporting events was illegal in most of the United States. Just four states allowed forms of sports gambling. However, in the 2018 Supreme Court cases of Murphy v. NCAA and N.J. Thoroughbred Horsemen’s Assoc. v. NCAA, the court struck down the Professional and Amateur Sports Protection Act (PASPA) of 1992 that made it unlawful for a state or its subdivisions “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, and for “a person to sponsor, operate, advertise, or promote” those same gambling schemes if done “pursuant to the law or compact of a governmental entity.” Wrote Justice Samuel Alito:
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.
Regardless of how one feels about gambling in general or sports betting in particular, it is clear that the Supreme Court made the right decision. It is a victory for federalism, the Constitution, and the Tenth Amendment.
According to the American Gaming Association, sports betting is legally offered through retail and/or online sportsbooks in 33 states and Washington, D.C. It is legal in three additional states, but not yet operational. There is active legislation or ballot initiatives to legalize sports betting in another nine states. This leaves only five states (Alabama, Alaska, California, Idaho, and Utah) where residents will never be able to legally bet on sporting events unless the laws change in their states.
American Gaming Association president and CEO Bill Miller maintains that “the Super Bowl serves to highlight the benefits of legal sports betting: bettors are transitioning to the protections of the regulated market, leagues and sports media are seeing increased engagement, and legal operators are driving needed tax revenue to states across the country.”
According to The Hill, “In the first 11 months of 2022, Americans bet $83 billion on sports and delivered $6.6 billion to betting firms,” a figure “15 times what the sports gambling industry reaped in 2018.”
Some people are not too happy about the explosion in sports gambling in the United States. And it’s not just religious conservatives who view all gambling as immoral and a sin.
Lia Nower, a professor and director of the Center for Gambling Studies at Rutgers University, told The Hill: “Gambling is a very different addiction from drugs or alcohol. If I’m drunk or high, at some point my family is going to figure it out. With gambling, I can be sitting with my kids, watching cartoons, and gambling away my house, my car, everything I own, on my mobile phone. How would you know?”
Gambling is viewed by some as a “public health” issue. We know instinctively what that means: more government intervention in society. This is why people like Nower lament that “there is no federal presence at all” when it comes to sports gambling, like when the federal government regulates “alcohol, tobacco and drugs.” She maintains that “the biggest problem” is that “oversight of the booming sports-betting industry has been mostly left to states.”
But if sports gambling is to be regulated at all, that is exactly where it should be. Likewise for all forms of gambling. As James Madison explained in Federalist No. 45: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”
In a free society, there would be not only no federal laws regarding gambling but also no state or local laws regarding gambling.
The libertarian position on gambling is a simple one. Although gambling—whether online, at a casino, or in an office pool—may be wasteful, addictive, ruinous, and destructive; and although gambling—whether on sports, cards, or dice—may be a bad habit, a vice, an immoral act, and a sin, it is not the job of government at any level to discourage or prohibit anyone from doing it.
As former Republican congressman Ron Paul has well said: “Those with moral objections to gambling have the right to try to persuade their fellow citizens to not gamble. What they do not have the right to do is use government force to stop people from engaging in activities, like gambling, that do not involve force or fraud.”
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