*Jake Roth

The legalization of marijuana and gambling have similar backgrounds in American history. Beginning in colonial times, marijuana was used in a variety of ways, including as a fiber and a medicine.[1] But as the political landscape started to shift, so did Americans’ outlook on marijuana.[2] In 1937, Congress passed the Marijuana Tax Act, which essentially prohibited the possession of marijuana throughout the United States.[3] This prohibition created a black market for marijuana that persists to this day.[4] But between then and now, the American public and the federal government have gone back and forth, from approval to disapproval of marijuana. Today, marijuana is federally prohibited,[5] but the federal government has allowed states to legalize marijuana if done in a way that furthers the goals of the federal prohibition.[6]

Like marijuana, gambling has been a part of American history since colonial times. Private and state-run lotteries helped fund various public-works projects throughout early American history.[7] But, as public sentiment turned against lotteries, they (and other forms of gambling) were outlawed by the 1870s.[8] Then, in the face of economic depression, the state of Nevada passed a bill allowing casinos to operate within the state.[9] Nevada allowed all types of gambling, from casino games to bingo to sports gambling. Hoping to cash in on gambling profits, New Jersey passed legislation allowing casinos to operate in Atlantic City.[10] These were the major gambling hubs in the United States until the late 1980s. In 1987, the Supreme Court decided California v. Cabazon Band of Mission Indians, which allowed Native American tribes to build and operate casinos on their lands.[11]

Sports gambling was then completely outlawed when Congress enacted the Professional and Amateur Sports Protection Act (“PASPA”) in 1992, which created a massive black market.[12] After New Jersey passed a law attempting to repeal its own prohibition of sports gambling, the National Collegiate Athletic Association and professional sports leagues sued.[13] The Supreme Court ruled in favor of New Jersey, holding that PASPA unconstitutionally prohibited states from authorizing sports gambling,[14] leaving the states to deal with the black market issue on their own.

The similar legal histories of marijuana and sports gambling allow for a parallel to be drawn between them to deal with the black market created by prohibition. It will be interesting to see if any states legalizing sports gambling will take inspiration from any of the states that have already legalized marijuana in some form. It would be prudent for states to do so, and maybe even work with the federal government as well. The idea of cooperative federalism—the federal government setting goals that the states can reach in a way that works for each individual state—would be a good starting point in regulating the new sports gambling industry. By engaging in cooperative federalism, the federal government could outline what it would like to see in terms of black-market and related crime reduction. The states could then implement the system the federal government lays out, or they could come up with their own systems that comport with the federal goals. This system would allow the entire country to be on the same page about the goals of legalization and regulation of sports gambling and would expedite the process of finding the most effective way to reach those goals.

* J.D Candidate, 2020, Florida International University College of Law

[1] See Mark Thornton, The Economics of Prohibition 68 (1991).

[2] Eric Schlosser, Reefer Madness: Sex, Drugs, and Cheap Labor in the American Black Market 19 (2003).

[3] Id. at 20.

[4] American Vice: Black Market Marijuana, CNBC (Mar. 24, 2017, 4:19 PM), https://www.cnbc.com/2017/03/24/american-vice-black-market-marijuana–facts-and-figures.html.

[5] See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (codified as amended at 21 U.S.C. § 812 (2012)).

[6] See Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, Office of the Deputy Att’y Gen., to All U.S. Att’ys (Aug. 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.

[7] See Raymond D. Sauer, The Political Economy of Gambling Regulation, 22 Managerial & Decision Econ. 5, 8 (2001).

[8] Nat’l Gambling Impact & Policy Comm’n, 106th Cong., National Impact Study Commission: Final Report 2–1 (1999) [hereinafter Gambling Final Report].

[9] See Ed Koch, Bill That Transformed a City, Las Vegas Sun (May 15, 2008, 3:00 AM), https://lasvegassun.com/news/2008/may/15/bill-transformed-city/.

[10] Legalized Casino Gaming in the United States: The Economic and Social Impact 5 (Cathy H. C. Hsu ed., 1999).

[11] Gambling Final Report, supra note 8, at 2–9.

[12] Brief of the American Gaming Association as Amicus Curiae in Support of Petitioners at 13, Christie v. NCAA, 137 S. Ct. 2327 (2017) (Nos. 16–476 & 16–477), 2017 WL 3948436, at * 13.

[13] See NCAA v. Christie, 61 F. Supp. 3d 488 (D.N.J. 2014); NCAA v. Governor of New Jersey, 832 F.3d 389 (2016); Murphy v. NCAA, 138 S. Ct. 1641 (2018).

[14] See Murphy, 138 S. Ct. 1641.