Ginsburg, Sotomayor, and Breyer confirm, again, that they vehemently oppose liberty

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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
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.

GINSBURG, J., dissenting
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
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1PASPA was not designed to eliminate any and all sports gambling.
The statute targets sports-gambling schemes, i.e., organized markets
for sports gambling, whether operated by a State or by a third party
under state authorization. 2 In lieu of a flat ban, PASPA prohibits third parties from operating
sports-gambling schemes only if state law permits them to do so. If
a state ban is in place, of course, there is no need for a f
Cite as: 584 U. S. ____ (2018) 3
GINSBURG, J., dissenting
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 sportsgambling
schemes, whether state run or privately operated,
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.
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3Notably, in the two decisions marking out and applying the anticommandeering
doctrine to invalidate federal law, the Court invalidated
only the offending provision, not the entire statute. New York v.
United States, 505 U. S. 144, 186–187 (1992); Printz v. United States,
521 U. S. 898, 935 (1997).
4 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.

GINSBURG, J., dissenting
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 sportsgambling
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.
* * *
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
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4As earlier indicated, see supra, at 2, direct federal regulation of
sports-gambling schemes nationwide, including private-party schemes,
falls within Congress’ power to regulate activities having a substantial
effect on interstate commerce. See Gonzales v. Raich, 545 U. S. 1, 17
(2005). Indeed, according to the Court, direct regulation is precisely
what the anticommandeering doctrine requires. Ante, at 14–18.
Cite as: 584 U. S. ____ (2018) 5
GINSBURG, J., dissenting
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 sportsgambling
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.

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