SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 16–476 and 16–477

															_________________

															PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, et al., PETITIONERS

															16–476 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER

															16–477 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[May 14, 2018]

															Justice Breyer, concurring in part and
dissenting in part.

															I agree with Justice Ginsburg that 28
U. S. C. §3702(2) is severable from the challenged
portion of §3702(1). The challenged part of subsection (1)
prohibits a State from “author[izing]” or “licens[ing]” sports
gambling schemes; subsection (2) prohibits individuals from
“sponsor[ing], operat[ing], advertis[ing], or promot[ing]” sports
gambling schemes “pursuant to the law . . . of a
governmental entity.” The first says that a State cannot authorize
sports gambling schemes under state law; the second says that (just
in case a State finds a way to do so) sports gambling schemes that
a State authorizes are unlawful under federal law regardless. As
Justice Ginsburg makes clear, the latter section can live
comfortably on its own without the first.

															Why would Congress enact both these provisions?
The obvious answer is that Congress wanted to “keep sports gambling
from spreading.” S. Rep. No. 102–248, pp. 4–6 (1991). It feared
that widespread sports gambling would “threate[n] to change the
nature of sporting events from wholesome entertainment for all ages
to devices for gambling.” Id., at 4. And it may have
preferred that state authorities enforce state law forbidding
sports gambling than require federal authorities to bring civil
suits to enforce federal law forbidding about the same thing.
Alternatively, Congress might have seen subsection (2) as a backup,
called into play if subsection (1)’s requirements, directed to the
States, turned out to be unconstitutional—which, of course, is just
what has happened. Neither of these objectives is unreasonable.

															So read, the two subsections both forbid sports
gambling but §3702(2) applies federal policy directly to
individuals while the challenged part of §3702(1) forces the States
to prohibit sports gambling schemes (thereby shifting the burden of
enforcing federal regulatory policy from the Federal Government to
state governments). Section 3702(2), addressed to individuals,
standing alone seeks to achieve Congress’ objective of halting the
spread of sports gambling schemes by “regulat[ing] interstate
commerce directly.” New York v. United States , 505
U. S. 144, 166 (1992). But the challenged part of subsection
(1) seeks the same end indirectly by “regulat[ing] state
governments’ regulation of interstate commerce.” Ibid. And
it does so by addressing the States (not individuals) directly and
telling state legislatures what laws they must (or cannot) enact.
Under our precedent, the first provision (directly and
unconditionally telling States what laws they must enact) is
unconstitutional, but the second (directly telling individuals what
they cannot do) is not. See ibid. As so interpreted, the statutes would make New
Jersey’s victory here mostly Pyrrhic. But that is because the only
problem with the challenged part of §3702(1) lies in its means, not
its end. Congress has the constitutional power to prohibit sports
gambling schemes, and no party here argues that there is any
constitutional defect in §3702(2)’s alternative means of doing
so.

															I consequently join Justice Ginsburg’s
dissenting opinion in part, and all but Part VI–B of the Court’s
opinion. NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 16–476 and 16–477

															_________________

															PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, et al., PETITIONERS

															16–476 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER

															16–477 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[May 14, 2018]

															Justice Alito delivered the opinion of the
Court.

															The State of New Jersey wants to legalize sports
gambling at casinos and horseracing tracks, but a federal law, the
Professional and Amateur Sports Protection Act, generally makes it
unlawful for a State to “authorize” sports gambling schemes. 28
U. S. C. §3702(1). We must decide whether this provision
is compatible with the system of “dual sovereignty” embodied in the
Constitution.

															I

															A

															Americans have never been of one mind about
gambling, and attitudes have swung back and forth. By the end of
the 19th century, gambling was largely banned throughout the
country,[ 1 ] but beginning in
the 1920s and 1930s, laws prohibiting gambling were gradually
loosened.

															New Jersey’s experience is illustrative. In
1897, New Jersey adopted a constitutional amendment that barred all
gambling in the State.[ 2 ] But
during the Depression, the State permitted parimutuel betting on
horse races as a way of increasing state revenue,[ 3 ] and in 1953, churches and other nonprofit
organizations were allowed to host bingo games.[ 4 ] In 1970, New Jersey became the third State to
run a state lottery,[ 5 ] and
within five years, 10 other States followed suit.[ 6 ]

															By the 1960s, Atlantic City, “once the most
fashionable resort of the Atlantic Coast,” had fallen on hard
times,[ 7 ] and casino gambling
came to be seen as a way to revitalize the city.[ 8 ] In 1974, a referendum on statewide
legalization failed,[ 9 ] but two
years later, voters approved a narrower measure allowing casino
gambling in Atlantic City alone.[ 10 ] At that time, Nevada was the only other State with
legal

															casinos,[ 11 ] and thus for a while the Atlantic City casinos had an
east coast monopoly. “With 60 million people living within a
one-tank car trip away,” Atlantic City became “the most popular
tourist destination in the United States.”[ 12 ] But that favorable situation eventually came
to an end.

															With the enactment of the Indian Gaming
Regulatory Act in 1988, 25 U. S. C. §2701 et seq. ,
casinos opened on Indian land throughout the country. Some were
located within driving distance of Atlantic City,[ 13 ] and nearby States (and many others)
legalized casino gambling.[ 14 ] But Nevada remained the only state venue for legal
sports gambling in casinos, and sports gambling is immensely
popular.[ 15 ]

															Sports gambling, however, has long had strong
opposition. Opponents argue that it is particularly addictive and
especially attractive to young people with a strong interest in
sports,[ 16 ] and in the past
gamblers corrupted and seriously damaged the reputation of
professional and amateur sports.[ 17 ] Apprehensive about the potential effects of sports
gambling, professional sports leagues and the National Collegiate
Athletic Association (NCAA) long opposed legalization.[ 18 ]

															B

															By the 1990s, there were signs that the trend
that had brought about the legalization of many other forms of
gambling might extend to sports gambling,[ 19 ] and this sparked federal efforts to stem the tide.
Opponents of sports gambling turned to the legislation now before
us, the Professional and Amateur Sports Protection Act (PASPA). 28
U. S. C. §3701 et seq. PASPA’s proponents
argued that it would protect young people, and one of the bill’s
sponsors, Senator Bill Bradley of New Jersey, a former college and
professional basketball star, stressed that the law was needed to
safeguard the integrity of sports.[ 20 ] The Department of Justice opposed the bill,[ 21 ] but it was passed and signed
into law.

															PASPA’s most important provision, part of which
is directly at issue in these cases, makes it “unlawful” for a
State or any of its subdivisions[ 22 ] “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. §3702(1). In
parallel, §3702(2) makes it “unlawful” for “a person to sponsor,
operate, advertise, or promote” those same gambling
schemes[ 23 ]—but only if this
is done “pursuant to the law or compact of a governmental entity.”
PASPA does not make sports gambling a federal crime (and thus was
not anticipated to impose a significant law enforcement burden on
the Federal Government).[ 24 ]
Instead, PASPA allows the Attorney General, as well as professional
and amateur sports organizations, to bring civil actions to enjoin
violations. §3703.

															At the time of PASPA’s adoption, a few
jurisdictions allowed some form of sports gambling. In Nevada,
sports gambling was legal in casinos,[ 25 ] and three States hosted sports lotteries or allowed
sports pools.[ 26 ] PASPA
contains “grandfather” provisions allowing these activities to
continue. §3704(a)(1)–(2). Another provision gave New Jersey the
option of legalizing sports gambling in Atlantic City—provided that
it did so within one year of the law’s

															effective date. §3704(a)(3).[ 27 ]

															New Jersey did not take advantage of this
special option, but by 2011, with Atlantic City facing stiff
competition, the State had a change of heart. New Jersey voters
approved an amendment to the State Constitution making it lawful
for the legislature to authorize sports gambling, Art. IV, §7,
¶2(D), (F), and in 2012 the legislature enacted a law doing just
that, 2011 N. J. Laws p. 1723 (2012 Act).

															The 2012 Act quickly came under attack. The
major professional sports leagues and the NCAA brought an action in
federal court against the New Jersey Governor and other state
officials (hereinafter New Jersey), seeking to enjoin the new law
on the ground that it violated PASPA. In response, the State
argued, among other things, that PASPA unconstitutionally infringed
the State’s sovereign authority to end its sports gambling ban. See National Collegiate Athletic Assn. v. Christie , 926
F. Supp. 2d 551, 561 (NJ 2013).

															In making this argument, the State relied
primarily on two cases, New York v. United States ,
505 U. S. 144 (1992), and Printz v. United
States , 521 U. S. 898 (1997), in which we struck down
federal laws based on what has been dubbed the “anticommandeering”
principle. In New York , we held that a federal law
unconstitutionally ordered the State to regulate in accordance with
federal standards, and in Printz , we found that another
federal statute unconstitutionally compelled state officers to
enforce federal law.

															Relying on these cases, New Jersey argued that
PASPA is similarly flawed because it regulates a State’s
exercise

															of its lawmaking power by prohibiting it from
modifying or repealing its laws prohibiting sports gambling. See National Collegiate Athletic Assn. v. Christie , 926
F. Supp. 2d, at 561–562. The plaintiffs countered that
PASPA is critically different from the commandeering cases because
it does not command the States to take any affirmative act. Id. , at 562. Without an affirmative fed- eral command to do something, the plaintiffs insisted, there can be no claim
of commandeering. Ibid. The District Court found no anticommandeering
violation, id. , at 569–573, and a divided panel of the Third
Circuit affirmed, National Collegiate Athletic Assn. v. Christie , 730 F. 3d 208 (2013) ( Christie I ). The panel thought it significant that PASPA does
not impose any affirmative command. Id. , at 231. In the
words of the panel, “PASPA does not require or coerce the states to
lift a finger.” Ibid. (emphasis deleted). The panel
recognized that an affirmative command (for example, “Do not
repeal”) can often be phrased as a prohibition (“Repeal is
prohibited”), but the panel did not interpret PASPA as prohibiting
the repeal of laws outlawing sports gambling. Id. , at 232. A
repeal, it thought, would not amount to “authoriz[ation]” and thus
would fall outside the scope of §3702(1). “[T]he lack of an
affirmative prohibition of an activity,” the panel wrote, “does not
mean it is affirmatively authorized by law. The right to do that
which is not prohibited derives not from the authority of the state
but from the inherent rights of the people.” Id. , at 232
(emphasis deleted).

															New Jersey filed a petition for a writ of
certiorari, raising the anticommandeering issue. Opposing
certiorari, the United States told this Court that PASPA does not
require New Jersey “to leave in place the state-law prohibitions
against sports gambling that it had chosen to adopt prior to
PASPA’s enactment. To the contrary, New Jersey is free to repeal
those prohibitions in whole or in part.” Brief for United States in
Opposition in Christie v. National Collegiate Athletic
Assn. , O. T. 2013, No. 13–967 etc., p. 11. See also Brief
for Respondents in Opposition in No. 13–967 etc., p. 23
(“Nothing in that unambiguous language compels states to prohibit
or maintain any existing prohibition on sports gambling”). We
denied review. Christie v. National Collegiate Athletic
Assn ., 573 U. S. ___ (2014).

															Picking up on the suggestion that a partial
repeal would be allowed, the New Jersey Legislature enacted the law
now before us. 2014 N. J. Laws p. 602 (2014 Act). The
2014 Act declares that it is not to be interpreted as causing the
State to authorize, license, sponsor, operate, advertise, or
promote sports gambling. Ibid. Instead, it is framed as a
repealer. Specifically, it repeals the provisions of state law
prohibiting sports gambling insofar as they concerned the
“placement and acceptance of wagers” on sporting events by persons
21 years of age or older at a horseracing track or a casino or
gambling house in Atlantic City. Ibid. The new law also
specified that the repeal was effective only as to wagers on
sporting events not involving a New Jersey college team or a
collegiate event taking place in the State. Ibid. Predictably, the same plaintiffs promptly
commenced a new action in federal court. They won in the District
Court, National Collegiate Athletic Assn. v. Christie, 61 F. Supp. 3d 488 (NJ 2014), and the
case was eventually heard by the Third Circuit sitting en banc. The
en banc court affirmed, finding that the new law, no less than the
old one, violated PASPA by “author[izing]” sports gambling. National Collegiate Athletic Assn. v. Governor of
N. J. , 832 F. 3d 389 (2016) (case below). The court
was unmoved by the New Jersey Legislature’s “artful[ ]”
attempt to frame the 2014 Act as a repealer. Id. , at 397.
Looking at what the law “actually does,” the court concluded that
it constitutes an authorization because it “selectively remove[s] a
prohibition on sports wagering in a manner that permissively
channels wagering activity to particular locations or operators.” Id. , at 397, 401. The court disavowed some of the reasoning
in the Christie I opinion , finding its discussion of
“the relationship between a ‘repeal’ and an ‘authorization’ to have
been too facile.” 832 F. 3d, at 401. But the court declined to
say whether a repeal that was more complete than the 2014 Act would
still amount to an authorization. The court observed that a partial
repeal that allowed only “ de minimis wagers between friends
and family would not have nearly the type of authorizing effect”
that it found in the 2014 Act, and it added: “We need not
. . . articulate a line whereby a partial repeal of a
sports wagering ban amounts to an authorization under PASPA, if
indeed such a line could be drawn .” Id. , at 402
(emphasis added).

															Having found that the 2014 Act violates PASPA’s
prohibition of state authorization of sports gambling schemes, the
court went on to hold that this prohibition does not contravene the
anticommandeering principle because it “does not command states to
take affirmative actions.” Id. , at 401.

															We granted review to decide the important
constitutional question presented by these cases, sub nom . Christie v. National Collegiate
Athletic Assn. , 582 U. S. ___ (2017).

															II

															Before considering the constitutionality of
the PASPA provision prohibiting States from “author[izing]” sports
gambling, we first examine its meaning. The parties advance dueling
interpretations, and this dispute has an important bearing on the
constitutional issue that we must decide. Neither respondents nor
the United States, appearing as an amicus in support of
respondents, contends that the provision at issue would be
constitutional if petitioners’ interpretation is correct. Indeed,
the United States expressly concedes that the provision is
unconstitutional if it means what petitioners claim. Brief for
United States 8, 19.

															A

															Petitioners argue that the anti-authorization
provision requires States to maintain their existing laws against
sports gambling without alteration. One of the accepted meanings of
the term “authorize,” they point out, is “permit.” Brief for
Petitioners in No. 16–476, p. 42 (citing Black’s Law
Dictionary 133 (6th ed. 1990); Webster’s Third New International
Dictionary 146 (1992)). They therefore contend that any state law
that has the effect of permitting sports gambling, including a law
totally or partially repealing a prior prohibition, amounts to an
authorization. Brief for Petitioners in No. 16–476, at 42.

															Respondents interpret the provision more
narrowly. They claim that the primary definition of
“authorize” requires affirmative action. Brief for Respondents 39.
To authorize, they maintain, means “ ‘[t]o empower; to give a
right or authority to act; to endow with authority.’ ” Ibid. (quoting Black’s Law Dictionary, at 133). And this,
they say, is precisely what the 2014 Act does: It empowers a
defined group of entities, and it endows them with the authority to
conduct sports gambling operations.

															Respondents do not take the position that PASPA
bans all modifications of old laws against sports gambling, Brief
for Respondents 20, but just how far they think a modification
could go is not clear. They write that a State “can also repeal or
enhance [laws prohibiting sports gambling] without running afoul of
PASPA” but that it “cannot ‘partially repeal’ a general prohibition
for only one or two preferred providers, or only as to
sports-gambling schemes conducted by the state.” Ibid. Later
in their brief, they elaborate on this point:

															“If, for example, a state had an existing
felony prohibition on all lotteries, it could maintain the law, it
could repeal the law, it could downgrade the crime to a misdemeanor
or increase the penalty . . . . But if the state
modified its law, whether through a new authorization or through an
amendment partially repealing the existing prohibition, to
authorize the state to conduct a sports lottery, that modified law
would be preempted.” Id. , at 31.

															The United States makes a similar argument.
PASPA, it contends, does not prohibit a State from enacting a
complete repeal because “one would not ordinarily say that private
conduct is ‘authorized by law’ simply because the government has
not prohibited it.” Brief for United States 17. But the United
States claims that “[t]he 2014 Act’s selective and conditional
permission to engage in conduct that is generally prohibited
certainly qualifies” as an authorization. Ibid. The United
States does not argue that PASPA outlaws all partial
repeals, but it does not set out any clear rule for distinguishing
between partial repeals that constitute the “authorization” of
sports gambling and those that are permissible. The most that it is
willing to say is that a State could “eliminat[e] prohibitions on
sports gambling involving wagers by adults or wagers below a
certain dollar threshold.” Id. , at 29.

															B

															In our view, petitioners’ interpretation is
correct: When a State completely or partially repeals old laws
banning sports gambling, it “authorize[s]” that activity. This is
clear when the state-law landscape at the time of PASPA’s enactment
is taken into account. At that time, all forms of sports gambling
were illegal in the great majority of States, and in that context,
the competing definitions offered by the parties lead to the same
conclusion. The repeal of a state law banning sports gambling not
only “permits” sports gambling (petitioners’ favored definition);
it also gives those now free to conduct a sports betting operation
the “right or authority to act”; it “empowers” them (respondents’
and the United States’s definition).

															The concept of state “authorization” makes sense
only against a backdrop of prohibition or regulation. A State is
not regarded as authorizing everything that it does not prohibit or
regulate. No one would use the term in that way. For example, no
one would say that a State “authorizes” its residents to brush
their teeth or eat apples or sing in the shower. We commonly speak
of state authoriza- tion only if the activity in question would
otherwise be restricted.[ 28 ]

															The United States counters that, even if the
term “authorize,” standing alone, is interpreted as petitioners
claim, PASPA contains additional language that precludes that
reading. The provision at issue refers to “authoriz[ation] by
law ,” §3702(1) (emphasis added), and the parallel provision
governing private conduct, §3702(2), applies to conduct done
“pursuant to the law . . . of a governmental entity.” The
United States maintains that one “would not naturally describe a
person conducting a sports-gambling operation that is merely left
unregulated as acting ‘pursuant to’ state law.” Brief for United
States 18. But one might well say exactly that if the person
previously was prohibited from engaging in the activity. (“Now that
the State has legalized the sale of marijuana, Joe is able to sell
the drug pursuant to state law.”)

															The United States also claims to find support
for its interpretation in the fact that the authorization ban
ap-

															plies to all “governmental entities.” It is
implausible, the United States submits, to think that Congress
“commanded every county, district, and municipality in the Nation
to prohibit sports betting.” Ibid. But in making this
argument, the United States again ignores the legal landscape at
the time of PASPA’s enactment. At that time, sports gambling was
generally prohibited by state law, and therefore a State’s
political subdivisions were powerless to legalize the activity. But
what if a State enacted a law enabling, but not requiring, one or
more of its subdivisions to decide whether to authorize sports
gambling? Such a state law would not itself authorize sports
gambling. The ban on legalization at the local level addresses this
problem.

															The interpretation adopted by the Third Circuit
and advocated by respondents and the United States not only ignores
the situation that Congress faced when it enacted PASPA but also
leads to results that Congress is most unlikely to have wanted.
This is illustrated by the implausible conclusions that all of
those favoring alternative interpretations have been forced to
reach about the extent to which the provision permits the repeal of
laws banning sports gambling.

															The Third Circuit could not say which, if any,
partial repeals are allowed. 832 F. 3d, at 402. Respondents
and the United States tell us that the PASPA ban on state
authorization allows complete repeals, but beyond that they
identify no clear line. It is improbable that Congress meant to
enact such a nebulous regime.

															C

															The respondents and United States argue that
even if there is some doubt about the correctness of their
interpretation of the anti-authorization provision, that
interpretation should be adopted in order to avoid any
anticommandeering problem that would arise if the provision were
construed to require States to maintain their laws prohibiting
sports gambling. Brief for Respondents 38; Brief for United States
19. They invoke the canon of interpretation that a statute should
not be held to be unconstitutional if there is any reasonable
interpretation that can save it. See Jennings v. Rodriguez , 583 U. S. ___, ___ (2018) (slip op., at 12).
The plausibility of the alternative interpretations is debatable,
but even if the law could be interpreted as respondents and the
United States suggest, it would still violate the anticommandeering
principle, as we now explain.

															III

															A

															The anticommandeering doctrine may sound
arcane, but it is simply the expression of a fundamental structural
decision incorporated into the Constitution, i.e. , the
decision to withhold from Congress the power to issue orders
directly to the States. When the original States declared their
independence, they claimed the powers inherent in sovereignty—in
the words of the Declaration of Independence, the authority “to do
all . . . Acts and Things which Independent States may of
right do.” ¶32. The Constitution limited but did not abolish the
sovereign powers of the States, which retained “a residuary and
inviolable sovereignty.” The Federalist No. 39, p. 245 (C.
Rossiter ed. 1961). Thus, both the Federal Government and the
States wield sovereign powers, and that is why our system of
government is said to be one of “dual sovereignty.” Greg-
ory v. Ashcroft , 501 U. S. 452, 457 (1991).

															The Constitution limits state sovereignty in
several ways. It directly prohibits the States from exercising some
attributes of sovereignty. See, e.g. , Art. I, §10. Some
grants of power to the Federal Government have been held to impose
implicit restrictions on the States. See, e.g. , Department of Revenue of Ky. v. Davis , 553 U. S.
328 (2008); American Ins. Assn. v. Garamendi , 539
U. S. 396 (2003). And the Constitution indirectly restricts
the States by granting certain legislative powers to Congress, see
Art. I, §8, while providing in the Supremacy Clause that federal
law is the “supreme Law of the Land . . . any Thing in
the Constitution or Laws of any State to the Contrary
notwithstanding,” Art. VI, cl. 2. This means that when federal and
state law conflict, federal law prevails and state law is
preempted.

															The legislative powers granted to Congress are
sizable, but they are not unlimited. The Constitution confers on
Congress not plenary legislative power but only certain enumerated
powers. Therefore, all other legislative power is reserved for the
States, as the Tenth Amendment confirms. And conspicuously absent
from the list of powers given to Congress is the power to issue
direct orders to the governments of the States. The
anticommandeering doctrine simply represents the recognition of
this limit on congressional authority.

															Although the anticommandeering principle is
simple and basic, it did not emerge in our cases until relatively
recently, when Congress attempted in a few isolated instances to
extend its authority in unprecedented ways. The pioneering case was New York v. United States , 505 U. S. 144 (1992),
which concerned a federal law that required a State, under certain
circumstances, either to “take title” to low-level radioactive
waste or to “regulat[e] according to the instructions of Congress.” Id. , at 175. In enacting this provision, Congress issued
orders to either the legislative or executive branch of state
government (depending on the branch authorized by state law to take
the actions demanded). Either way, the Court held, the provision
was unconstitutional because “the Constitution does not empower
Congress to subject state governments to this type of instruction.” Id. , at 176.

															Justice O’Connor’s opinion for the Court traced
this rule to the basic structure of government established under
the Constitution. The Constitution, she noted, “confers upon
Congress the power to regulate individuals, not States.” Id. , at 166. In this respect, the Constitution represented a
sharp break from the Articles of Confederation. “Under the Articles
of Confederation, Congress lacked the authority in most respects to
govern the people directly.” Id. , at 163. Instead, Congress
was limited to acting “ ‘only upon the States.’ ” Id. , at 162 (quoting Lane County v. Oregon , 7
Wall. 71, 76 (1869)). Alexander Hamilton, among others, saw this as
“ ‘[t]he great and radical vice in . . . the
existing Confederation.’ ” 505 U. S., at 163 (quoting The
Federalist No. 15, at 108). The Constitutional Convention
considered plans that would have preserved this basic structure,
but it rejected them in favor of a plan under which “Congress would
exercise its legislative authority directly over individuals rather
than over States.” 505 U. S., at 165.

															As to what this structure means with regard to
Congress’s authority to control state legislatures, New York was clear and emphatic. The opinion recalled that “no Member of the
Court ha[d] ever suggested” that even “a particularly strong
federal interest” “would enable Congress to command a state
government to enact state regulation.” Id. , at 178
(emphasis in original). “We have always understood that even where
Congress has the authority under the Constitution to pass laws
requiring or prohibiting certain acts, it lacks the power directly
to compel the States to require or prohibit those acts.” Id. , at 166. “Congress may not simply ‘commandee[r] the
legislative processes of the States by directly compelling them to
enact and enforce a federal regulatory program.’ ” Id. ,
at 161 (quoting Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc ., 452 U. S. 264, 288
(1981)). “Where a federal interest is sufficiently strong to cause
Congress to legislate, it must do so directly; it may not conscript
state governments as its agents.” 505 U. S., at 178.

															Five years after New York , the Court
applied the same principles to a federal statute requiring state
and local law enforcement officers to perform background checks and
related tasks in connection with applications for handgun licenses. Printz , 521 U. S. 898. Holding this provision
unconstitutional, the Court put the point succinctly: “The Federal
Government” may not “command the States’ officers, or those of
their political subdivisions, to administer or enforce a federal
regulatory program.” Id. , at 935. This rule applies, Printz held, not only to state officers with policymaking
responsibility but also to those assigned more mundane tasks. Id. , at 929–930.

															B

															Our opinions in New York and Printz explained why adherence to the anticommandeering
principle is important. Without attempting a complete survey, we
mention several reasons that are significant here.

															First, the rule serves as “one of the
Constitution’s structural protections of liberty.” Printz , supra , at 921. “The Constitution does not protect the
sovereignty of States for the benefit of the States or state
governments as abstract political entities.” New York , supra , at 181. “To the contrary, the Constitution divides
authority between federal and state governments for the protection
of individuals.” Ibid. “ ‘[A] healthy balance of power
between the States and the Federal Government [reduces] the risk of
tyranny and abuse from either front.’ ” Id. , at 181–182
(quoting Gregory , 501 U. S., at 458).

															Second, the anticommandeering rule promotes
political accountability. When Congress itself regulates, the
responsibility for the benefits and burdens of the regulation is
apparent. Voters who like or dislike the effects of the regulation
know who to credit or blame. By contrast, if a State imposes
regulations only because it has been commanded to do so by
Congress, responsibility is blurred. See New York , supra , at 168–169; Printz , supra , at
929–930.

															Third, the anticommandeering principle prevents
Congress from shifting the costs of regulation to the States. If
Congress enacts a law and requires enforcement by the Executive
Branch, it must appropriate the funds needed to administer the
program. It is pressured to weigh the expected benefits of the
program against its costs. But if Congress can compel the States to
enact and enforce its program, Congress need not engage in any such
analysis. See, e.g. , E. Young, Two Cheers for Process
Federalism, 46 Vill. L. Rev. 1349, 1360–1361 (2001).

															IV

															A

															The PASPA provision at issue here—prohibiting
state authorization of sports gambling—violates the
anticommandeering rule. That provision unequivocally dictates what
a state legislature may and may not do. And this is true under
either our interpretation or that advocated by respondents and the
United States. In either event, state legislatures are put under
the direct control of Congress. It is as if federal officers were
installed in state legislative chambers and were armed with the
authority to stop legislators from voting on any offending
proposals. A more direct affront to state sovereignty is not easy
to imagine.

															Neither respondents nor the United States
contends that Congress can compel a State to enact legislation, but
they say that prohibiting a State from enacting new laws is another
matter. See Brief for Respondents 19; Brief for United States 12.
Noting that the laws challenged in New York and Printz “told states what they must do instead of what they
must not do,” respondents contend that commandeering occurs “only
when Congress goes beyond precluding state action and affirmatively
commands it.” Brief for Respondents 19 (emphasis deleted).

															This distinction is empty. It was a matter of
happenstance that the laws challenged in New York and Printz commanded “affirmative” action as opposed to imposing
a prohibition. The basic principle—that Congress cannot issue
direct orders to state legislatures—applies in either event.

															Here is an illustration. PASPA includes an
exemption for States that permitted sports betting at the time of
enactment, §3704, but suppose Congress did not adopt such an
exemption. Suppose Congress ordered States with legalized sports
betting to take the affirmative step of criminalizing that activity
and ordered the remaining States to retain their laws prohibiting
sports betting. There is no good reason why the former would
intrude more deeply on state sovereignty than the latter.

															B

															Respondents and the United States claim that
prior decisions of this Court show that PASPA’s anti-authorization
provision is constitutional, but they misread those cases. In none
of them did we uphold the constitutionality of a federal statute
that commanded state legislatures to enact or refrain from enacting
state law.

															In South Carolina v. Baker , 485
U. S. 505 (1988), the federal law simply altered the federal
tax treatment of private investments. Specifically, it removed the
federal tax exemption for interest earned on state and local bonds
unless they were issued in registered rather than bearer form. This
law did not order the States to enact or maintain any existing
laws. Rather, it simply had the indirect effect of pressuring
States to increase the rate paid on their bearer bonds in order to
make them competitive with other bonds paying taxable interest.

															In any event, even if we assume that removal of
the tax exemption was tantamount to an outright prohibition of the
issuance of bearer bonds, see id. , at 511, the law would
simply treat state bonds the same as private bonds. The
anticommandeering doctrine does not apply when Congress
evenhandedly regulates an activity in which both States and private
actors engage.

															That principle formed the basis for the Court’s
decision in Reno v. Condon , 528 U. S. 141
(2000), which concerned a federal law restricting the disclosure
and dissemination of personal information provided in applications
for driver’s licenses. The law applied equally to state and private
actors. It did not regulate the States’ sovereign authority to
“regulate their own citizens.” Id. , at 151.

															In Hodel , 452 U. S., at 289, the
federal law, which involved what has been called “cooperative
federalism,” by no means commandeered the state legislative
process. Congress enacted a statute that comprehensively regulated
surface coal mining and offered States the choice of “either
implement[ing]” the federal program “or else yield[ing] to a
federally administered regulatory program.” Ibid. Thus, the
federal law allowed but did not require the States to
implement a federal program. “States [were] not compelled to
enforce the [federal] standards, to expend any state funds, or to
participate in the federal regulatory program in any manner
whatsoever.” Id. , at 288. If a State did not “wish” to bear
the burden of regulation, the “full regulatory burden [would] be
borne by the Federal Government.” Ibid. Finally, in FERC v. Mississippi ,
456 U. S. 742 (1982), the federal law in question issued no
command to a state legislature. Enacted to restrain the consumption
of oil and natural gas, the federal law directed state utility
regulatory commissions to consider, but not necessarily to adopt,
federal “ ‘rate design’ and regulatory standards.” Id .,
at 746. The Court held that this modest requirement did not
infringe the States’ sovereign powers, but the Court warned that it
had “never . . . sanctioned explicitly a federal command
to the States to promulgate and enforce laws and regulations.” Id. , at 761–762. FERC was decided well before our
decisions in New York and Printz , and PASPA, unlike
the law in FERC , does far more than require States to consider Congress’s preference that the legalization of
sports gambling be halted. See Printz , 521 U. S., at
929 (distinguishing FERC ).

															In sum, none of the prior decisions on which
respondents and the United States rely involved federal laws that
commandeered the state legislative process. None concerned laws
that directed the States either to enact or to refrain from
enacting a regulation of the conduct of activities occurring within
their borders. Therefore, none of these precedents supports the
constitutionality of the PASPA provision at issue here.

															V

															Respondents and the United States defend the
anti-authorization prohibition on the ground that it constitutes a
valid preemption provision, but it is no such thing. Preemption is
based on the Supremacy Clause, and that Clause is not an
independent grant of legislative power to Congress. Instead, it
simply provides “a rule of decision.” Armstrong v. Exceptional Child Center, Inc. , 575 U. S. ___, ___
(2015) (slip op., at 3). It specifies that federal law is supreme
in case of a conflict with state law. Therefore, in order for the
PASPA provision to preempt state law, it must satisfy two
requirements. First, it must represent the exercise of a power
conferred on Congress by the Constitution; pointing to the
Supremacy Clause will not do. Second, since the Constitution
“confers upon Congress the power to regulate individuals, not
States,” New York , 505 U. S., at 166, the PASPA
provision at issue must be best read as one that regulates private
actors.

															Our cases have identified three different types
of preemption—“conflict,” “express,” and “field,” see English v. General Elec. Co. , 496 U. S. 72,
78–79 (1990)—but all of them work in the same way: Congress enacts
a law that imposes restrictions or confers rights on private
actors; a state law confers rights or imposes restrictions that
conflict with the federal law; and therefore the federal law takes
precedence and the state law is preempted.

															This mechanism is shown most clearly in cases
involving “conflict preemption.” A recent example is Mutual
Pharmaceutical Co. v. Bartlett , 570 U. S. 472
(2013). In that case, a federal law enacted under the Commerce
Clause regulated manufacturers of generic drugs, prohibiting them
from altering either the composition or labeling approved by the
Food and Drug Administration. A State’s tort law, however,
effectively required a manufacturer to supplement the warnings
included in the FDA-approved label. Id. , at 480–486. We held
that the state law was preempted because it imposed a duty that was
inconsistent— i.e. , in conflict—with federal law. Id . , at 493.

															“Express preemption” operates in essentially the
same way, but this is often obscured by the language used by
Congress in framing preemption provisions. The provision at issue
in Morales v. Trans World Airlines, Inc. , 504
U. S. 374 (1992), is illustrative. The Airline Deregulation
Act of 1978 lifted prior federal regulations of airlines, and “[t]o
ensure that the States would not undo federal deregulation with
regulation of their own,” id. , at 378, the Act provided that
“no State or political subdivision thereof . . . shall
enact or enforce any law, rule, regulation, standard, or other
provision having the force and effect of law relating to rates,
routes, or services of any [covered] air car- rier.” 49
U. S. C. App. §1305(a)(1) (1988 ed.).

															This language might appear to operate directly
on the States, but it is a mistake to be confused by the way in
which a preemption provision is phrased. As we recently explained,
“we do not require Congress to employ a particular linguistic
formulation when preempting state law.” Coventry Health Care of
Mo., Inc. v. Nevils , 581 U. S. ___, ___–___ (2017)
(slip op., at 10–11). And if we look beyond the phrasing employed
in the Airline Deregulation Act’s preemption provision, it is clear
that this provision operates just like any other federal law with
preemptive effect. It confers on private entities ( i.e. ,
covered carriers) a federal right to engage in certain conduct
subject only to certain (federal) constraints.

															“Field preemption” operates in the same way.
Field preemption occurs when federal law occupies a “field” of
regulation “so comprehensively that it has left no room for
supplementary state legislation.” R. J. Reynolds Tobacco
Co. v. Durham County , 479 U. S. 130, 140 (1986). In
describing field preemption, we have sometimes used the same sort
of shorthand employed by Congress in express preemption provisions.
See, e.g. , Oneok, Inc. v. Learjet, Inc., 575
U. S. ___, ___ (2015) (slip op., at 2) (“Congress has
forbidden the State to take action in the field that the
federal statute pre-empts”). But in substance, field preemption
does not involve congressional commands to the States. Instead,
like all other forms of preemption, it concerns a clash between a
constitutional exercise of Congress’s legislative power and
conflicting state law. See Crosby v. National Foreign
Trade Council , 530 U. S. 363, 372, n. 6 (2000).

															The Court’s decision in Arizona v. United States , 567 U. S. 387 (2012), shows how this
works. Noting that federal statutes “provide a full set of
standards governing alien registration,” we concluded that these
laws “reflect[ ] a congressional decision to foreclose any
state regulation in the area, even if it is parallel to federal
standards.” Id. , at 401. What this means is that the federal
registration provisions not only impose federal registration
obligations on aliens but also confer a federal right to be free
from any other registration requirements.

															In sum, regardless of the language sometimes
used by Congress and this Court, every form of preemption is based
on a federal law that regulates the conduct of private actors, not
the States.

															Once this is understood, it is clear that the
PASPA provision prohibiting state authorization of sports gambling
is not a preemption provision because there is no way in which this
provision can be understood as a regulation of private actors. It
certainly does not confer any federal rights on private actors
interested in conducting sports gambling operations. (It does not
give them a federal right to engage in sports gambling.) Nor does
it impose any federal restrictions on private actors. If a private
citizen or company started a sports gambling operation, either with
or without state authorization, §3702(1) would not be violated and
would not provide any ground for a civil action by the Attorney
General or any other party. Thus, there is simply no way to
understand the provision prohibiting state authorization as
anything other than a direct command to the States. And that is
exactly what the anticommandeering rule does not allow.

															In so holding, we recognize that a closely
related provision of PASPA, §3702(2), does restrict private
conduct, but that is not the provision challenged by petitioners.
In Part VI–B–2, infra , we consider whether §3702(2) is
severable from the provision directly at issue in these cases.

															VI

															Having concluded that §3702(1) violates the
anti-commandeering doctrine, we consider two additional questions:
first, whether the decision below should be affirmed on an
alternative ground and, second, whether our decision regarding the
anti-authorization provision dooms the remainder of PASPA.

															A

															Respondents and the United States argue that,
even if we disagree with the Third Circuit’s decision regarding the
constitutionality of the anti-authorization provision, we should
nevertheless affirm based on PASPA’s prohibition of state
“licens[ing]” of sports gambling. Brief for Respondents 43,
n. 10; Brief for United States 34–35. Although New Jersey’s
2014 Act does not expressly provide for the licensing of sports
gambling operations, respondents and the United States contend that
the law effectively achieves that result because the only entities
that it authorizes to engage in that activity, i.e. , casinos
and racetracks, are already required to be licensed. Ibid. We need not decide whether the 2014 Act violates
PASPA’s prohibition of state “licens[ing]” because that provision
suffers from the same defect as the prohibition of state
authorization. It issues a direct order to the state
legislature.[ 29 ] Just as
Congress lacks the power to order a state legislature not to enact
a law authorizing sports gambling, it may not order a state
legislature to refrain from enacting a law licensing sports
gambling.[ 30 ]

															B

															We therefore turn to the question whether, as
petitioners maintain, our decision regarding PASPA’s prohibition of
the authorization and licensing of sports gambling operations dooms
the remainder of the Act. In order for other PASPA provisions to
fall, it must be “evident that

															[Congress] would not have enacted those
provisions which are within its power, independently of [those]
which [are] not.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (internal
quotation marks omitted). In conducting that inquiry, we ask
whether the law remains “fully operative” without the invalid
provisions, Free Enterprise Fund v. Public Company
Accounting Oversight Bd. , 561 U. S. 477, 509 (2010)
(internal quotation marks omitted), but “we cannot rewrite a
statute and give it an effect altogether different from that sought
by the measure viewed as a whole,” Railroad Retirement Bd. v. Alton R. Co. , 295 U. S. 330, 362 (1935). We will
consider each of the provisions at issue separately.

															1

															Under 28 U. S. C. §3702(1), States
are prohibited from “operat[ing],” “sponsor[ing],” or “promot[ing]”
sports gambling schemes. If the provisions prohibiting state
authorization and licensing are stricken but the prohibition on
state “operat[ion]” is left standing, the result would be a scheme
sharply different from what Congress contemplated when PASPA was
enacted. At that time, Congress knew that New Jersey was
considering the legalization of sports gambling in the privately
owned Atlantic City casinos and that other States were thinking
about the institution of state-run sports lotteries. PASPA
addressed both of these potential developments. It gave New Jersey
one year to legalize sports gambling in Atlantic City but otherwise
banned the authorization of sports gambling in casinos, and it
likewise prohibited the spread of state-run lotteries. If Congress
had known that States would be free to authorize sports gambling in
privately owned casinos, would it have nevertheless wanted to
prevent States from running sports lotteries?

															That seems most unlikely. State-run lotteries,
which sold tickets costing only a few dollars, were thought more
benign than other forms of gambling, and that is why they had been
adopted in many States. Casino gambling, on the other hand, was
generally regarded as far more dangerous. A gambler at a casino can
easily incur heavy losses, and the legalization of privately owned
casinos was known to create the threat of infiltration by organized
crime, as Nevada’s early experience had notoriously shown.[ 31 ] To the Congress that adopted
PASPA, legalizing sports gambling in privately owned casinos while
prohibiting state-run sports lotteries would have seemed exactly
backwards.

															Prohibiting the States from engaging in
commercial activities that are permitted for private parties would
also have been unusual, and it is unclear what might justify such
disparate treatment. Respondents suggest that Congress wanted to
prevent States from taking steps that the public might interpret as
the endorsement of sports gambling, Brief for Respondents 39, but
we have never held that the Constitution permits the Federal
Government to prevent a state legislature from expressing its views
on subjects of public importance. For these reasons, we do not
think that the provision barring state operation of sports gambling
can be severed.

															We reach the same conclusion with respect to the
provisions prohibiting state “sponsor[ship]” and “promot[ion].” The
line between authorization, licensing, and operation, on the one
hand, and sponsorship or promotion, on the other, is too uncertain.
It is unlikely that Congress would have wanted to prohibit such an
ill-defined category of state conduct.

															2

															Nor do we think that Congress would have
wanted to

															sever the PASPA provisions that prohibit a
private actor from “sponsor[ing],” “operat[ing],” or “promot[ing]”
sports gambling schemes “pursuant to” state law. §3702(2). These
provisions were obviously meant to work together with the
provisions in §3702(1) that impose similar restrictions on
governmental entities. If Congress had known that the latter
provisions would fall, we do not think it would have wanted the
former to stand alone.

															The present cases illustrate exactly how
Congress must have intended §3702(1) and §3702(2) to work. If a
State attempted to authorize particular private entities to engage
in sports gambling, the State could be sued under §3702(1), and the
private entity could be sued at the same time under §3702(2). The
two sets of provisions were meant to be deployed in tandem to stop
what PASPA aimed to prevent: state legalization of sports gambling.
But if, as we now hold, Congress lacks the authority to prohibit a
State from legalizing sports gambling, the prohibition of private
conduct under §3702(2) ceases to implement any coherent federal
policy.

															Under §3702(2), private conduct violates federal
law only if it is permitted by state law. That strange rule is
exactly the opposite of the general federal approach to gambling.
Under 18 U. S. C. §1955, operating a gambling business
violates federal law only if that conduct is illegal under state or
local law. Similarly, 18 U. S. C. §1953, which
criminalizes the interstate transmission of wagering paraphernalia,
and 18 U. S. C. §1084, which outlaws the interstate
transmission of information that assists in the placing of a bet on
a sporting event, apply only if the underlying gambling is illegal
under state law. See also 18 U. S. C. §1952 (making it
illegal to travel in interstate commerce to further a gambling
business that is illegal under applicable state law).

															These provisions implement a coherent federal
policy: They respect the policy choices of the people of each State
on the controversial issue of gambling. By contrast, if §3702(2) is
severed from §3702(1), it implements a perverse policy that
undermines whatever policy is favored by the people of a State. If
the people of a State support the legalization of sports gambling,
federal law would make the activity illegal. But if a State outlaws
sports gambling, that activity would be lawful under §3702(2). We
do not think that Congress ever contemplated that such a weird
result would come to pass.

															PASPA’s enforcement scheme reinforces this
conclusion. PASPA authorizes civil suits by the Attorney General
and sports organizations but does not make sports gambling a
federal crime or provide civil penalties for violations. This
enforcement scheme is suited for challenging state authorization or
licensing or a small number of private operations, but the scheme
would break down if a State broadly decriminalized sports gambling.
It is revealing that the Congressional Budget Office estimated that
PASPA would impose “no cost” on the Federal Government, see
S. Rep. No. 102–248, p. 10 (1991), a conclusion that
would certainly be incorrect if enforcement required a multiplicity
of civil suits and applications to hold illegal bookies and other
private parties in contempt.[ 32 ]

															3

															The remaining question that we must decide is
whether the provisions of PASPA prohibiting the “advertis[ing]” of
sports gambling are severable. See §§3702(1)–(2). If these
provisions were allowed to stand, federal law would forbid the
advertising of an activity that is legal under both

															federal and state law, and that is something
that Congress has rarely done. For example, the advertising of
cigarettes is heavily regulated but not totally banned. See Federal
Cigarette Labeling and Advertising Act, 79Stat. 282; Family Smoking
Prevention and Tobacco Control Act, §§201–204, 123Stat.
1842–1848.

															It is true that at one time federal law
prohibited the use of the mail or interstate commerce to distribute
advertisements of lotteries that were permitted under state law,
but that is no longer the case. See United States v. Edge
Broadcasting Co. , 509 U. S. 418, 421–423 (1993). In 1975,
Congress passed a new statute, codified at 18 U. S. C.
§1307, that explicitly exempts print advertisements
regarding a lottery lawfully conducted by States, and in Greater
New Orleans Broadcasting Assn. , Inc. v. United
States , 527 U. S. 173, 176 (1999), we held that the First
Amendment protects the right of a radio or television station in a
State with a lottery to run such advertisements. In light of these
developments, we do not think that Congress would want the
advertising provisions to stand if the remainder of PASPA must
fall.

															For these reasons, we hold that no provision of
PASPA is severable from the provision directly at issue in these
cases.

															*  *  *

															The legalization of sports gambling is a
controversial subject. Supporters argue that legalization will
produce revenue for the States and critically weaken illegal sports
betting operations, which are often run by organized crime.
Opponents contend that legalizing sports gambling will hook the
young on gambling, encourage people of modest means to squander
their savings and earnings, and corrupt professional and college
sports.

															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.

															The judgment of the Third Circuit is
reversed.

															It is so ordered. Notes 1 See Nat. Gambling Impact
Study Comm’n, Final Report, p. 2–1 (1999) (Final Report); S.
Durham & K. Hashimoto, The History of Gambling in America 34–35
(2010). 2 See Atlantic City
Racing Assn. v. Attorney General , 98 N. J. 535,
539–541, 489 A. 2d 165, 167–168 (1985). 3 See Note, The Casino Act:
Gambling’s Past and the Casino Act’s Future, 10 Rutgers-Camden L.
J. 279, 287 (1979) (The Casino Act). 4 Id. , at 288; see
also N. J. Const., Art. 4, §7, ¶2(A); Bingo Licensing Law, N.
J. Stat. Ann. §5:8–24 et seq. ( West
2012). 5 See State Lottery Law,
N. J. Stat. Ann. §5:9–1 et seq. ; The Casino Act,
at 288; N. J. Const., Art. 4, §7, ¶2(C); Final Report, at
2–1. 6 Id. , at
2–1. 7 T. White, The Making of
the President 1964, p. 275 (1965). 8 See D. Clary, Gangsters
to Governors 152–153 (2017) (Clary). 9 See The Casino Act, at
289. 10 See ibid. ; N. J. Const., Art. 4, §7, ¶2(D). 11 Clary
146. 12 Id. , at 146, 158. 13 Id. , at 208–210. 14 Casinos now operate in New York,
Pennsylvania, Delaware, and Maryland. See American Gaming Assn.,
2016 State of the States, p. 8, online at
https://www.americangaming.org/sites/default/files/2016%20State%20of%20the%20States_FINAL.pdf
(all Internet materials as last visited May 4, 2018). 15 See, e.g. , Brief for American Gaming Assn. as Amicus
Curiae 1–2. 16 See, e.g. , Final Report, at 3–10; B. Bradley, The Professional
and Amateur Sports Protection Act—Policy Concerns Behind Senate
Bill 474, 2 Seton Hall J. Sport L. 5, 7 (1992); Brief for Stop
Predatory Gambling et al. as Amici Curiae 22–23. 17 For
example, in 1919, professional gamblers are said to have paid
members of the Chicago White Sox to throw the World Series, an
episode that was thought to have threatened baseball’s status as
the Nation’s pastime. See E. Asinof, Eight Men Out: The Black Sox
andthe 1919 World Series 5, 198–199 (1963). And in the early 1950s,
the Nation was shocked when several college basketball players were
convicted for shaving points. S. Cohen, The Game They Played
183–238 (1977). This scandal is said to have nearly killed college
basketball. See generally C. Rosen, Scandals of ’51: How the
Gamblers Almost Killed College Basketball (1978). 18 See
Professional and Amateur Sports Protection, S. Rep. No. 102–248,
p. 8 (1991); Hearing before the Subcommittee on Patents,
Copyrights and Trademarks of the Senate Committee on the Judiciary,
102d Cong., 1st Sess., 21, 39, 46–47, 59–60, 227 (1991) (S. Hrg.
102–499) (statements by representatives of major sports leagues
opposing sports gambling). 19 S. Rep. No. 102–248, at
5. 20 S.
Hrg. 102–499, at 10–14. 21 App.
to Pet. for Cert. in No. 16–476, p. 225a. 22 The
statute applies to any “governmental entity,” which is definedas “a
State, a political subdivision of a State, or an entity or
organization . . . that has governmental authority within
the territorial boundaries of the United States.” 28
U. S. C. §3701(2). 23 PASPA
does not define the term “scheme.” The United States has not
offered a definition of the term but suggests that it encompasses
only those forms of gambling having some unspecified degree of
organization or structure. See Brief for United States as Amicus
Curiae 28–29. For convenience, we will use the term “sports
gambling” to refer to whatever forms of sports gambling fall within
PASPA’s reach. 24 The
Congressional Budget Office estimated that PASPA would not require
the appropriation of any federal funds. S. Rep. No. 102–248, at
10. 25 Ibid. 26 Ibid. ; 138 Cong. Rec.
12973. 27 Although this provision did not
specifically mention New Jersey or Atlantic City, its
requirements—permitting legalization only “in a municipality” with
an uninterrupted 10-year history of legal casino gaming—did not fit
anyplace else. 28 See, e.g. , A. McCullum, Vermont’s legal recreational marijuana
law: What you should know, USA Today Network (Jan. 23, 2018),
online at
https://www.usatoday.com/story/news/nation-now/ 2018/ 01 /23 / vermont-legal-marijuana-law-what-know/1056869001/
(“Vermont . . . bec[ame] the first [State] in the country
to authorize the recreational use of [marijuana] by an act
of a state legislature.” (emphasis added)). 29 Even
if the prohibition of state licensing were not itself
unconstitutional, we do not think it could be severed from the
invalid provision forbidding state authorization. The provision of
PASPA giving New Jersey the option of legalizing sports gambling
within one year of enactment applied only to casinos operated
“pursuant to a compre-hensive system of State regulation.”
§3704(a)(3)(B). This showsthat Congress preferred tightly regulated
sports gambling over total deregulation. 30 The
dissent apparently disagrees with our holding that the provisions
forbidding state authorization and licensing violate the
anticommandering principle, but it provides no explanation for its
position. 31 See
Clary 84–102. 32 Of
course, one need not rely on the Senate Report for the commonsense
proposition that leaving §3702(2) in place could wildly change the
fiscal calculus, “giv[ing] it an effect altogether different from
that sought by the measure viewed as a whole.” Railroad
Retirement Bd. v. Alton R. Co ., 295
U.S. 330 , 362 (1935). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 16–476 and 16–477

															_________________

															PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, et al., PETITIONERS

															16–476 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER

															16–477 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[May 14, 2018]

															Justice Thomas, concurring.

															I join the Court’s opinion in its entirety. I
write separately, however, to express my growing discomfort with
our modern severability precedents.

															I agree with the Court that the Professional and
Amateur Sports Protection Act (PASPA) exceeds Congress’ Article I
authority to the extent it prohibits New Jersey from
“authoriz[ing]” or “licens[ing]” sports gambling, 28
U. S. C. §3702(1). Unlike the dissent, I do “doubt” that
Congress can prohibit sports gambling that does not cross state
lines. Post, at 2 (opinion of Ginsburg, J.); see License
Tax Cases , 5 Wall. 462, 470–471 (1867) (holding that Congress
has “no power” to regulate “the internal commerce or domestic trade
of the States,” including the intrastate sale of lottery tickets); United States v. Lopez , 514 U. S. 549, 587–601
(1995) (Thomas, J., concurring) (documenting why the Commerce
Clause does not permit Congress to regulate purely local activities
that have a substantial effect on interstate commerce). But even
assuming the Commerce Clause allows Congress to prohibit intrastate
sports gambling “directly,” it “does not authorize Congress to
regulate state governments’ regulation of interstate commerce.” New York v. United States , 505 U. S. 144, 166
(1992). The Necessary and Proper Clause does not give Congress this
power either, as a law is not “proper” if it “subvert[s] basic
principles of federalism and dual sovereignty.” Gonzales v. Raich , 545 U. S. 1, 65 (2005) (Thomas, J., dissenting).
Commandeering the States, as PASPA does, subverts those principles.
See Printz v. United States , 521 U. S. 898,
923–924 (1997).

															Because PASPA is at least partially
unconstitutional, our precedents instruct us to determine “which
portions of the . . . statute we must sever and excise.” United States v. Booker , 543 U. S. 220, 258
(2005) (emphasis deleted). The Court must make this severability
determination by asking a counterfactual question: “ ‘Would
Congress still have passed’ the valid sections ‘had it known’ about
the constitutional invalidity of the other portions of the
statute?” Id., at 246 (quoting Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC , 518
U. S. 727, 767 (1996) (plurality opinion)). I join the Court’s
opinion because it gives the best answer it can to this question,
and no party has asked us to apply a different test. But in a
future case, we should take another look at our severability
precedents.

															Those precedents appear to be in tension with
traditional limits on judicial authority. Early American courts did
not have a severability doctrine. See Walsh, Partial
Unconstitutionality, 85 N. Y. U. L. Rev. 738, 769
(2010) (Walsh). They recognized that the judicial power is,
fundamentally, the power to render judgments in individual cases.
See id. , at 755; Baude, The Judgment Power, 96 Geo.
L. J. 1807, 1815 (2008). Judicial review was a byproduct of
that process. See generally P. Hamburger, Law and Judicial Duty
(2008); Prakash & Yoo, The Origins of Judicial Review, 70 U.
Chi. L. Rev. 887 (2003). As Chief Justice Marshall famously
explained, “[i]t is emphatically the province and duty of the
judicial department to say what the law is” because “[t]hose who
apply the rule to particular cases, must of necessity expound and
interpret that rule.” Marbury v. Madison , 1 Cranch
137, 177 (1803). If a plaintiff relies on a statute but a defendant
argues that the statute conflicts with the Constitution, then
courts must resolve that dispute and, if they agree with the
defendant, follow the higher law of the Constitution. See id., at 177–178; The Federalist No. 78, p. 467
(C. Rossiter ed. 1961) (A. Hamilton). Thus, when early
American courts determined that a statute was unconstitutional,
they would simply decline to enforce it in the case before them.
See Walsh 755–766. “[T]here was no ‘next step’ in which courts
inquired into whether the legislature would have preferred no law
at all to the constitutional remainder.” Id. , at 777.

															Despite this historical practice, the Court’s
modern cases treat the severability doctrine as a “remedy” for
constitutional violations and ask which provisions of the statute
must be “excised.” See, e.g., Ayotte v. Planned
Parenthood of Northern New Eng. , 546 U. S. 320, 329
(2006); Booker , supra , at 245; Alaska Airlines,
Inc. v. Brock , 480 U. S. 678, 686 (1987). This
language cannot be taken literally. Invalidating a statute is not a
“remedy,” like an injunction, a declaration, or damages. See
Harrison, Severability, Remedies, and Constitutional Adjudication,
83 Geo. Wash. L. Rev. 56, 82–88 (2014) (Harrison). Remedies
“operate with respect to specific parties,” not “on legal rules in
the abstract.” Id. , at 85; see also Massachusetts v. Mellon , 262 U. S. 447, 488 (1923) (explaining that the
power “to review and annul acts of Congress” is “little more than
the negative power to disregard an unconstitutional enactment” and
that “the court enjoins . . . not the execution of the
statute, but the acts of the official”). And courts do not have the
power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen.
22, 22–23 (1937) (“The decisions are practically in accord in
holding that the courts have no power to repeal or abolish a
statute”); Harrison 82 (“[C]ourts do not make [nonseverable]
provisions inoperative . . . . Invalidation by
courts is a figure of speech”); Mitchell, The Writ-of-Erasure
Fallacy, 104 Va. L. Rev. (forthcoming 2018) (manuscript, at 4)
(“The federal courts have no authority to erase a duly enacted law
from the statute books”), online at https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3158038 (as last visited May 11, 2018).

															Because courts cannot take a blue pencil to
statutes, the severability doctrine must be an exercise in
statutory interpretation. In other words, the severability doctrine
has courts decide how a statute operates once they conclude that
part of it cannot be constitutionally enforced. See Fallon,
As-Applied and Facial Challenges and Third-Party Standing, 113
Harv. L. Rev. 1321, 1333–1334 (2000); Harrison 88. But even under
this view, the severability doctrine is still dubious for at least
two reasons.

															First, the severability doctrine does not follow
basic principles of statutory interpretation. Instead of requiring
courts to determine what a statute means, the severability doctrine
requires courts to make “a nebulous inquiry into hypothetical
congressional intent.” Booker , supra , at 320,
n. 7 (Thomas, J., dissenting in part). It requires judges to
determine what Congress would have intended had it known that part
of its statute was unconstitutional.[ 1 ] But it seems unlikely that the enacting Congress had
any intent on this question; Congress typically does not pass
statutes with the expectation that some part will later be deemed
unconstitutional. See Walsh 740–741; Stern, Separability and
Separability Clauses in the Supreme Court, 51 Harv. L. Rev.
76, 98 (1937) (Stern). Without any actual evidence of intent, the
severability doctrine invites courts to rely on their own views
about what the best statute would be. See Walsh 752–753; Stern
112–113. More fundamentally, even if courts could discern Congress’
hypothetical intentions, intentions do not count unless they are
enshrined in a text that makes it through the constitutional
processes of bicameralism and presentment. See Wyeth v. Levine , 555 U. S. 555, 586–588 (2009) (Thomas, J.,
concurring in judgment). Because we have “ ‘a Government of
laws, not of men,’ ” we are governed by “legislated text,” not
“legislators’ intentions”—and especially not legislators’ hypothetical intentions. Zuni Public School Dist. No.
89 v. Department of Education , 550 U. S. 81, 119
(2007) (Scalia, J., dissenting). Yet hypothetical intent is exactly
what the severability doctrine turns on, at least when Congress has
not expressed its fallback position in the text.

															Second, the severability doctrine often requires
courts to weigh in on statutory provisions that no party has
standing to challenge, bringing courts dangerously close to issuing
advisory opinions. See Stern 77; Lea, Situational Severability, 103
Va. L. Rev. 735, 788–803 (2017) (Lea). If one provision of a
statute is deemed unconstitutional, the severability doctrine
places every other provision at risk of being declared nonseverable
and thus inoperative; our precedents do not ask whether the
plaintiff has standing to challenge those other provisions. See National Federation of Independent Business v. Sebelius , 567 U. S. 519, 696–697 (2012) (joint dissent)
(citing, as an example, Williams v. Standard Oil Co. of
La. , 278 U. S. 235, 242–244 (1929)). True, the plaintiff
had standing to challenge the unconstitutional part of the statute.
But the severability doctrine comes into play only after the
court has resolved that issue—typically the only live controversy
between the parties. In every other context, a plaintiff must
demonstrate standing for each part of the statute that he wants to
challenge. See Lea 789, 751, and nn. 79–80 (citing, as
examples, Davis v. Federal Election Comm’n , 554
U. S. 724, 733–734 (2008); DaimlerChrysler Corp. v. Cuno , 547 U. S. 332, 346, 350–353 (2006)). The
severability doctrine is thus an unexplained exception to the
normal rules of standing, as well as the separation-of-powers
principles that those rules protect. See Steel Co. v. Citizens for Better Environment , 523 U. S. 83, 101
(1998).

															In sum, our modern severability precedents are
in tension with longstanding limits on the judicial power. And,
though no party in this case has asked us to reconsider these
precedents, at some point, it behooves us to do so. Notes 1 The first court to engage
in this counterfactual exploration of legislative intent was the
Massachusetts Supreme Judicial Court in Warren v. Mayor
and Aldermen of Charlestown , 68 Mass. 84, 99 (1854). This Court
adopted the Warren formulation in the late 19th century, see Allen v. Louisiana , 103 U. S. 80, 84 (1881), an
era when statutory interpretation privileged Congress’ unexpressed
“intent” over the enacted text, see, e.g., Church of Holy
Trinity v. United States , 143 U. S. 457, 472
(1892); United States v. Moore , 95 U. S. 760,
763 (1878). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 16–476 and 16–477

															_________________

															PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, et al., PETITIONERS

															16–476 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER

															16–477 v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[May 14, 2018]

															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 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 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
sports-gambling schemes, whether state run or privately oper- ated,
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. 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 sports-gambling 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 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
sports-gambling 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. Notes 1 PASPA 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. Ifa state ban is
in place, of course, there is no need for a
federalproscription. 3 Notably, 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 As 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.

Summary: The Supreme Court ruled that the Professional and Amateur Sports Protection Act (PASPA) is unconstitutional as it violates the anti-commandeering doctrine by requiring states to prohibit sports gambling schemes, effectively shifting the burden of enforcing federal regulatory policy from the federal government to state governments. Justice Breyer, concurring in part and dissenting in part, argued that the Court should have only struck down the portion of PASPA that prohibited states from "authorizing" or "licensing" sports gambling schemes, while leaving intact the portion that prohibited individuals from operating sports gambling schemes under federal law. He reasoned that Congress included both provisions to ensure that sports gambling schemes were stopped and that the stoppage was clearly attributable to federal action. Justice Breyer concluded that the Court's decision to invalidate all of PASPA was irrational and unjustified.