New Jersey told the U.S. Supreme Court on Wednesday that the entire federal statute banning sports betting violates the Tenth Amendment, reiterating, along with a thoroughbred horse owners and trainers group, its call for the high court to overturn a Third Circuit decision upholding the ban. 

Both the Garden State and the New Jersey Thoroughbred Horsemen’s Association Inc. filed reply briefs in their latest effort to convince the high court to strike down a federal sports betting ban as unconstitutional before Dec. 4 oral arguments.

In its brief, New Jersey said the Professional and Amateur Sports Protection Act, which prohibits states from authorizing sports betting, violates the Tenth Amendment’s anti-commandeering doctrine, because it dictates the contents of state laws by prohibiting states from “authorizing [sports betting] by law.”

Because this constraint on state legalization is central to the statutory scheme, the entire statute should fall, because Congress would not have otherwise enacted PASPA,” the state argued in the brief. “Without this central provision, PASPA would allow states to legalize sports wagering but prohibit them from regulating it, opening the floodgates to a multibillion dollar expansion of uncontrolled and underground sports wagering.”

New Jersey’s bid to skirt the ban goes back nearly half a decade and has now spanned every level of the federal judiciary.

The Third Circuit in 2013 struck down a measure permitting sports gambling that New Jersey Gov. Chris Christie signed in January 2012 after residents voted the previous year to amend the state constitution to allow sports wagering at Atlantic City casinos and state racetracks.

Undeterred, the Garden State turned around and passed a “partial repeal” in 2014 aimed at lifting all laws stopping sports betting at casinos and racetracks in the state. The Third Circuit again ruled against the state in 2016, finding in an eventual 9-3 en banc decision that the partial repeal was effectively the same as an authorization.

The state and the NJTHA separately lobbied the justices to take up the case, which the federal government opposed in May. The justices granted the petition in June.

The NCAA, NFL, NBA, NHL and MLB lobbed the underlying federal district court suits challenging both the 2012 measure and the partial repeal, eventually arguing before the Supreme Court on Oct. 16 that contrary to claims by New Jersey and the thoroughbred horse owners and trainers group, PASPA does not force states to enact or administer federal policy.

On Wednesday, New Jersey cited testimony from former U.S. Attorney Paul Fishman in the original suit against the state over the 2012 measure in order to highlight the flaws of arguments that the law is permissible.

I don’t think anybody is arguing the actual Doctrine of Preemption because there is a whole law of preemption out there that [the state’s counsel of record] is probably way more familiar with than I am, and there are different kinds of preemption,” Fishman said at a Feb. 14, 2013 hearing.

The state additionally reiterated its claims that PASPA impermissibly requires the state to maintain a sports betting ban.

In its own reply brief, the NJTHA also hit back at preemption claims, telling the court there’s no federal anti-sports-betting regulatory system in place that should be deferred to.

In order to interpret the ban in a constitutional framework, the federal government and the leagues have to interpret PASPA as giving states a choice on whether they will lift their prohibitions on sports gambling, the NJTHA said. However, the NJTHA said, in order to also gloss over the fact that such an argument would allow the repeal they are challenging, the government and leagues would have to establish an “indeterminate standard” by arguing that states are prevented from lifting the prohibition for too few people or at too few locations.

Rounding out the brief, the association told the Supreme Court that PASPA can be read in a way that does not prohibit repeals, arguing that under interpretations of the statute by the leagues and the federal government, the 2014 repeal at the heart of the high court appeal can still stand.