Adobe Images The Founding Fathers wagered that a government of limited and defined powers could withstand the expansionary tendencies of democratic politicking. That proposition has been tested many times, including with respect to online sports betting today.
When Publius undertook in the essays known today as the Federalist Papers to defend the drafted, but not yet ratified, Constitution against its antifederalist foes, he fiercely maintained that the new federal government would wield only those powers granted explicitly to it. Congress’s activities would be limited to those enumerated in the 18 clauses in Article I, Section 8 of the new compact.
Publius’s position has proven too optimistic. In the intervening 240 years, the government in Washington, D.C., has ventured out to regulate an ever-greater share of the American economy and American life, straying ever further from its constitutional mandate.
The national government now regulates the minutiae of myriad American industries, funds and manages the activities of state governments and individuals alike, and involves itself in all manner of projects, from promoting “resilient and equitable food system[s]” and child-designed video games to determining the color of the paint on American roads. The distended Leviathan continues to swell.
Congress’s next quarry is online sports gambling.
Last month, a subcommittee of the Senate Commerce Committee held a hearing titled, “No Sure Bets: Protecting Sports Integrity in America.” Chair Marsha Blackburn (R-Tenn.) intended to “examine how we strengthen oversight, protect the credibility of competition, and address the growing exposure of young people and children to betting platforms.” What business the Senate has in “examining” — let alone regulating — online gambling remains unclear.
Local jurisdictions are competent to regulate sports betting, as they might regulate any other recreational endeavor encompassed in the police power, which includes matters of health, safety, morals and public order. At present, 39 states and the District of Columbia have legalized sports betting and have proceeded to regulate it as their respective lawmakers choose.
Sports wagers are a consumable experience: one fan might drink a beer during a game, another might place a bet. Few people take DraftKings or FanDuel for a means to earn income. Two-thirds of bettors spend, on average, less than $100 per month — about as much as the monthly tab of a committed Starbucks patron.
The American Consumer Institute found that the progress of legalization “has not significantly increased overall gambling expenditures.” Likewise, rates of worrisome gambling — addiction — seem not to have increased. Many studies purporting to discover dangers and malignancies caused by gambling wilt under elementary scrutiny of their methodology.
In fact, legalized sports betting has benefitted consumers. It provides safe and (one would hope) prudently regulated and taxed platforms; the alternative is the black market, which is a dangerous destination for decent people. According to an American Gaming Association estimate, Americans wager $84 billion annually on sports using illegal and offshore gambling operations. And although it does not claim that legalization has caused a decrease in illegal betting, the association notes that “[s]ince 2022, the share of sports bettors exclusively using illegal sources has fallen by one-third, and illegal sportsbooks’ market share has dropped from 35 percent to 24 percent.”
For his part, the chairman of the full Commerce Committee, Sen. Ted Cruz (R-Texas), declared: “Fans shouldn’t have to wonder if their favorite player missed a buzzer-beater or dropped a touchdown pass because of a secret bet.” The fact is, players have long bet on sports — just ask fans of the 1919 Chicago White Sox or Pete Rose. However, legal sports-betting establishments can serve as investigators’ eyes and ears, reporting suspicious patterns that could go undocumented if they were to occur on illegal sportsbooks.
In October 2025, for instance, the Justice Department made public an indictment of six named defendants charged with committing wire fraud conspiracy and money laundering conspiracy in the course of a scheme to place illegal bets on NBA games. Amid the hubbub over this scandal, it went widely unnoticed that information from legal sportsbooks may well have aided the government’s investigations.
The federal government has attempted to prevent online gambling before — namely, in 1992’s Professional and Amateur Sports Protection Act, which the Supreme Court ruled unconstitutional in 2018.
Congress should not once again attempt to make a federal case out of the issue, so to speak. State governments are competent to regulate these matters, and the Constitution’s federalist architecture cannot tolerate further encroachments from the banks of the Potomac River.
David B. McGarry is the research director of the Taxpayers Protection Alliance and a writer with Young Voices.
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