Case: 25-1922 Document: 83 Page: 10 Date Filed: 09/24/2025
Page 9
1 political power without a clear statement, and we have the fact
2 that Congress doesn't lightly repeal its own statutes, and
3 Congress has time and time again, every time it passed a
4 federal gambling law accommodated and accepted state law, and
5 that's what we think they were doing here. They didn't do
6 anything to upend that there. We require a clear statement for
7 Congress to do that. I mean, this would -- the Wire Act's
8 prohibition on interstate gambling wouldn't make any sense if
9 everything was legal through the CFTC.
10
At the time this was enacted in 2010, PASPA was making
11 sports betting largely illegal. That apparently was for
12 nothing. The Supreme Court's decision in Murphy apparently did
13 nothing because everything was legal through the CFTC. So we
14 have those three clear statements.
15
JUDGE PORTER: Why do you -- why do you say nothing
16 and everything? I mean, we're talking about transactions only
17 on the DCM's, right? Not all sports gambling.
18
MR. EHRLICH: Well, we are, but the problem is with
19 the structure is the Commodity Exchange Act prohibits trading
20 of swaps specifically. We're talking about swaps that the
21 parties are arguing about. Those are not allowed to be traded
22 off DCM. It's a federal crime to be traded outside designated
23 exchange markets, and so as we say in our briefs, if they're
24 funneled essentially to the CFTC. So there can't be any -- if
25 Kalshi is right -- and their definition we would say is
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