Case: 25-1922 Document: 83 Page: 12 Date Filed: 09/24/2025
Page 11
1
And I think this -- the, as I said, the clear
2 statement rules that I was discussing all point that way, and
3 they feed into our preemption arguments as well. We talk about
4 first the presumption against preemption. This is again
5 something that states have long regulated. It's within our
6 police powers. We have great controls on all of these things
7 around gambling. It's a strongly regulated environment, and
8 again, we've regulated this for hundreds of years.
9
On top of that, we have the congressional acceptance
10 of state gambling laws in nearly every decade since the 1940s.
11 Congress has repeatedly accepted and incorporated state
12 gambling laws into its statutes, and the Supreme Court tells us
13 in Wyeth, when that happens, when Congress is aware of a state
14 scheme, aware of state laws, and nonetheless does not do
15 anything with it, that's a pretty strong indication that
16 there's no preemption, and that's exactly what we have here.
17
What the Supreme Court also says in Wyeth, by the way,
18 is Congress surely would have enacted an express preemption
19 provision if this is something they wanted to do, and they did
20 that here, but not for the transactions that are at issue in
21 our case, not for sports outcome contracts, and certainly not
22 in a way that would allow the federal government to make all
23 casinos in New Jersey felons. So we have them enacting an
24 express preemption provisions for certain gaming laws, not the
25 ones at issue here. The Supreme Court tells us in Cipollone
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