A coalition of 40 state attorneys general led by Nevada AG Aaron Ford and Utah AG Derek Brown, a separate group of 39 states plus the District of Columbia, 30 Indian tribes, 11 tribal associations, and former CFTC and SEC Chairman Gary Gensler have filed amicus briefs in the U.S. Court of Appeals for the Sixth Circuit opposing Kalshi’s effort to establish federal preemption over state gaming laws, with a combined oral arguments hearing in the underlying Kalshi v. Ohio Casino Control Commission case scheduled for July 30.
Kalshi filed suit against the Ohio Casino Control Commission and Ohio AG Dave Yost last October, seeking to block what it characterised as a planned state enforcement action against its sports-event contracts. A U.S. District Court judge denied Kalshi’s request for a preliminary injunction in March, pushing the case to the Sixth Circuit – a court whose jurisdiction already encompasses a conflicting ruling, given that a Tennessee district court granted Kalshi a temporary injunction against state authorities in February.
The 40-state coalition, which filed on June 11, directly attacked the statutory foundation of Kalshi’s preemption theory. The attorneys general wrote that the argument rests on an “unrealistic premise: that, when responding to the 2008 financial crisis, Congress quietly chose to make sweeping changes to this country’s gambling laws,” and called on the Sixth Circuit to confirm that “Congress did not sneak sports-gambling preemption into the Dodd-Frank Act.” The 39-state group filed separately in support of Ohio’s position in the same court.
Gensler’s amicus brief carries unusual weight given his direct involvement in the Dodd-Frank legislative process. He wrote that Kalshi’s reading of the Commodity Exchange Act – under which encompassing event contracts within the statutory definition of swap would effectively make the CFTC a nationwide sports betting regulator – is flatly wrong: “The answer – from someone who was there – is that Congress did nothing of the sort … Nowhere in the Executive Branch’s list of priorities, in Amicus’s 54 appearances before Congress, in any statement of a member of Congress, or in the text of Dodd-Frank was there any indication Congress sought to revise sports betting regulation.”
The tribal filings introduce a distinct but reinforcing legal theory. The 30 tribes and 11 associations filing in the Sixth Circuit argued that the CFTC’s preemption position would “undermine decades of federal law” and poses an “existential” threat to tribal economies and sovereignty – a framing that invokes IGRA’s Class III gaming exclusivity framework and the carefully negotiated tribal-state compacts that underpin it. A separate tribal coalition including the National Congress of American Indians, the California Nations Indian Gaming Association, and 30 federally recognized tribes – among them the Seminole Tribe – filed in the CFTC’s parallel lawsuit against New York state authorities, warning that the agency’s theory would “undermine the Tribal-State Gaming Compacts between the New York Tribes and the State” and allow prediction markets to operate on Indian lands contrary to the tribes’ own regulatory interests.
The filings arrive as the CFTC has simultaneously escalated its own litigation posture. The agency filed its own submission in the Sixth Circuit supporting Kalshi and has pursued enforcement actions against multiple states asserting exclusive federal jurisdiction over event contract markets – a posture the CFTC extended to New Mexico earlier this month when it filed suit in federal district court seeking to block the state from applying its gambling laws to CFTC-registered designated contract markets. Nevada, which is co-leading the multi-state amicus coalition in the Sixth Circuit, has simultaneously pursued contempt proceedings against Kalshi over alleged geofencing failures in violation of a state court injunction – and a Nevada district court has separately blocked Polymarket from operating in the state, underscoring how aggressively the state intends to hold the line against prediction market incursion.
The Sixth Circuit is not the only appellate venue shaping this fight. The Third Circuit is separately hearing New Jersey’s challenge to Kalshi, where a coalition of 34 attorneys general and approximately 60 tribal entities have also filed amicus briefs. With appeals pending across the Third, Sixth, and Ninth Circuits – the last of which will address the CFTC’s exclusive jurisdiction claims in a separate proceeding – the open question market watchers are now tracking is whether conflicting circuit outcomes force the Supreme Court to resolve the scope of CEA preemption over state gaming law before any single jurisdiction can settle it on the merits.
Petra Vanhoof has spent the better part of a decade following the shifting tides of gambling regulation across Europe and beyond. She came up through the compliance side of the industry before pivoting to writing, which gives her a grounded, no-nonsense perspective on the rules, loopholes, and political maneuvering that shape how operators actually do business. She is particularly drawn to the gap between what regulators say and what the market ends up doing in response.