After Appeals Court Mandate, Trump-Era Wire Act Opinion Likely Hanging by a Thread

Posted on: March 21, 2021, 03:13h. 

Last updated on: July 5, 2021, 01:18h.

The federal government’s case seeking to redefine the Wire Act may not have ended this past week. However, a step taken by an appellate panel serves as a good indication of where it’s heading.

Wire Act
Merrick Garland (center) recites the oath of office as he is sworn in to become the 86th attorney general of the US on March 11 in Washington, DC. Garland now leads a Justice Department that must consider what action, if any, to take after an appeals court ruled against a Trump Administration-era opinion on the Wire Act. (Image: US Justice Department)

The US First Circuit Court of Appeals issued a one-sentence mandate last week regarding the appeal the Trump Administration’s Justice Department made involving its case against the New Hampshire Lottery Commission. That came 55 days after the court ruled in favor of the lottery, which challenged an opinion Justice officials considered applying to the now 60-year-old law.

Three years ago, the Justice Department published an opinion that sought to expand the scope of the law. That interpretation claimed the law covered more than just the transmission of sports bets across state lines.

It led to the New Hampshire Lottery challenging the opinion. Other lotteries soon filed briefs in support, out of concern an expanded ruling threatened multi-state lottery games, such as Powerball and Mega Millions.

What Will Garland Do?

The appeals court ruled coincidentally on the same day President Biden took office. On March 11, just days before the appeals court issued the mandate, court officials updated the case to show recently sworn-in Attorney General Merrick Garland as the lead defendant.

Legal experts have expected the new administration to either let the case go, or potentially issue a new opinion that sets aside the 2018 draft. Prior to that, the Obama Administration’s Justice Department issued an opinion in 2011 that stated the federal law applied only to sports betting. That opinion came at a time when lotteries in New York and Illinois raised questions about the use of out-of-state processors to handle in-state online sales.

Biden, of course, served as vice president for both terms of the Obama Administration.

A spokesperson for the New Hampshire Lottery told Friday that the organization is keeping an eye on the case.

The New Hampshire Lottery has spoken with the New Hampshire Attorney General’s office and it is our understanding that the appeal process is not officially over yet,” the spokesperson said. “We will continue to monitor any developments in the case moving forward.”

According to information from the Congressional Research Service, a party has 90 days from the appeals court final ruling to ask the US Supreme Court to review the case. If four of the nine justices concur, the court will take on the case.

Not Just Lotteries Affected by Wire Act Opinion

Lotteries aren’t the only ones interested in the case. The Wire Act ruling has also garnered interest from the online poker community as well.

Currently, only Delaware, Nevada, and New Jersey participate in a shared liquidity agreement that allows players from those states to compete against each other. However, Pennsylvania law allows the state to join the multi-state compact, and Michigan Gov. Gretchen Whitmer (D) signed a shared liquidity bill into law earlier this year.

Those two states, with a combined population of about 23 million people, would allow the multi-state market to grow substantially. Lawmakers in Illinois, a state with a population of more than 12 million, also have filed a bill this year to allow iGaming in the state.