particular, Sports Contracts are categorically contrary to the public interest and should therefore be prohibited pursuant to the CEA’s “Special Rule.” 6
1. The CFTC may prohibit sports betting that is contrary to state law under the “Special Rule” provision covering “gaming.” The CEA’s “Special Rule” provides that the CFTC may determine that contracts involving certain enumerated categories (which expressly include “gaming”) are contrary to the public interest, and as a result are prohibited from being listed or traded. 7 U.S.C. § 7a-2(c)(5)(C). In particular, the “Special Rule” provides: (i) Event Contracts In connection with the listing of agreements, contracts, transactions, or swaps in excluded commodities that are based upon the occurrence, extent of an occurrence, or contingency . . . by a designated contract market . . . , the [CFTC] may determine that such agreements, contracts, or transactions are contrary to the public interest if the agreements, contracts, or transactions involve— (I) activity that is unlawful under any Federal or State law; (II) terrorism; (III) assassination; (IV) war; (V) gaming; or (VI) other similar activity determined by the [CFTC], by rule or regulation, to be contrary to the public interest. (ii) Prohibition No agreement, contract, or transaction determined by the Commission to be contrary to the public interest under clause (i) may be listed or made available for clearing or trading on or through a registered entity. 7 U.S.C. § 7a-2(c)(5)(C). Thus, Congress clearly intended to prohibit any event contract involving gaming as contrary to the public interest. The CFTC’s implementing regulations, in turn, make the categorical determination that event contracts involving gaming are contrary to the public interest. 7 See 75 Fed. Reg. 67282, 67288–89 (Nov. 2, 2010) 6 Any order, determination, rule, or regulation promulgated by the CFTC to this effect would be expressly limited to federal sports betting and event contracts, and could not disrupt state, local, and tribal sports betting regulatory schemes. 7 On March 25, 2021, Commissioner Quintenz issued a statement in which he challenged the constitutionality of the Special Rule’s delegation of authority to the CFTC to determine whether an events contract is contrary to the public interest. Statement of Commissioner Brian D. Quintenz (accessible here). While it is true that some Supreme Court Justices have expressed an interest in revisiting the nondelegation doctrine, see Gundy v. United States , 588 U.S. 128, 148– 49 (2019) (Alito, J., concurring), the United States Supreme Court has long upheld Congressional delegation of power to executive agencies to regulate in the public interest or to protect the public health. See Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 472 (2001) (“Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air
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