Case 2:25-cv-00978-APG-BNW Document 105 Filed 10/14/25 Page 11 of 27
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state regulators, to decide what is a swap and whether that swap is contrary to the public interest under the special rule. See 156 Cong. Rec. S5902-01, S5906 (July 15, 2010) (Sen. Lincoln stating that the “Commission [(CFTC)] needs the power to, and should, prevent derivatives contracts that are contrary to the public interest because they exist predominantly to enable gambling through supposed ‘event contracts’”). But the CEA does not expressly delegate to the CFTC the exclusive power to decide what is a swap. Compare Batterton v. Francis , 432 U.S. 416, 430-31 (1977) (evaluating a statute that expressly “authorize[d]” the Secretary of Health, Education, and Welfare the power to define a statutory term through statutory language: “unemployment (as determined in accordance with standards prescribed by the Secretary)” (simplified)), with 7 U.S.C. § 2(a)(1)(A) (granting the CFTC “exclusive jurisdiction” over “accounts, agreements . . ., and transactions involving swaps . . . traded or executed on a contract market designated” by the CFTC). “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison , 1 Cranch 137, 177, 2 L. Ed. 60 (1803); see also Loper Bright Enters. v. Raimondo , 603 U.S. 369, 402 (2024) (“Congress expects courts to handle technical statutory questions.”). Nothing in the CEA takes statutory interpretation away from courts. See 7 U.S.C. § 2(a)(1)(A) (“Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State”). I therefore have the power to interpret the statute. While agency interpretations and fact finding carry weight, I have been presented with no agency fact finding or reasoned interpretation regarding whether these contracts are swaps. See Loper Bright Enters. , 603 U.S. at 394, 402.As relevant here, the CEA defines swaps as “any agreement, contract, or transaction . . . that provides for any purchase, sale, payment, or delivery . . . that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or
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