This Court should therefore reject Kalshi’s boundless interpretation of a “swap” and give effect to both statutes by excluding sports-betting contracts, such as Kalshi’s, from the CEA’s definition of “swap.” Such an interpretation, in any case, is more faithful to the CEA’s statutory language and legislative intent. See 156 Cong. Rec. S5907 (daily ed. Jul. 15, 2010) (statement of Sen. Lincoln) (“It would be quite easy to construct an ‘event contract’ around sporting events such as the Super Bowl, the Kentucky Derby, and Masters Golf Tournament. These types of contracts would not serve any real commercial purpose. Rather, they would be used solely for gambling.”). C. Kalshi’s Theory Does Not Meet the Standard for Implied Repeals. Kalshi’s preemption argument, which relies on its overly broad interpretation of “swap,” must be rejected because it would manufacture an implied repeal of IGRA where none exists. Kalshi cannot meet the heavy burden of proving Congress intended to repeal IGRA because there is a reasonable interpretation of the CEA that gives full effect to both statutes: the CEA’s definition of “swap”—and thus the CFTC’s jurisdiction over such transactions—simply does not extend to Kalshi’s sports bets. Both the Supreme Court and Sixth Circuit apply the “strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.” Epic Sys. Corp. v. Lewis , 584 U.S. 497, 410 (2018) (internal quotations omitted); see also U.S. v. Bricker , 135 F.4th 427, 447 (6th Cir. 2025) (quoting Epic Sys. Corp. ); Tyrrell v. Norfolk Southern Ry. Co. , 248 F.3d 517, 523 (6th Cir. 2001) (recognizing that statutory “repeals by implication are disfavored ….”). Congress’s intent to repeal must be “clear and manifest.” Epic Sys. , 584 U.S. at 510 (internal quotations omitted); see also Gallenstein v. U.S. , 975 F.2d 286, 291 (6th Cir. 1992). “Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not,
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Case 3:26-cv-00034 Document 40-1 Filed 01/23/26 Page 8 of 22 PageID #: 445
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