Tennessee, have established regulatory schemes for sports betting under their traditional police powers. See Tenn. Code Ann. § 4-49-103. But that has no bearing on whether Congress’s CEA amendments in 2010 had the effect of obliterating PASPA (and IGRA), and the state laws on which it relied. Kalshi’s position that Congress legalized sports betting in 2010 would have certainly come as a surprise to the Supreme Court and litigants in Murphy—none of whom seemed to think that the state prohibition at issue had actually been preempted years earlier. In holding PASPA unconstitutional, the Supreme Court made no suggestion that Congress had already preempted all state gaming laws eight years earlier. Murphy , 584 U.S. at 479–80. To the contrary, the majority opinion concluded with an observation utterly incompatible with Kalshi’s contention: “The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” Id. at 486. In other words, Kalshi’s deregulatory elephant was hidden in a statutory mousehole far too small for the Supreme Court to notice when deciding whether sports betting would be legal. Ignoring history, context, and common sense, Kalshi presents an alternate reality in which a statutory scheme whose scope is limited to addressing the risk, discovery, and dissemination of commodity pricing information, see 7 U.S.C. § 5(a)–(b), exclusively governs nationwide sports betting, including that occurring on Indian lands. Kalshi therefore creates a world where Congress repealed the comprehensive regulatory scheme set forth in IGRA, similar structures set up by state law, all tribal-state gaming compacts, and the federal policy requiring states to prohibit sports betting, as codified in PASPA. And Kalshi incredibly argues all of this happened without even a whisper of legislative intent.
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NSH 3426338.2
Case 3:26-cv-00034 Document 40-1 Filed 01/23/26 Page 18 of 22 PageID #: 455
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