USCA4 Appeal: 25-1892
Doc: 16
Filed: 10/15/2025
Pg: 43 of 97
(1947). Senate drafters accordingly “delet ed ” this clause “to assure that
Federal preemption is complete.” 120 Cong. Rec. 30,464 (Sept. 9, 1974)
(statement of Sen. Curtis). The Senate also qualified the state-law savings
clause by clarifying that it applied “except as hereinabove provided” by the
CFTC’s exclusive jurisdiction over on -DCM trading. S. Rep. No. 93-1131, at
31. These changes “ wholly and unequivocally eliminated each of the bases ”
the Supreme Court had previously relied on “ to hold that the CEA did not preempt state regulation. ” Van Wart, supra , at 692-693. They would be incomprehensible if Congress intended to preserve state authority to regulate trading on DCMs. See Sale v. Haitian Ctrs. Council, Inc. , 509 U.S. 155, 168 n.16 (1993) (“ Congress does not intend sub silentio to enact
statutory language that it has earlier discarded” (citation omitted)).
3. Later- enacted provisions confirm that the CFTC’s exclusive
jurisdiction over trading on DCMs preempts state regulation. Following the
1974 amendments, Congress enacted other provisions relevant to the s tates’ role, but each one excludes the right to regulate trading on DCMs. The 1978
amendments authorize state officials to sue over “any act or practice
constituting a violation of any provision of this chapter or any [CFTC] rule.” 7 U.S.C. § 13a-2(1). But states may only enforce the CEA against parties “ other than a [designated] contract market .” Id . (emphasis added).
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