USCA4 Appeal: 25-1892
Doc: 16
Filed: 10/15/2025
Pg: 54 of 97
resolving them: Congress provided that “ the Commission may determine ”
that event contracts involving “gaming” “are contrary to the public interest.”
7 U.S.C. § 7a-2(c)(5)(C)(i)(V) (emphasis added). The CFTC has declined to
subject Kalshi ’ s sports-event contracts to public-interest review, which
reflects “ the CFTC ’ s exercise of its discretion and implicit decision to permit them. ” Flaherty , 2025 WL 1218313, at *6.
Maryland gives regulators unfettered discretion to ban certain wagers
as “contrary to public policy.” Md. Code Ann., State Gov’t § 9-1E-04(b)(6)(ii)
(2022). Allowing Maryland — not to mention 49 other states — to substitute
its own public-interest judgment for the CFTC’s would “interfer[e] with the
method by which the federal statute was designed to reach its goals.” Nazarian , 753 F.3d at 478 (quotation omitted). And allowing 50 different states to subject Kalshi to criminal penalties for offering contracts that the CFTC has allowed would not only “undermine [] the congressional calibration of force, ” Crosby , 530 U.S. at 380 — it would r ender the CFTC’s
judgment utterly meaningless.
States may not take actions that “would disturb and conflict with the
balance embodied ” in a discretionary judgment Congress delegated to a federal agency. California v. FERC , 495 U.S. 490, 506 (1990). When
Congress entrusts a decision to an agency’s discretion, “ it intends the agency
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