Case 2:25-cv-00978-APG-BNW Document 75 Filed 09/15/25 Page 12 of 20
Under well-settled law, Congress may not delegate its legislative powers absent an
1 2 3 4 5 6 7 8 9
“intelligible principle” to guide the exercise of discretion. Gundy v. United States , 588 U.S. 128,
135 (2019) (citing J.W. Hampton, Jr., & Co. v. United States , 276 U.S. 394, 409 (1928)). No
intelligible principle exists where “‘Congress ha[s] failed to articulate any policy or standard’ to
confine discretion.” Id . (quoting Mistretta v. United States , 488 U.S. 361, 373, n.7 (1989)). While
the Supreme Court routinely upholds congressional delegations of power to federal agencies, it
pays particular attention when those delegations are to private entities. See, e.g. , Carter v. Carter
Coal Co. , 298 U.S. 238, 311 (1936). Recently, in FCC v. Consumers’ Research , 606 U.S. ___,
145 S. Ct. 2482 (2025), the Supreme Court reinforced its nondelegation precedent, finding that the
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
permissibility of a private delegation depends upon whether the agency retains oversight and
ultimate decision-making authority over the private entity’s actions. In that case, the Supreme
Court upheld the delegation to a private entity, determining that it played merely “an advisory role”
and the final decision-making authority rested with the agency. Id. at 2508.
Here, the self-certification provisions empower private, for-profit entities (like Crypto.com)
to define, structure, and launch contracts, which affects the national economy and infringes upon
tribal sovereignty. 10 Moreover, the self-certification provisions provide no mechanism for advance public comment, requirement of CFTC findings or review, mandatory agency oversight, or
standards by which the CFTC may implement its discretion whether to stay a self-certification.
10 Relatedly, Crypto.com’s arguments also raise serious issues under the Major Questions Doctrine. See, e.g. , West Virginia v. Env't Prot. Agency , 597 U.S. 697, 721 (2022) (citing FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 160 (2000)) (explaining that Congress would not delegate powers of vast economic and political significance in a cryptic fashion); Nebraska v. Su , 121 F.4th 1, 14 (9th Cir. 2024) (noting a two-prong framework to analyze the major questions doctrine). Crypto.com’s interpretation of the CEA would represent unheralded power for the CFTC and private entities to authorize gaming on Indian lands under a long-extant statute. This interpretation would also have both vast economic and political significance, given Congress’s stated goal of facilitating tribal self-determination through regulated gaming on Indian lands and the fact that the tribal gaming industry generates more than $43 billion each year. See 25 U.S.C. § 2702(1); Press Release, NIGC Announces Record $43.9 Billion in FY2024 Gross Gaming Revenues (July 31, 2025) (available at https://www.nigc.gov/nigc-announces-record-43-9-billion- in-fy-2024-gross-gaming- revenues/#:~:text=MILWAUKEE%2C%20WI.%2C%20July%2031,over%20the%20previous%20 fiscal%20year).
- 12 -
Made with FlippingBook - Online catalogs