Case: 25-1922 Document: 73 Page: 11 Date Filed: 08/14/2025
sponse is that this is “a matter of CFTC enforcement discretion not im- plicated by this case” because the CFTC could “exempt sportsbooks from the exchange-trading obligation.” Appellee Br. 41. Even if that were true, 3 it is cold comfort for everyone from the Bel- lagio and DraftKings to the local charity running a raffle at the nearby community center; all of them are (in Kalshi’s view) committing a felony. See 7 U.S.C. § 13(a)(2), (5). This does not bode well for Kalshi’s CFTC- exemption theory: either the CFTC did not exempt traditional gambling and sports betting because it does not think “swaps” capture all gambling in the country (as Kalshi claims), or the CFTC is funneling the bingo game at a rural senior-citizen home into its domain (showing the absurd- ity of Kalshi’s position). Either way, the single addition of “swap” is a “wafer-thin reed” on which to rest such “sweeping and consequential au- thority” to control all gambling (including sports wagering) nationwide. West Virginia v. EPA , 597 U.S. 697, 721 (2022). And it is not the “exceed- ingly clear language” Congress must use “if it wishes to significantly alter (refusing “to introduce an exception to the coverage of” another statute “where none is now apparent”). It is much easier to use New Jersey’s sen- sible definition of a swap than to use Kalshi’s limitless definition and graft an atextual exception onto numerous other laws. 3 The CFTC can only exempt transactions that “will be entered into solely between appropriate persons,” and “appropriate persons” seem- ingly does not include consumers placing sports bets. 7 U.S.C. § 6(c)(2)(B)(i); id. § 6(c)(3).
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