Case: 25-1922 Document: 73 Page: 12 Date Filed: 08/14/2025
the balance between federal and state power.” Sackett v. EPA , 598 U.S. 651, 679 (2023). Again, a better interpretive path is available: something is a “swap” when the “event or contingency” is inherently “financial, economic, or commercial” in nature. Appellants’ Br. 22–24. Under that definition, the only qualifying sports-related transactions would be based on events that are connected to a financial instrument or measure, like the price of foot- balls or the Eagles’ revenue. 4 Appellants’ Br. 25. But neither would be an unlicensed “sports pool” under New Jersey law because they are not wa- gers on “any portion” of an actual “sports event.” N.J. Stat. Ann. § 5:12A- 10. So traditional sports bets (and other forms of gambling) would be largely left to the States, while the CFTC would monitor the financial- related transactions at the heart of its authority. This gives effect to Congress’s broad language and statutory context without Kalshi’s absurd consequences. Take the remainder of the statu-
4 Kalshi cites (at 39) the CFTC’s enumerated exclusions for certain “consumer and commercial agreements” to try to allay concerns over the sweeping impact of its definition. But these exclusions actually disprove Kalshi’s proposed definition because they are all contracts based on some financial measure. See Further Definition of “Swap , ” 77 Fed. Reg. 48,208, 48,246 (Aug. 13, 2012) (listing consumer loans with variable rates, lease or mortgage agreements, and agreements with an interest rate cap).
6
Made with FlippingBook - Online catalogs