Case: 25-1922 Document: 73 Page: 14 Date Filed: 08/14/2025
their police powers, so Kalshi must overcome “the assumption that the historic police powers of the States were not to be superseded by the Fed- eral Act unless that was the clear and manifest purpose of Congress.” 6 Sikkelee v. Precision Airmotive Corp. , 822 F.3d 680, 687 (3d Cir. 2016); see Appellants’ Br. 26–28. And, critically, “the intent of Congress is the ultimate touchstone of preemption analysis.” Pennsylvania v. Navient Corp. , 967 F.3d 273, 288 (3d Cir. 2020). Here, under any possible theory, Kalshi cannot meet its heavy burden to establish that Congress clearly preempted New Jersey’s gambling laws. The text and structure of federal law foreclose preemption. And none of the three forms of preemption— express, field, or conflict—apply. A. The Text And Structure Of Federal Law Foreclose Kalshi’s Preemption Theories. Kalshi’s preemption theories fail because Congress—despite enact- ing landmark gambling legislation nearly every decade since the 1940s— has repeatedly confirmed that the States retain their traditional role in regulating gambling. Where “Congress has indicated its awareness of the 6 Kalshi attempts to escape this presumption by arguing that the federal government has been concerned with derivatives trading for over a century. Appellee Br. 52. “But the presence of federal regulation, how- ever longstanding, does not by itself defeat the application of the pre- sumption.” Farina v. Nokia Inc. , 625 F.3d 97, 116 (3d Cir. 2010); Wyeth v. Levine , 555 U.S. 555, 565 n.3 (2009) (applying presumption despite federal regulation “for more than a century”); KalshiEX LLC v. Martin , 2025 WL 2194908, at *5–6 (D. Md. Aug. 1, 2025) (applying presumption over Kalshi’s objections), appeal docketed , 25-1892 (4th Cir. Aug. 6, 2025).
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