Case: 25-1922 Document: 73 Page: 15 Date Filed: 08/14/2025
operation of state law in a field of federal interest” but leaves it in place, the “case for federal pre-emption is particularly weak.” Wyeth , 555 U.S. at 575. That is fatal here: from the Gambling Ships Act of 1949 to the Wire Act of 1961 to the Indian Gaming Regulatory Act of 1988 to the Unlawful Internet Gaming Enforcement Act of 2006 (and all laws in be- tween), Congress has not only accepted but incorporated state gambling laws. Appellants’ Br. 28–31 . In fact, four years after creating the CFTC, Congress made clear that States “have the primary responsibility for de- termining what forms of gambling may legally take place within their borders.” 15 U.S.C. § 3001(a)(1). Kalshi has no real answer. In the face of federal statute after fed- eral statute accepting and incorporating state gambling laws, Kalshi’s only response (at 52) is that the CFTC has exclusive jurisdiction over designated contract markets, so “preemption exists” only for “trading on” those markets and “leav[es] state gambling laws operative in all other applications.” In other words, Kalshi cannot deny Congress wanted to leave state gambling regulation in place generally, so it must argue that the Act does not actually upend state regulation. That response has two problems. First, as explained above, Kalshi’s reading really does upend state laws. After all, the CFTC’s “exclusive jurisdiction” covers not just “swaps” on regulated exchanges but also “swaps” on “any other board of trade,
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