Case: 25-1922 Document: 73 Page: 17 Date Filed: 08/14/2025
subject to the rules of a registered entity or exempt board of trade under the Commodity Exchange Act,” 31 U.S.C. § 5362(1)(E)(ii), Kalshi claims (at 42) this “exclusion underscores Congress’s recognition of the CFTC’s exclusive jurisdiction.” Quite the opposite. The statute carves out a num- ber of transactions, both regulated and unregulated. See 31 U.S.C. § 5362(1)(E). This was simply meant to separate what Congress consid- ered to be “gambling” from what Congress considered to be “bona fide business transactions such as securities trading or buying or selling in- surance contracts.” H.R. Rep. No. 109-412, pt. 1, at 17 (2006). That says nothing about Congress’s understanding of the CFTC’s jurisdiction or whether state gambling laws—which Congress clearly meant to incorpo- rate—can regulate those same transactions. See Appellants’ Br. 28–31. Congress’s “certain awareness” of these state laws and its “silence” or outright acceptance of them “is powerful evidence that Congress did not intend” CFTC “oversight to be the exclusive means of” preventing unlawful gambling. Wyeth , 555 U.S. at 575. “If Congress thought” state gambling laws hampered the CFTC’s ability to oversee regulated mar- kets, “it surely would have enacted an express pre-emption provision at some point.” Id. at 574. Yet Congress actually did expressly preempt some state laws—including other state gambling laws—without preempting those at issue, “impl[ying] that matters beyond that reach are not pre-empted.” Cipollone v. Liggett Grp. , 505 U.S. 504, 517 (1992); Martin , 2025 WL 2194908, at *8–9; Appellants’ Br. 32.
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