Case: 25-1922 Document: 73 Page: 23 Date Filed: 08/14/2025
52. And even there, the court primarily analyzed it as express preemp- tion. Id. Kalshi’s other cited case simply noted that an agency “has exclu- sive jurisdiction over ‘transportation by rail carrier.’” Hi Tech Trans, LLC v. New Jersey , 382 F.3d 295, 305 (3d Cir. 2004). It did not say that “ex- clusive jurisdiction” was enough for preemption; rather, the court noted that the statute’s “ regulation of rail carriers preempts state regulation with respect to rail transportation.” Id. And to the extent there was ex- press preemption in both, it was only because the statutes at issue “an- nounce[d] and define[d] the scope of displaced state regulation.” Transcon. Gas , 108 F.4th at 151–52; see 15 U.S.C. § 717r(d)(1); 49 U.S.C. § 10501(b). Everyone agrees that no such express provision exists here. All this is to say that state laws are not field preempted just because the CFTC has “exclusive jurisdiction.” That is neither a concession that the Act “expressly preempts state regulation of trading on” CFTC- regulated exchanges nor an argument that the exclusive-jurisdiction pro- vision forecloses field preemption. Contra Appellee Br. 53. It is simply a recognition of the proper preemption analysis, which the district court failed to conduct. 2. There Is No Comprehensive Federal Scheme To Imply Field Preemption. Without express preemption, field preemption can be implied only where “federal law occupies a ‘field’ of regulation so comprehensively that it has left no room for supplementary state legislation.” Murphy v. NCAA ,
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