Case: 25-1922 Document: 73 Page: 29 Date Filed: 08/14/2025
lecting examples). Plus, Kalshi admits that the CFTC suspended a com- petitor’s sports-related contracts but “never made a similar request to Kalshi.” JA29. So New Jersey’s enforcement decisions do not create dis- uniformity any more than the CFTC’s own enforcement decisions do. Relatedly, the CFTC’s enforcement discretion itself cannot preempt anything. Contra Appellee Br. 31–32. Under Supreme Court precedent that Kalshi disregards, the “Supremacy Clause gives priority to ‘the Laws of the United States,’ not the criminal law enforcement priorities or pref- erences of federal officers.” Garcia , 589 U.S. at 212. So the “mere fact that state laws” overlap with federal provisions (and have corresponding fed- eral enforcement discretion) “does not even begin to make a case for con- flict preemption.” Id. at 211. Of course, Kalshi is violating both state and federal law by listing gaming event contracts market without “a sports wagering license.” See N.J. Stat. Ann. § 5:12A-11(c); 17 C.F.R. § 40.11(a)(1). But it makes no difference that New Jersey is attempting to enforce its law while the CFTC is not; “the possibility that federal en- forcement priorities might be upset is not enough to provide a basis for preemption.” Garcia , 589 U.S. at 212. As is usually the case where “fed- eral and state laws overlap,” New Jersey’s enforcement “is entirely con- sistent with federal interests” laid out in the Act. Id. And there are no circumstances here that would convert New Jer- sey’s complementary gambling laws into an unconstitutional conflict. For instance, the State does not “threaten[] to seek criminal penalties well
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