Case: 25-1922 Document: 83 Page: 6
Date Filed: 09/24/2025
Page 5
1 end?
2
MR. HAVEMANN: Kalshi [cal-she] is great.
3
JUDGE CHAGARES: All right. Will do. Thank you.
4 Great.
5
MR. EHRLICH: Easier to say.
6
JUDGE CHAGARES: Okay. All right. We'll do. Thank
7 you. I'm so sorry. You may proceed.
8
MR. EHRLICH: Thank you, Your Honor. For three
9 independently sufficient reasons, any one of which is enough to
10 rule for the State, this Court should reverse the decision
11 below. First, what Kalshi offers is not a swap, so it falls
12 outside the Commodity Exchange Act in the first place.
13
Second, there can't be preemption here because
14 Congress specifically declined to preempt the type of state
15 gambling laws at issue here while preempting others, and
16 Congress has time and again affirmed the state's regulation of
17 gambling within their borders, a choice that the Supreme
18 Court's decision in Wyeth makes clear is incompatible with
19 preemption.
20
And third, the standard preemption analysis express,
21 field, and conflict also do not get Kalshi to preemption. For
22 any or all of those reasons this Court should reverse.
23
I'd like to start with the Commodity Exchange Act's
24 definition of swaps, and quite simply, Your Honor, the Congress
25 did not intend a massive sea change in gambling regulation when
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