Case 2:25-cv-01541-APG-DJA Document 32 Filed 09/30/25 Page 13 of 21
Court upheld the delegation to a private entity, determining that it played merely “an advisory role”
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and the final decision-making authority rested with the agency. Id. at 2508.
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Here, the self-certification provisions empower private, for-profit entities (like Kalshi) to
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define, structure, and launch contracts, which affects the national economy and infringes upon
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tribal sovereignty. 12 Moreover, the self-certification provisions provide no mechanism for advance public comment, requirement of CFTC findings or review, mandatory agency oversight, or
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standards by which the CFTC may implement its discretion whether to stay a self-certification.
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Given self-certified contracts may be listed for trading with virtually no review period, see 17
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C.F.R. § 40.2(a), and neither Kalshi nor Robinhood is not subject to any meaningful government
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supervision, these provisions are invalid and the CFTC abdicates its final decision-making
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authority. 13 This point is emphasized by the fact that Robinhood is not self-certifying its own sports event contracts, but rather relying on Kalshi’s certifications as a DCM. Robinhood’s gaming activity is therefore even further removed from government oversight. 14
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12 Relatedly, Robinhood’s arguments also raise serious issues under the Major Questions Doctrine. See, e.g. , West Virginia v. Env't Prot. Agency , 597 U.S. 697, 721 (2022) (citing FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 160 (2000)) (explaining that Congress would not delegate powers of vast economic and political significance in a cryptic fashion); Nebraska v. Su , 121 F.4th 1, 14 (9th Cir. 2024) (noting a two-prong framework to analyze the major questions doctrine). Robinhood’s interpretation of the CEA would represent unheralded power for the CFTC and private entities to authorize gaming on Indian lands under a long-extant statute. This interpretation would also have both vast economic and political significance, given Congress’s stated goal of facilitating tribal self-determination through regulated gaming on Indian lands and the fact that the tribal gaming industry generates more than $43 billion each year. See 25 U.S.C. § 2702(1); Press Release, NIGC Announces Record $43.9 Billion in FY2024 Gross Gaming Revenues (July 31, 2025) (available at https://www.nigc.gov/nigc-announces-record-43-9-billion- in-fy-2024-gross-gaming- revenues/#:~:text=MILWAUKEE%2C%20WI.%2C%20July%2031,over%20the%20previous%20 fiscal%20year). 13 In her recent Farewell Address, CFTC Commissioner Kristin N. Johnson warned in her remarks that “we have too few guardrails and too little visibility into the prediction market landscape.” Farewell Address of Commissioner Kristin N. Johnson (Sept. 3, 2025) (available at https://www.cftc.gov/PressRoom/SpeechesTestimony/opajohnson25?utm_source=substack&utm_ medium=email). 14 In her Farewell remarks, Commissioner Johnson also warned about “rent or buy” licensing schemes that Robinhood and others have implemented:
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