Case: 25-1922 Document: 83 Page: 13 Date Filed: 09/24/2025
Page 12
1 that that's a very strong indication that there should be no
2 preemption, and then on top of that, we have the savings
3 clauses that we talk about in our briefs, that they're not
4 divesting federal and state courts of jurisdiction over the
5 usual claims in those courts.
6
And lastly, we have the special rule which
7 incorporates state law in one of the things that the CFTC looks
8 at when they're excluding things, and so when you pile all of
9 those things on top of each other, especially Congress's
10 explicit preemption of certain things, certain state gaming
11 laws, but not the gaming laws at issue here, and the fact that
12 they've repeatedly accepted state gambling laws. There just
13 cannot possibly be a way where Congress preempted especially
14 the field, but really, any preemption in this area, and then --
15
JUDGE CHAGARES: There's a lot of discussion in the
16 briefs as well about conflict preemption, as well.
17
MR. EHRLICH: Yes. And we agree -- excuse me, Your
18 Honor.
19
JUDGE CHAGARES: Sure.
20
MR. EHRLICH: We agree that conflict preemption is
21 something that can apply in the appropriate case, and it just
22 doesn't apply here because federal law is prohibiting the same
23 thing as -- as state law, and in those circumstances, there's
24 almost never going to be conflict preemption. I mean, Kalshi
25 itself admits, and we quote this in page forty-nine of our
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