Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 56 of 110
over swaps, options, and futures traded on DCMs means that no State can
regulate them. So if Kalshi were correct, the CFTC would be the Nation’s
sole regulator for sports betting.
That would mean that when Congress added “swaps” (or futures or
options) to the CEA, it took away the longstanding police power of the States
and Tribes to regulate sports betting, see Artichoke Joe’s , 353 F.3d at 737,
and gave it all to the CFTC. And Congress supposedly wanted the CFTC to
decide company-by-company how much sports betting to allow, based on
which DCMs it certifies and which contracts it chooses to review.
And then apparently no one noticed this sea change until 2025—not
even the Supreme Court, which recognized and reinforced the States’ power
to regulate sports betting in Murphy . 584 U.S. at 484. The result would be
that that all sports betting now must be conducted on DCMs, and the li-
censed sportsbooks operating without DCM registrations (which is to say,
all of them) are violating federal law—as are their millions of customers. 1-
ER-18-19; Crypto.com , 2025 WL 2916151, at *9 & n.12. This Court should
not interpret the CEA to produce that absurd result. Griffin v. Oceanic Con-
tractors, Inc. , 458 U.S. 564, 575 (1982).
Kalshi admits (Br. 61) that it would be “implausible” for Congress to
have made the CFTC the Nation’s sports-betting regulator. Yet that is the
necessary consequence of its position. Kalshi argues that States still would
be able to regulate off-exchange sports wagers. Kalshi Br. 61; see Paradigm
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