Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 62 of 110
Kalshi’s position is that once it self-certifies a contract, that contract
is a commodity derivative under the CEA, and if the CFTC fails to act on it,
then Kalshi’s determination is binding on everyone —including this Court.
That approach runs roughshod over the authority of the federal courts, see
Marbury , 5 U.S. at 177, and runs afoul of the private non-delegation doc-
trine, which prevents private parties from exercising federal authority
“without an agency’s say-so,” FCC v. Consumers’ Rsch. , 606 U.S. 656, 695
(2025); see Carter v. Carter Coal Co. , 298 U.S. 238, 311 (1936).
B. The CEA Does Not Preempt State Gaming Law Even if Kalshi’s contracts qualify as commodity derivatives within the
CFTC’s jurisdiction, the CEA does not preempt all state regulation of them.
Courts “start with the assumption that the historic police powers of
the States were not to be superseded by [federal law] unless that was the
clear and manifest purpose of Congress.” Medtronic , 518 U.S. at 485 (inter-
nal quotation marks omitted). Because gaming is a traditional area of state
regulation—and delegating responsibility for sports betting to a federal
agency would raise a major question—Congress would need to clearly state
that intent. See id. ; West Virginia , 597 U.S. at 716.
Kalshi does not argue that the CEA expressly preempts Nevada gam-
ing law. And nothing in the CEA provides the necessary clear intent to
establish field or conflict preemption.
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