Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 64 of 110
federal regulation of commodity futures trading in the [CFTC]”—to “sepa-
rate the functions of the [CFTC] from those of the [SEC]” and other federal
agencies. Merrill Lynch , 456 U.S. at 386-87. Further, the CEA contains
narrow express-preemption provisions—which confirm that Section
2(a)(1)(A) is not a broad preemption provision. See Freightliner Corp. v.
Myrick , 514 U.S. 280, 289 (1995) (express-preemption provision supports an
inference that Congress did not impliedly preempt state laws outside of that
provision).
The CEA’s express-preemption provisions make clear that preemption
does not extend to all state gaming law. One provision states that the CEA
“shall supersede and preempt the application of any State or local law that
prohibits or regulates gaming” in limited circumstances not applicable here.
7 U.S.C. § 16(e)(2). That provision would be superfluous if the exclusive-
jurisdiction provision already preempted state gaming law. More funda-
mentally, it shows that Congress specified exactly what it wanted to
preempt when it comes to gaming—and it was not all gaming law.
The other express-preemption provision preempts state insurance
law: It says that a swap “may not be regulated as an insurance contract
under the law of any State.” 7 U.S.C. § 16(h)(2). Kalshi essentially wants
the Court to read into the CEA an equivalent provision for gaming, but the
CEA conspicuously does not contain that provision.
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