Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 67 of 110
The CFTC has recognized that it does not “ha[ve] the statutory man-
date nor specialized experience appropriate to oversee” gaming. 89 Fed.
Reg. at 48976. It is not plausible to think that Congress intended for the
CFTC to act as a gaming regulator—much less as the Nation’s exclusive
sports-betting regulator—without giving the CFTC the basic tools of gaming
regulation. Such a delegation also would run afoul of the nondelegation
doctrine because Congress provided no “intelligible principle” to guide the
regulation of gaming. Consumers’ Rsch. , 606 U.S. at 673.
Kalshi contends (Br. 47) that the Special Rule shows an intent to bring
gambling under the jurisdiction of the CFTC. That is incorrect. The Special
Rule is a safety-valve provision that allows the CFTC to require DCMs to
delist contracts that are contrary to the “public interest,” not a broad au-
thorization to regulate gaming. 7 U.S.C. § 7a-2(c)(5)(C)(i) . Notably, the
Special Rule is not limited to gaming, but also applies to contracts involving
“war,” “assassination,” and “terrorism.” Id. It does not show that Congress
intended for the CFTC to regulate gaming generally, any more than war,
assassinations, or terrorism. Further, the Special Rule allows the CFTC to
bar contracts involving conduct that is “unlawful” under “State law.” Id.
That “reflects an affirmative intent to preserve state laws,” rather than sup-
plant them. Martin , 793 F. Supp. 3d at 680.
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