Case 1:25-cv-01283-ABA Document 26 Filed 05/09/25 Page 24 of 36
v.
Congress Does Not Hide Elephants in Mouseholes.
Congress does not “hide elephants in mouseholes.” Whitman v. Am. Trucking
Ass’ns., Inc. , 531 U.S. 457, 468 (2001); see also Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund , 583
U.S. 416, 431 (2018) (“Congress does not make ‘ radical – but entirely implicit – change[s ]’
through ‘ technical and conforming amendments. ’”) . Reading one of several possible definitions
of “swap” to preempt the longstanding regime of leaving regulation of sports gaming contracts to
the States and Tribes would violate this precept.
When Congress passed the Dodd-Frank Act, it sought to remedy regulatory failures
believed to be at the heart of the 2008 Financial Crisis. See supra at 7. Sports betting was not at
the heart of the financial crisis; at the time Dodd-Frank was passed, sports wagering was prohibited
by the Wire Act and IGRA and banned in 46 states pursuant to PASPA. Murphy , 584 U.S. at 453.
Dodd-Frank could not have contemplated the addition of wagering contracts to its definition of
swaps with no mention of the Wire Act, IGRA or PASPA’s exis tence. By adding “swaps” to CEA
jurisdiction, Congress cannot be understood to be legalizing and centralizing sports betting under
the authority of the CEA and, in the process repealing in part or in whole the Wire Act, IGRA, and
PASPA, and preempting num erous states’ gaming laws.
c. Legislative History Confirms that Sports Gaming Contracts Are Not Swaps.
The legislative history of the Dodd-Frank Act confirms that Congress did not intend to hide
the sports gaming elephant in the mousehole of the “swaps” def inition. See Dodd-Frank Wall
Street Reform and Consumer Protection Act, Pub. L. No. 111-203, Title VII, Part II, § 722, 124
Stat. 1376, 1672; DTCC Data Repository , supra, 25 F. Supp. 3d at 9. Kalshi repeatedly relies on
the legislative history of the Commodity Futures Trading Commission Act of 1974, Pub. L. No.
93-463, 88 Stat. 1389 , which added the exclusive jurisdiction” language to Section 2(a)(1)(A) for
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