Case 3:25-cv-02016-VDO Document 56-1 Filed 01/16/26 Page 14 of 29
conflict with an earlier statute, the question is whether the statute, by implication, has repealed all or, more typically, part of the earlier statute.”); Auburn Hous. Auth. v. Martinez , 277 F.3d 138, 144–45 (2d Cir. 2002) (recognizing the “‘cardinal rule’ that repeal by implication is disfavored ….”). Congress’s intent to repeal must be “clear and manifest.” Epic Sys. , 584 U.S. at 510 (internal quotations omitted). “Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Id. at 515 (internal quotations omitted); see also Garfield , 811 F.3d at 89 (“In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” (quoting Morton v. Mancari , 417 U.S. 535, 550 (1974))). Here, IGRA and the CEA can easily be harmonized by reading the CEA to exclude sports betting, consistent with longstanding CFTC regulations. 1. Kalshi’s sports-betting contracts are not “swaps.” As relevant here, the CEA defines “swap” as “any agreement, contract, or transaction … that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence.” 7 U.S.C. § 1a(47)(A)(ii). Kalshi’s sports-betting contracts simply do not fall under this definition and Congress therefore could not have intended to repeal IGRA. 6
6 Kalshi has previously argued that its preemption argument applies even if its sports-betting contracts are not swaps because they involve “excluded commodities.” But even under that theory, 7 U.S.C. § 2(a) “does not state that the CFTC has exclusive jurisdiction over excluded commodities, which are defined separately from commodities.” Hendrick , 2025 WL 3286282, at *11.
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