Case: 25-7187, 02/17/2026, DktEntry: 37.2, Page 23 of 41
D. Congress Embraced Preemption as to Swaps Transactions in the Dodd Frank Act. In the wake of the 2008 financial crisis, Congress created a framework within the CEA for the on-exchange execution, clearing and reporting of vast portions of the previously “OTC” swaps markets. In the 2010 Dodd-Frank Act, Congress expressly extended the CFTC’s “exclusive jurisdiction” to encompass “transactions involving swaps.” 6 The Dodd-Frank Act also added a new subsection, 2(d), which specifies that certain CEA provisions do not apply to swaps. Section 2(d) eliminated the concurrent jurisdiction of states as to off- exchange swap transactions. The authority for state regulation of swaps (whether on- or off-exchange) is now based on Section 12(e)(2), which applies to any swap that the CFTC may exempt pursuant to Section 4(c). This new preemption model is consistent with the one originally created in 1974 for commodity futures, except this model was even broader. Congress did not carve out a role for states to regulate off-exchange swaps through a grant of concurrent jurisdiction, despite having done so for off-exchange commodity futures in 1982.
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6 See Pub. L. No. 111-203, 124 Stat. 1376 (2010); 7 U.S.C. § 2(a)(1)(A).
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