Case 1:25-cv-12578-RGS Document 41-1 Filed 10/16/25 Page 11 of 24
which guards precisely the type of unchecked, privately exercised regulatory power that Robinhood relies on to list and trade its sports event contracts on Kalshi’s exchange. The CEA establishes a self-certification process that permits registered entities to introduce new financial instruments, including event contracts, without prior regulatory approval. This scheme permits private entities, like Kalshi, to exercise extraordinary regulatory authority—approving, implementing, and launching nationwide sports betting—without any meaningful federal oversight. While the Supreme Court routinely upholds congressional delegations of power to federal agencies, it pays particular attention when those delegations are to private entities. See, e.g. , Carter v. Carter Coal Co. , 298 U.S. 238, 311 (1936). Recently, in FCC v. Consumers’ Research , 606 U.S. ___, 145 S. Ct. 2482 (2025), the Supreme Court reinforced its nondelegation precedent, finding that the permissibility of a private delegation depends upon whether the agency retains oversight and ultimate decision-making authority over the private entity’s actions. In that case, the Supreme Court upheld the delegation to a private entity, determining that it played merely “an advisory role” and the final decision-making authority rested with the agency. Id. at 2508. Here, the self-certification provisions empower private, for-profit entities (like Kalshi) to define, structure, and launch contracts, which affects the national economy and infringes upon
tribal sovereignty. 9 Moreover, the self-certification provisions provide no mechanism for
9 Relatedly, Robinhood’s arguments also raise serious issues under the Major Questions Doctrine. See, e.g. , West Virginia v. Env't Prot. Agency , 597 U.S. 697, 721 (2022) (citing FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 160 (2000)) (explaining that Congress would not delegate powers of vast economic and political significance in a cryptic fashion); Nebraska v. Su , 121 F.4th 1, 14 (9th Cir. 2024) (noting a two-prong framework to analyze the major questions doctrine). Robinhood’s interpretation of the CEA would represent unheralded power for the CFTC and private entities to authorize gaming on Indian lands under a long-extant 11
Made with FlippingBook - Online catalogs