USCA4 Appeal: 25-1892
Doc: 44
Filed: 12/22/2025
Pg: 17 of 39
Third, Kalshi’s theory that it can preempt state and federal gaming law merely by self-certifying that its contracts comply with the CEA and CFTC regulations violates the private non-delegation doctrine. The Court should avoid an interpretation of the CEA that raises such serious constitutional issues. ARGUMENT The State’s brief sets out textual reasons for rejecting Kalshi’s interpretation of the CEA. The Tribal Amici concur with those arguments. But even if Kalshi’s interpretation were plausible (it is not), the canon against implied repeal, the Indian canons of construction, the major questions doctrine, and the canon of constitutional avoidance foreclose it. I. Congress Did Not Impliedly Repeal IGRA. Congress does not silently repeal comprehensive and longstanding statutory schemes. Yet Kalshi argues that by defining a single term—“swaps”—within a statute whose entire purpose is to address the risk, discovery, and dissemination of commodity prices, 7 U.S.C. § 5(a)–(b), Congress intended to nullify IGRA and transfer all authority over sports-betting 5 (and potentially other kinds of class III
5 Kalshi also suggests that its sports-event contracts are not gaming because there is no betting against the “house.” Appellant Br. at 18–19, ECF No. 16. Not so. A “house” is not a necessary element of gaming. For example, pari-mutuel wagering—a type of betting system where all bets or wagers are pooled and players bet against each other rather than a “house”—is considered gaming. See
9
Made with FlippingBook - Online catalogs