USCA4 Appeal: 25-1892
Doc: 44
Filed: 12/22/2025
Pg: 31 of 39
296–97 (internal citations and quotations omitted). There can be no doubt that Kalshi’s preemption argument presents such a question. In effect, Kalshi contends that the 2010 CEA amendments displaced both state and tribal gaming regulations, legalized sports betting nationwide, and placed sports betting under the exclusive jurisdiction of the CFTC, all at a time when federal law prohibited states from legalizing sports betting themselves. Kalshi’s preemption argument thus bears many of the “hallmarks that should send [the Court] searching for clear authorization from Congress.” Id. at 297. First, “Congress must be explicitly clear if it wishes to ‘alter[ ] the federal- state framework by permitting federal encroachment upon a traditional state power.’” Id. at 298 (quoting Solid Waste Agency v. U.S. Army Corps of Eng’rs , 531 U.S. 159, 172–73 (2001)). And, as this Court has recognized, “regulating gambling is at the core of the state’s residual powers as a sovereign in our constitutional scheme.” WV Ass’n of Club Owners , 553 F.3d at 302. Moreover, a clear statement from Congress is especially needed when “Congress has repeatedly confirmed that states have the primary authority to regulate” that area of the law. Capt. Gaston LLC , 76 F.4th at 298. Gambling is such an area. As the Supreme Court noted in Murphy v. NCAA , Congress has long structured federal criminal law to “respect the policy choices of the people of each State on the controversial issue of gambling.” 584 U.S. 453, 484 (2018); see, e.g. ,
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