USCA4 Appeal: 25-1892
Doc: 44
Filed: 12/22/2025
Pg: 35 of 39
III. Kalshi’s Preemption Argument Would Violate the Private Nondelegation Doctrine. Kalshi’s preemption argument turns on the extraordinary claim that Congress delegated the power to preempt state law to an interested private party simply by self-certifying its own sports-betting contracts and listing them on its exchange. The private non-delegation doctrine, however, guards against precisely the type of unchecked, privately exercised powers upon which Kalshi relies. See Carter v. Carter Coal Co. , 298 U.S. 238, 311 (1936) (“This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.”). While the Supreme Court upholds congressional delegations of power to federal agencies with an intelligible principle, it applies a different standard when those delegations are to private entities. “[A] law … violates the private nondelegation doctrine when it allows non-governmental entities to govern.” FCC v. Consumers’ Rsch ., 606 U.S. 656, 697 (2025). Recently, the Supreme Court found 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. The Court upheld the delegation to a private entity, determining
27
Made with FlippingBook - Online catalogs