USCA4 Appeal: 25-1892
Doc: 44
Filed: 12/22/2025
Pg: 36 of 39
that it played merely “an advisory role” and the final decision-making authority rested with the agency. Id. at 693. In contrast, the CEA’s self-certification provisions empower Kalshi—a private, for-profit entity—to oversee its own sports-betting enterprise, yet simultaneously fail to provide any mechanism for advance public comment, mandatory agency oversight, or standards by which the CFTC may implement its discretion. See Farewell Address of Commissioner Kristin N. Johnson, CFTC (Sep. 3, 2025), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/opajohnson25?utm_source= substack&utm_medium=email (warning that the CFTC “[has] too few guardrails and too little visibility into the prediction market landscape”). Further, even according to Kalshi, its self-certification is not merely advisory. Rather, it has the force of law and CFTC inaction is sufficient to trigger preemption. “The result of this regulatory scheme is that [Kalshi] can, without any [CFTC] review of its decision on the merits, effectively decide” to engage in sports betting free from tribal and state regulation. See Alpine Sec. Corp. v. Fin. Indus. Regul. Auth ., 121 F.4th 1314, 1328 (D.C. Cir. 2024). Consequently, construing the CEA to attribute legal effect on state law via Kalshi’s self-certification would be unconstitutional—a construction that must be avoided. See United States v. Simmons , 143 F.4th 200, 208 (4th Cir. 2025) (“Constitutional avoidance principles
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