Case: 25-7516, 01/30/2026, DktEntry: 49.2, Page 18 of 41
interpretation of the CEA that gives full effect to both statutes: the CEA’s definition of “swap”—and thus the CFTC’s jurisdiction over such transactions— simply does not extend to Kalshi’s sports bets. Both the Supreme Court and Ninth Circuit apply the “strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.” Epic Sys. Corp. v. Lewis , 584 U.S. 497, 510 (2018) (citation modified and internal quotation marks omitted); see also Shoshone-Bannock Tribes of Fort Hall Rsrv. v. U.S. Dep’t of the Interior , 153 F.4th 748, 759 (9th Cir. 2025) (“Although a later-enacted statute ‘can sometimes operate to amend or even repeal an earlier statutory provision … , repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.’” (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 662 (2007)). Congress’s intent to repeal must be “clear and manifest.” Epic Sys. , 584 U.S. at 510. “Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Id. at 515 (internal quotation marks omitted). Here, IGRA and the CEA can easily be harmonized by reading the CEA to exclude sports betting, consistent with longstanding CFTC regulations.
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